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CDF FUNDING, INC. - S-3/A - 20040702 - EXHIBIT_4
Exhibit 4.5
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
Seller
DEUTSCHE FINANCIAL SERVICES CORPORATION
Servicer
and
THE CHASE MANHATTAN BANK
Trustee
Distribution Financial Services Floorplan Master Trust
AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2000
TABLE OF CONTENTS
PAGE
ARTICLE I Definitions.............................................................. 1
SECTION 1.1. Definitions......................................................... 1
SECTION 1.2. Other Definitional Provisions....................................... 24
SECTION 1.3. Provisions Relating to Rating Agencies.............................. 25
ARTICLE II Conveyance of Receivables................................................ 25
SECTION 2.1. Conveyance of Receivables........................................... 25
SECTION 2.2. Acceptance by Trustee............................................... 27
SECTION 2.3. Representations and Warranties of the Seller Relating to
the Seller and the Agreement...................................... 27
SECTION 2.4. Representations and Warranties of the Seller Relating to
the Receivables................................................... 30
SECTION 2.5. Addition of Accounts................................................ 31
SECTION 2.6. Covenants of the Seller............................................. 34
SECTION 2.7. Removal of Eligible Accounts........................................ 36
SECTION 2.8. Removal of Ineligible Accounts...................................... 37
SECTION 2.9. Sale of Ineligible Receivables...................................... 39
SECTION 2.10. Removal of Receivables in Connection with Overconcentration
Amount............................................................ 39
ARTICLE III Administration and Servicing of Receivables.............................. 39
SECTION 3.1. Acceptance of Appointment and Other Matters Relating to
the Servicer...................................................... 39
SECTION 3.2. Servicing Compensation.............................................. 41
SECTION 3.3. Representations, Warranties and Covenants of the Servicer........... 41
SECTION 3.4. Reports and Records for the Trustee................................. 44
SECTION 3.5. Annual Servicer's Certificate and Assertion......................... 44
SECTION 3.6. Annual Independent Public Accountants' Attestation and
Agreed Upon Procedures Report..................................... 45
SECTION 3.7. Tax Treatment....................................................... 45
SECTION 3.8. Notices to DFS...................................................... 46
SECTION 3.9. Adjustments......................................................... 46
ARTICLE IV Rights of Holders and Allocation and Application of Collections.......... 46
SECTION 4.1. Rights of Holders................................................... 46
SECTION 4.2. Establishment of the Collection Account............................. 47
SECTION 4.3. Allocations and Applications of Collections and Other Funds......... 48
SECTION 4.4. Unallocated Principal Collections................................... 49
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 4.5. Allocations to the Dealer Overconcentration
Series............................................................ 49
ARTICLE V Distributions and Reports to Certificateholders.......................... 50
ARTICLE VI The Certificates......................................................... 50
SECTION 6.1. The Certificates.................................................... 50
SECTION 6.2. Authentication of Certificates...................................... 50
SECTION 6.3. New Issuances....................................................... 51
SECTION 6.4. Registration of Transfer and Exchange of Certificates............... 53
SECTION 6.5. Mutilated, Destroyed, Lost or Stolen Certificates................... 55
SECTION 6.6. Persons Deemed Owners............................................... 55
SECTION 6.7. Access to List of Registered Certificateholders' Names and
Addresses......................................................... 55
SECTION 6.8. Book-Entry Certificates............................................. 56
SECTION 6.9. Notices to Depository............................................... 57
SECTION 6.10. Definitive Certificates............................................. 57
SECTION 6.11. Global Certificate; Exchange Date................................... 57
SECTION 6.12. Meetings of Certificateholders...................................... 58
ARTICLE VII Other Matters Relating to the Seller..................................... 60
SECTION 7.1. Liability of the Seller............................................. 60
SECTION 7.2. Limitation on Liability of the Seller............................... 60
SECTION 7.3. Seller Indemnification of the Trust and the Trustee................. 60
SECTION 7.4. Liabilities......................................................... 61
ARTICLE VIII Other Matters Relating to the Servicer................................... 61
SECTION 8.1. Liability of the Servicer........................................... 61
SECTION 8.2. Merger or Consolidation of, or Assumption of, the Obligations
of the Servicer................................................... 61
SECTION 8.3. Limitation on Liability of the Servicer and Others.................. 62
SECTION 8.4. Servicer Indemnification of the Trust and the Trustee............... 62
SECTION 8.5. The Servicer Not to Resign.......................................... 63
SECTION 8.6. Access to Certain Documentation and Information
Regarding the Receivables......................................... 63
SECTION 8.7. Delegation of Duties................................................ 63
SECTION 8.8. Examination of Records.............................................. 63
SECTION 8.9. Custodial Arrangements.............................................. 64
ARTICLE IX Early Amortization Events................................................ 64
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 9.1. Early Amortization Events........................................... 64
SECTION 9.2. Additional Rights Upon the Occurrence of Certain Events............. 66
ARTICLE X Servicer Defaults........................................................ 67
SECTION 10.1. Servicer Defaults................................................... 67
SECTION 10.2. Trustee to Act; Appointment of Successor............................ 69
ARTICLE XI The Trustee.............................................................. 70
SECTION 11.1. Duties of Trustee................................................... 70
SECTION 11.2. Certain Matters Affecting the Trustee............................... 72
SECTION 11.3. Trustee Not Liable for Recitals in Certificates..................... 73
SECTION 11.4. Trustee May Own Certificates........................................ 74
SECTION 11.5. The Servicer to Pay Trustee's Fees and Expenses..................... 74
SECTION 11.6. Eligibility Requirements for Trustee................................ 74
SECTION 11.7. Resignation or Removal of Trustee................................... 75
SECTION 11.8. Successor Trustee................................................... 75
SECTION 11.9. Merger or Consolidation of Trustee.................................. 76
SECTION 11.10. Appointment of Co-Trustee or Separate Trustee....................... 76
SECTION 11.11. Tax Returns......................................................... 77
SECTION 11.12. Trustee May Enforce Claims Without Possession of Certificates....... 77
SECTION 11.13. Suits for Enforcement............................................... 78
SECTION 11.14. Representations and Warranties of Trustee........................... 78
SECTION 11.15. Maintenance of Office or Agency..................................... 78
ARTICLE XII Termination.............................................................. 78
SECTION 12.1. Termination of Trust................................................ 78
SECTION 12.2. Final Distribution.................................................. 79
SECTION 12.3. Seller's Termination Rights......................................... 80
ARTICLE XIII Miscellaneous Provisions................................................. 80
SECTION 13.1. Amendment........................................................... 80
SECTION 13.2. Protection of Right, Title and Interest to Trust.................... 82
SECTION 13.3. Limitation on Rights of Certificateholders.......................... 83
SECTION 13.4. No Petition......................................................... 84
SECTION 13.5. GOVERNING LAW....................................................... 84
SECTION 13.6. Notices............................................................. 84
SECTION 13.7. Severability of Provisions.......................................... 85
SECTION 13.8. Assignment.......................................................... 85
SECTION 13.9. Certificates Nonassessable and Fully Paid........................... 85
SECTION 13.10. Further Assurances.................................................. 85
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PAGE
SECTION 13.11. No Waiver, Cumulative Remedies...................................... 85
SECTION 13.12. Counterparts........................................................ 85
SECTION 13.13. Third-Party Beneficiaries........................................... 85
SECTION 13.14. Actions by Certificateholders....................................... 85
SECTION 13.15. Rule 144A Information............................................... 86
SECTION 13.16. Action by Trustee................................................... 86
SECTION 13.17. Merger and Integration.............................................. 86
SECTION 13.18. Headings............................................................ 86
SECTION 13.19. Continued Effectiveness of the Existing Pooling and
Servicing Agreement............................................... 86
SECTION 13.20. Submission to Jurisdiction.......................................... 86
SECTION 13.21. Actions by Seller on Behalf of Trust................................ 87
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EXHIBITS
Exhibit A [Reserved]
Exhibit B Form of Assignment of Receivables in Additional Accounts
Exhibit C Form of Annual Servicer's Certificate
Exhibit D Form of Legends
Exhibit E [Reserved]
Exhibit F Forms of Certificates for European Transfer
Exhibit G Forms of Opinions of Counsel
Exhibit H Form of Reassignment of Receivables in Removed Accounts
SCHEDULES
Schedule 1 List of Accounts
Schedule 2 Designation of Collection Account
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AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT dated as of
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April 1, 2000, among DEUTSCHE FLOORPLAN RECEIVABLES, L.P., a Delaware limited
partnership, as Seller, DEUTSCHE FINANCIAL SERVICES CORPORATION, a Nevada
corporation, as Servicer, and THE CHASE MANHATTAN BANK, a New York banking
corporation, as Trustee.
WHEREAS, each party hereto executed a Pooling and Servicing
Agreement dated as of December 1, 1993, an amended and restated Pooling and
Servicing Agreement dated as of April 1, 1994, an amendment, dated as of January
24, 1996 to the Pooling and Servicing Agreement and an amended and restated
Pooling and Servicing Agreement dated as of October 1, 1996 (as so amended and
restated, the "Existing Pooling and Servicing Agreement") and now wishes to
amend and restate the Existing Pooling and Servicing Agreement;
NOW THEREFORE, in consideration of the mutual agreements herein
contained, each party agrees to amend and restate the Existing Pooling and
Servicing Agreement, for the benefit of the other parties and for the benefit of
the Certificateholders and the other Beneficiaries to the extent provided
herein, as follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. Whenever used in this Agreement, the
following words and phrases shall have the following meanings:
"Account" shall mean each Initial Account and, from and after the
related Addition Date, each Additional Account. The term "Account" shall not
apply to any Removed Accounts reassigned or assigned to the Seller or the
Servicer in accordance with the terms of this Agreement.
"Accounts Receivable" shall mean, with respect to any Dealer, all
amounts shown on such Dealer's records as amounts payable by a customer in
respect of goods or services sold by such Dealer to such customer.
"Accounts Receivable Business" shall mean the extensions of credit
made by DFS or an Approved Affiliate to Dealers in order to finance the Accounts
Receivable of such Dealers.
"Accounts Receivable Financing Agreement" shall mean an accounts
receivable financing agreement entered into by DFS or an Approved Affiliate with
a Dealer in connection with the Accounts Receivable Business with such Dealer.
"Act" shall mean the Securities Act of 1933, as amended.
"Addition Date" shall have the meaning specified in Section 2.5(c).
"Addition Notice" shall have the meaning specified in Section
2.5(c).
"Additional Accounts" shall mean each individual revolving credit
arrangement established by DFS or an Approved Affiliate with a Dealer in
connection with the Floorplan Business, the Accounts Receivable Business, or the
Asset Based Lending Business, which account is designated pursuant to Section
2.5(a) or (b) to be included as an Account and is identified in a computer file
or microfiche or written list delivered to the Trustee by the Seller pursuant to
Sections 2.1 and 2.5(d).
"Additional Cut-Off Date" shall mean, with respect to Additional
Accounts, the day specified in the Addition Notice delivered with respect to
such Additional Accounts pursuant to Section 2.5(c).
"Adjustment Payment" shall have the meaning specified in Section
3.9.
"Affiliate" shall mean, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent" shall mean, with respect to any Series, the Person (if any)
so designated in the related Supplement.
"Agreement" shall mean this Pooling and Servicing Agreement, as the
same may from time to time be amended or supplemented, including, with respect
to any Series or Class, by the related Supplement.
"Allocable Miscellaneous Payments" shall mean, with respect to any
Series and for any Collection Period, the product of the amount of Miscellaneous
Payments for such Collection Period and a fraction, the numerator of which is
the Invested Amount for such Series immediately prior to the following
Distribution Date and the denominator of which is the Trust Invested Amount as
of such time.
"Applicants" shall have the meaning specified in Section 6.7.
"Appointment Date" shall have the meaning specified in Section 9.2.
"Approved Affiliate" shall mean any Affiliate of DFS if the Rating
Agency Condition has been satisfied with respect to designating such Affiliate
as an Approved Affiliate.
"A/R Receivable Overconcentration" on any Determination Date shall
mean the excess, if any, of (a) the aggregate of all amounts of Principal
Receivables in Accounts created pursuant to Accounts Receivable Financing
Agreements as of the last day of the Collection Period immediately preceding
such Determination Date over (b) 20% of the Pool Balance on the last day of such
immediately preceding Collection Period or, if the Rating Agency Condition is
satisfied, such larger percentage of such Pool Balance as is stated in the
applicable notice from each applicable Rating Agency in connection with the
satisfaction of such Rating Agency Condition.
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"A/R Receivables" shall mean Receivables arising from the Accounts
Receivable Business.
"Asset Based Lending Business" shall mean the extensions of credit
made by DFS or an Approved Affiliate to Dealers in order to provide loans based
on the value of certain assets of such Dealer and generally secured by a first
priority security interest in such assets.
"Asset Based Lending Financing Agreement" shall mean an asset based
lending financing agreement entered into by DFS or an Approved Affiliate and a
Dealer in connection with the Asset Based Lending Business with such Dealer.
"Asset Based Receivable Overconcentration" on any Determination Date
shall mean the excess of (a) the aggregate of all amounts of Principal
Receivables in Accounts created pursuant to Asset Based Lending Financing
Agreements on the last day of the Collection Period immediately preceding such
Determination Date over (b) 20% of the Pool Balance on the last day of such
immediately preceding Collection Period or, if the Rating Agency Condition is
satisfied, such larger percentage of such Pool Balance as is stated in the
applicable notice from each applicable Rating Agency in connection with the
satisfaction of such Rating Agency Condition.
"Asset Based Receivables" shall mean Receivables arising from the
Asset Based Lending Business.
"Assignment" shall have the meaning specified in Section 2.5(d).
"Authorized European Newspaper" shall mean a daily newspaper, in the
official language of the country of publication, customarily published at least
once a day for at least five days in each calendar week, and of general
circulation in Luxembourg (or, if not practical in Luxembourg, in Europe)
including, without limitation, the Luxemburger Wort.
"Authorized Newspaper" shall mean any newspaper or newspapers of
general circulation in New York City customarily published on each Business Day,
whether or not published on Saturdays, Sundays and holidays.
"Automatic Addition Condition" shall mean, with respect to the
addition of Accounts pursuant to Section 2.5(c), that, as of the related Notice
Date, (i) during the calendar quarter in which such addition occurs, the number
of new Accounts for Dealers that are financing products of the type already
being financed by DFS and purchasing such products from Existing Manufacturers
does not exceed 5% of the number of all Accounts at the end of the preceding
calendar quarter, (ii) during the twelve months ending at the beginning of such
calendar quarter, the number of such new Accounts does not exceed 20% of the
number of all Accounts at the beginning of such twelve month period, (iii) the
average for the three months preceding the month of such addition of the
aggregate balance of Receivables that have been SAU or NSF for more than 30 days
does not exceed 1.25% of the Pool Balance at the end of the month preceding the
month of such addition, and (iv) the annualized average for such three month
period of the net losses incurred in respect of the Receivables does not exceed
1.75% of the Pool Balance at the end of the month preceding the month of such
addition. An Account that is removed from the Trust pursuant to Section 2.7 for
the purpose of permitting DFS or the
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related Approved Affiliate to convey a Participation Interest in the receivables
arising in such Account and, after such Participation Interest is created, is
designated as an Additional Account pursuant to Section 2.5 and has an Addition
Date that is no more than 45 days after its Removal Date, shall not be a "new
Account" for purposes of this definition.
"Beneficiary" shall mean any of the Holders of the Investor
Certificates, any of the Holders of the Dealer Overconcentration Series and any
Enhancement Provider.
"Benefit Plan" shall have the meaning specified in Section 6.4(c).
"Book-Entry Certificates" shall mean beneficial interests in the
Investor Certificates, ownership and transfers of which shall be made through
book entries by a Depository as described in Section 6.8.
"Business Day" shall mean any day other than (a) a Saturday or a
Sunday or (b) another day on which banking institutions in the state in which
the Corporate Trust Office is located are authorized or obligated by law,
executive order or governmental decree to be closed.
"Cedel" shall mean Centrale de Livraison de Valeurs Mobilieres S.A.
"Certificate" shall mean any of the Investor Certificates or the
Seller's Certificates.
"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of a Book-Entry Certificate.
"Certificate Rate" shall mean, with respect to any Series or Class,
the interest rate, if any, specified therefor in the related Supplement;
provided, however, that the Dealer Overconcentration Series shall not have a
Certificate Rate.
"Certificate Register" shall have the meaning specified in Section
6.4.
"Certificateholder" shall mean an Investor Certificateholder or a
Person in whose name any one of the Seller's Certificates is registered.
"Certificateholders' Interest" shall have the meaning specified in
Section 4.1.
"Class" shall mean, with respect to any Series, any one of the
classes of Investor Certificates of that Series.
"Closing Date" shall mean, with respect to any Series, the Closing
Date specified in the related Supplement.
"Collateral Security" shall mean, with respect to any Receivable,
(i) the security interest, if any, granted by or on behalf of the related Dealer
with respect thereto, including a first priority perfected security interest in
the related Products, Accounts Receivable or assets, (ii) all other security
interests or liens and property subject thereto from time to time purporting to
secure payment of such Receivable, whether pursuant to the agreement giving rise
to such
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Receivable or otherwise, together with all financing statements signed by a
Dealer describing any collateral securing such Receivable, (iii) all guarantees,
insurance and other agreements (including Floorplan Agreements and subordination
agreements with other lenders) or arrangements of whatever character from time
to time supporting or securing payment of such Receivable whether pursuant to
the agreement giving rise to such Receivable or otherwise, and (iv) all Records
in respect of such Receivable.
"Collection Account" shall have the meaning specified in Section
4.2.
"Collection Period" shall mean, with respect to any Distribution
Date, the calendar month preceding the month in which such Distribution Date
occurs.
"Collections" shall mean, without duplication, all payments by or on
behalf of Dealers received by the Servicer in respect of the Receivables
(including proceeds from the realization upon any Collateral Security), in the
form of cash, checks, wire transfers or any other form of payment. Collections
of Non-Principal Receivables shall include all Recoveries.
"Common Depositary" shall mean the Person specified as such in the
applicable Supplement, in its capacity as common depositary for the respective
accounts of any Foreign Clearing Agencies.
"Concentration Limit Percentage" shall have the meaning contemplated
by the definition of Dealer Concentration Limit.
"Corporate Trust Office" shall mean the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Agreement is
located at 450 West 33rd Street, 14th Floor, New York, New York 10001,
Attention: Capital Markets Fiduciary Services, Deutsche Floorplan Receivables.
"Cut-Off Date" shall mean October 31, 1993.
"Date of Processing" shall mean, with respect to any transaction,
the date on which such transaction is first recorded on the Servicer's computer
file of accounts (without regard to the effective date of such recordation).
"Dealer" shall mean a Person engaged generally in the business of
purchasing consumer or commercial products from a manufacturer or distributor
thereof and holding such Products for sale or lease in the ordinary course of
business or a Person engaged generally in the business of manufacturing or
distributing Products for sale to Dealers in the ordinary course of business.
"Dealer Overconcentration" shall be determined by the Servicer on
each Determination Date. A Dealer Overconcentration shall exist with respect to
a Dealer (an "Overconcentrated Dealer") if the aggregate amount of the Principal
Receivables owed by such Dealer exceeds the applicable Dealer Concentration
Limit. "Dealer Concentration Limit" is a dollar amount calculated as a
percentage of the Pool Balance as of the end of each Collection Period (the
"Concentration Limit Percentage"). If the Dealer is among the fifteen Dealers
owing the largest amount of Principal Receivables as of the end of a Collection
Period (the "Top 15
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Dealers"), the Concentration Limit Percentage as of April 20, 2000 is 3%. If the
Dealer is not among the Top 15 Dealers, the Concentration Limit Percentage as of
April 20, 2000 is 2%. The Concentration Limit Percentage for Top 15 Dealers, as
well as the Concentration Limit Percentage for the other Dealers, may be
increased or decreased from time to time by the Seller upon notice to the
Trustee and the Servicer without the consent of any Investor Certificateholder
if the Rating Agency Condition has been satisfied in connection with that
increase or decrease. For purposes of the definitions of Dealer
Overconcentration, Overconcentrated Dealer and Top 15 Dealers, a Dealer and all
of its Affiliates that are Dealers shall be considered to be a single Dealer.
For so long as a Dealer Overconcentration exists, allocations of Principal
Collections, Non-Principal Collections, Defaulted Amounts and Miscellaneous
Payments related to an Overconcentrated Dealer shall be allocated in accordance
with Section 4.5.
"Dealer Overconcentration Series" shall mean an uncertificated
Series known as the "Distribution Financial Services Floorplan Master Trust
Dealer Overconcentration Series."
"Defaulted Amount" on any Determination Date shall mean an amount
(which shall not be less than zero) equal to (a) the sum for all the Accounts of
the amount of Principal Receivables which became Defaulted Receivables during
the immediately preceding Collection Period (or with respect to a particular
Dealer, the amount of Principal Receivables of such Dealer which became
Defaulted Receivables during such Collection Period) minus (b) the full amount
of any such Defaulted Receivables for such Collection Period which are subject
to reassignment or assignment to the Seller or the Servicer in accordance with
the terms of this Agreement (or, with respect to a particular Dealer, the full
amount of such Defaulted Receivables of such Dealer which are subject to
reassignment or assignment to the Seller or the Servicer in accordance with the
terms of this Agreement); provided, however, that, if an Insolvency Event occurs
with respect to the Seller, the amounts of such Defaulted Receivables which are
subject to reassignment to the Seller shall not be included in clause (b) and,
if an Insolvency Event occurs with respect to the Servicer, the amount of such
Defaulted Receivables which are subject to assignment to the Servicer shall not
be included in clause (b).
"Defaulted Receivables" on any Determination Date shall mean (a) all
Receivables (other than all of the Ineligible Receivables) in an Account which
are charged off as uncollectible in respect of the immediately preceding
Collection Period in accordance with the Servicer's customary and usual
servicing procedures for servicing Dealer receivables comparable to the
Receivables which have not been sold to third parties and (b) all Receivables
which were Eligible Receivables when transferred to the Trust on the initial
Closing Date or the related Addition Date or on their respective Transfer Date,
which arose in an Account that thereafter became an Ineligible Account and which
remained outstanding for any six consecutive Determination Dates (inclusive of
the Determination Date on which such determination is being made) after such
Account became an Ineligible Account.
"Definitive Certificates" shall have the meaning specified in
Section 6.8.
"Definitive Euro-Certificates" shall have the meaning specified in
Section 6.11.
"Delayed Funding Receivable" shall mean a Receivable in respect of
which the related Floorplan Agreement permits DFS or an Approved Affiliate to
delay payment of the
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purchase price of the related Product to the Manufacturer for a specified period
after the invoice date for such Product; provided that such Receivable shall be
a Delayed Funding Receivable only until DFS or such Approved Affiliate funds the
payment of such purchase price. Notwithstanding anything herein to the contrary,
if the Rating Agency Condition is satisfied, then the Receivables referred to in
the preceding sentence shall not be Delayed Funding Receivables and the
provisions herein relating to Delayed Funding Receivables shall no longer be of
any force or effect.
"Deposit Date" shall mean each day on which the Servicer deposits
Collections in the Collection Account pursuant to Section 4.3 hereof.
"Depository" shall mean The Depository Trust Company, as initial
Depository, the nominee of which is CEDE & Co., or any other organization
registered as a "clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. The Depository shall at all times be a
"clearing corporation" as defined in Section 8-102(3) of the Uniform Commercial
Code of the State of New York.
"Depository Agreement" shall mean, with respect to any Series or
Class, an agreement among the Trust, the Trustee and the initial Depository. The
Seller is hereby authorized to enter into each Depository Agreement on behalf of
the Trust.
"Depository Participant" shall mean a broker, dealer, bank or other
financial institution or other Person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Designated Account" shall have the meaning specified in Section
2.8(b).
"Designated Balance" shall have the meaning specified in Section
2.8(b).
"Determination Date" with respect to any Distribution Date shall
mean the day that is two Business Days prior to such Distribution Date.
"Deutsche FRI" shall mean Deutsche Floorplan Receivables, Inc., a
Nevada corporation, and its successors and assigns.
"Deutsche FRLP" shall mean Deutsche Floorplan Receivables, L.P., a
Delaware limited partnership, and its successors.
"Deutsche FRLP Certificate" shall mean the certificate executed by
the Seller and authenticated by the Trustee, substantially in the form of
Exhibit A to the Existing Pooling and Servicing Agreement.
"Deutsche North America" shall mean Deutsche Bank Americas Holding
Corp., a Delaware corporation, and its successors in interest.
"DFS" shall mean Deutsche Financial Services Corporation, a Nevada
corporation, and its successors and assigns.
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"Discount Factor" shall initially mean 0.50% and shall be adjusted
as provided in this definition. If on any Distribution Date the Net Receivables
Rate for such Distribution Date less (i) the weighted average of the Certificate
Rates (as determined in accordance with this definition) for all outstanding
Series (other than the Dealer Overconcentration Series) for such Distribution
Date less (ii) the annualized Net Loss Rate for the preceding twelve Collection
Periods is less than 1%, then the Discount Factor for such Distribution Date
shall be adjusted upwards, rounded up to the nearest 0.1% (but in no event to
exceed 1%), so that the Net Receivables Rate less the rate in clause (i) less
the rate in clause (ii) shall be equal to 1%; and the Discount Factor shall
remain at such adjusted percentage until it is further adjusted by the terms of
this sentence or either of the following two sentences. Notwithstanding the
foregoing, the Seller, at its discretion, may increase or decrease the Discount
Factor, but in no event shall the Discount Factor exceed 1% or be less than the
percentage required by the immediately preceding sentence or be greater than the
percentage required by the next sentence. Notwithstanding the foregoing, if the
application of the Discount Factor would cause the Pool Balance to be less than
the Required Participation Amount, then the Discount Factor shall be the
percentage (which shall in no event be less than 0%), rounded down to the
nearest 0.1%, which, when applied, shall cause the Pool Balance to at least
equal the Required Participation Amount. For purposes of this definition, (i) if
a Certificate Rate is calculated as the lesser of (x) a fixed rate or a formula
rate and (y) the Net Receivables Rate, then such Certificate Rate shall be the
rate in clause (x) and (ii) if an interest rate swap agreement provides the
interest distributable on a Series or Class of Investor Certificates, then the
Certificate Rate for such Series or Class of Investor Certificates shall be the
interest rate payable by the Trust to the related swap counterparty.
"Discount Portion" shall mean, with respect to a Receivable, the
portion thereof equal to the product of the Discount Factor and the outstanding
principal balance of such Receivable.
"Distribution Date" shall mean the fifteenth day of each month or,
if such day is not a Business Day, the next succeeding Business Day.
"Distribution Date Statement" shall mean, with respect to any
Series, a report prepared by the Servicer on each Determination Date for the
immediately preceding Collection Period in substantially the form set forth in
the related Supplement.
"Duff & Phelps" shall mean Duff & Phelps Credit Rating Co. or its
successor.
"Early Amortization Event" shall have the meaning specified in
Section 9.1 and, with respect to any Series, shall also mean any Early
Amortization Event specified in the related Supplement.
"Early Amortization Period" shall mean, with respect to any Series,
the period beginning at the close of business on the Business Day immediately
preceding the day on which the Early Amortization Event is deemed to have
occurred and ending upon the earliest to occur of (a) the payment in full to the
Investor Certificateholders of such Series of the Invested Amount with respect
to such Series, (b) the Termination Date with respect to such Series and (c) if
such Early Amortization Period has resulted from the occurrence of an Early
Amortization Event described in Section 9.1(a), the end of the first Collection
Period during which an Early
8
Amortization Event would no longer be deemed to exist pursuant to Section
9.1(a), so long as no other Early Amortization Event with respect to such Series
shall have occurred and the scheduled termination of the Revolving Period with
respect to such Series shall not have occurred. The Dealer Overconcentration
Series shall not have an Early Amortization Period.
"Eligible Account" shall mean each individual revolving credit
arrangement payable in U.S. dollars and established by DFS or an Approved
Affiliate with a Dealer in the ordinary course of business pursuant to a
Financing Agreement, which arrangement, as of the date of determination with
respect thereto: (a) is in favor of a Dealer (i) which is doing business in the
United States of America (including its territories and possessions), (ii) which
has not been identified by the Servicer as being the subject of any voluntary or
involuntary bankruptcy proceeding or being in a voluntary or involuntary
liquidation, and (iii) in which the direct controlling shareholder of DFS (which
is currently Deutsche North America) or any Affiliate thereof does not have an
equity investment, (b) is in existence and maintained and serviced by DFS or an
Approved Affiliate and (c) is an Account in respect of which no amounts have
been charged off as uncollectible.
"Eligible Deposit Account" shall mean either (a) a segregated
account with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution or trust company
organized under the laws of the United States of America or any one of the
states thereof, or the District of Columbia (or any domestic branch of a foreign
bank), having corporate trust powers and acting as trustee for funds deposited
in such account, so long as any of the securities of such depository institution
or trust company shall have a credit rating from each Rating Agency in one of
its rating categories which signifies investment grade.
"Eligible Institution" shall mean (a) the corporate trust department
of the Trustee or (b) a depository institution or trust company organized under
the laws of the United States of America or any one of the states thereof, or
the District of Columbia (or any domestic branch of a foreign bank), which at
all times (i) has either (A) a long-term unsecured debt rating of A2 or better
by Moody's, AAA by Standard & Poor's and, if Fitch has rated such debt, AA- or
better by Fitch or such other rating that is acceptable to each Rating Agency,
as evidenced by a letter from such Rating Agency to the Trustee or (B) a
certificate of deposit rating of P-1 by Moody's, A-1+ by Standard & Poor's and,
if Fitch has rated such certificate of deposit, F-1+ by Fitch or such other
rating that is acceptable to each Rating Agency, as evidenced by a letter from
such Rating Agency to the Trustee and (ii) whose deposits are insured by the
FDIC. If so qualified, the Trustee may be considered an Eligible Institution for
the purposes of clause (b) of this definition.
"Eligible Investments" shall mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form having original or remaining maturities of 30 days or less, but in no event
occurring later than the Distribution Date next succeeding the Trustee's
acquisition thereof, which evidence:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
9
(b) demand deposits, time deposits or certificates of deposit of
any depository institution or trust company incorporated under the laws of
the United States of America or any state thereof (or any domestic branch
of a foreign bank) and subject to supervision and examination by Federal
or state banking or depository institution authorities; provided, however,
that at the time of the Trust's investment or contractual commitment to
invest therein, the commercial paper or other short-term unsecured debt
obligations (other than such obligations the rating of which is based on
the credit of a person or entity other than such depository institution or
trust company) thereof shall have a credit rating from each of the Rating
Agencies in the Highest Investment Category granted thereby;
(c) commercial paper having, at the time of the Trust's investment
or contractual commitment to invest therein, a rating from each of the
Rating Agencies in the Highest Investment Category granted thereby;
(d) investments in money market funds having a rating from each of
the Rating Agencies in the Highest Investment Category granted thereby or
otherwise approved in writing thereby;
(e) bankers' acceptances issued by any depository institution or
trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of America
or any agency or instrumentality thereof the obligations of which are
backed by the full faith and credit of the United States of America, in
either case entered into with a depository institution or trust company
(acting as principal) described in clause (b); and
(g) any other investment as to which (x) the Rating Agency
Condition has been satisfied and (y) the Seller certifies will not result
in the Seller or the Trust becoming an "investment company" under the
Investment Company Act.
"Eligible Receivable" shall mean each Receivable:
(a) which was originated or acquired by DFS or the related
Approved Affiliate in the ordinary course of business;
(b) which arose under an Eligible Account;
(c) which is owned by DFS or the related Approved Affiliate at the
time of sale or contribution by DFS or the related Approved Affiliate to
the Seller;
(d) which represents the obligation of a Dealer to repay an
advance made or to be made to or on behalf of such Dealer (i) to finance
the acquisition of Products or (ii) in connection with the Accounts
Receivable Business or the Asset Based Lending Business;
(e) which at the time of creation and, except at the Closing Date
for the initial Series in the case of Receivables in respect of which the
related financed Product has been sold, at the time of transfer to the
Trust is secured, to the extent required by the
10
related Financing Agreement, by, inter alia, a first priority perfected
security interest (whether by prior filing, purchase money security
interest statutory priority, or subordination agreement from prior filers
or otherwise) in the related Product, Accounts Receivable other assets
financed by the related advance (except that such security interest need
not be a first priority security interest (x) in the case of a Receivable
arising in an Account for which the payment terms are on a scheduled
payment plan basis and the maximum credit line is $250,000 or less and
which was included as an Account hereunder on or before the Closing Date
for Series 1994-1 or (y) in the case of any Receivable if the Rating
Agency Condition is satisfied with respect thereto); and the perfection of
such security interest is governed by the laws of one or more of the
states of the United States, the District of Columbia or, if the Rating
Agency Condition is satisfied, a territory or possession of the United
States;
(f) which was created in compliance in all respects with all
Requirements of Law applicable thereto and pursuant to a Financing
Agreement which complies in all respects with all Requirements of Law
applicable to any party thereto;
(g) with respect to which all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained, effected or given by DFS, the related
Approved Affiliate or the Seller in connection with the creation of such
Receivable or the transfer thereof to the Trust or the execution, delivery
and performance by DFS or the related Approved Affiliate of the Financing
Agreement pursuant to which such Receivable was created, have been duly
obtained, effected or given and are in full force and effect;
(h) as to which at all times following the transfer of such
Receivable to the Trust, the Trust shall have (x) good and marketable
title thereto free and clear of all Liens arising prior to the transfer or
arising at any time other than Liens permitted by this Agreement, or (y) a
first priority perfected security interest therein and in the related
Collateral Security (and in the proceeds thereof);
(i) which shall at all times be the legal, valid, binding and
assignable payment obligation of the Dealer relating thereto, enforceable
against such Dealer in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws, now or hereafter in
effect, affecting the enforcement of creditors' rights in general and
except as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity);
(j) which at the time of transfer to the Trust is not subject to
any valid claim of a right of rescission, setoff, counterclaim or any
other defense (including defenses arising out of violations of usury laws)
of the Dealer;
(k) as to which, at the time of transfer of such Receivable to the
Trust, DFS, the related Approved Affiliate and the Seller have satisfied
all their respective obligations with respect to such Receivable required
to be satisfied at such time (whether pursuant to the related Financing
Agreement, the related Floorplan Agreement or otherwise);
11
(l) as to which, at the time of transfer of such Receivable to the
Trust, neither DFS, the related Approved Affiliate nor the Seller has
taken or failed to take any action which would impair the rights of the
Trust or the Certificateholders therein;
(m) which constitutes "chattel paper", an "account" or a "general
intangible", and is not represented by an "instrument," each as defined in
Article 9 of the UCC as then in effect in the State of Missouri; provided
that the Financing Agreement giving rise to such Receivable may be subject
by its terms, or by judicial interpretation, to the laws of other states;
(n) with respect to which the representations set forth in
Sections 2.4(a)(i) and (ii) were correct as of the Transfer Date with
respect thereto; and
(o) if such Receivable has the benefit of a Floorplan Agreement,
such Floorplan Agreement provides that the related Manufacturer is
obligated, subject to the specific terms of such Floorplan Agreement
(which may vary among Floorplan Agreements), to repurchase Products that
the Servicer repossesses upon a default by the related Dealer.
"Eligible Servicer" shall mean the Trustee or an entity which, at
the time of its appointment as Servicer, (a) is legally qualified and has the
capacity to service the Accounts, (b) has demonstrated the ability to
professionally and competently service a portfolio of similar accounts in
accordance with high standards of skill and care and (c) is qualified to use the
software that is then currently being used to service the Accounts or obtains
the right to use or has its own software which is adequate to perform its duties
under this Agreement.
"Enhancement" shall mean the rights and benefits provided to the
Investor Certificateholders of any Series or Class pursuant to any letter of
credit, surety bond, cash collateral account, spread account, guaranteed rate
agreement, maturity liquidity facility, tax protection agreement, interest rate
swap agreement or other similar arrangement. The subordination of any Series or
Class to any other Series or Class or of the Seller's Interest to any Series or
Class shall be deemed to be an Enhancement. Enhancement provided to a particular
Series or Class shall not be available to another Series or Class unless the
applicable Enhancement Agreement otherwise provides.
"Enhancement Agreement" shall mean any agreement, instrument or
document governing the terms of any Enhancement or pursuant to which any
Enhancement is issued or outstanding.
"Enhancement Provider" shall mean the Person providing any
Enhancement, other than any Certificateholders (including any holders of the
Seller's Certificates) the Certificates of which are subordinated to any Series
or Class.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Euroclear Operator" shall mean Morgan Guaranty Trust Company of New
York, Brussels office, as operator of the Euroclear System.
12
"Exchange Date" shall mean any date that is after the Series
Issuance Date, in the case of Definitive Euro-Certificates in registered form,
or upon presentation of certification of non-United States beneficial ownership
(as described in Section 6.11), in the case of Definitive Euro-Certificates in
bearer form.
"Existing Manufacturer" shall mean (i) each Manufacturer with which
DFS has entered into a business arrangement, either through a Floorplan
Agreement or any other arrangement, on or prior to the Closing Date for Series
1994-1, (ii) each Manufacturer with which DFS enters into such a business
arrangement after the Closing Date for Series 1994-1 so long as the aggregate
balances of the Receivables subject to such Floorplan Agreement do not exceed
lesser of (a) 1% of the Pool Balance at the beginning of the Collection Period
in which the addition of the related Additional Account occurs and (b) $25
million and (iii) each Manufacturer with which DFS enters into such a business
arrangement after the Closing Date for Series 1994-1 and as to which the Rating
Agency Condition is satisfied.
"Existing Pooling and Servicing Agreement" shall have the meaning
set forth in the recitals.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor entity thereto.
"Final Maturity Date" shall have the meaning specified in Section
12.1.
"Financing Agreement" shall mean any Wholesale Financing Agreement,
Accounts Receivable Financing Agreement or Asset Based Lending Financing
Agreement.
"Financing Guidelines" shall mean DFS's written policies and
procedures, as such policies and procedures may be amended from time to time,
(a) relating to the operation of the Floorplan Business, the Accounts Receivable
Business and the Asset Based Lending Business, including the written policies
and procedures for determining the interest rate, if any, charged to Dealers,
the other terms and conditions relating to DFS's wholesale financing accounts,
the creditworthiness of Dealers and the extension of credit to Dealers, and (b)
relating to the maintenance of accounts and collection of receivables.
"Fitch" shall mean Fitch IBCA, Inc. or its successor.
"Floorplan Agreement" shall mean an agreement, entered into by DFS
or the related Approved Affiliate and a Manufacturer pursuant to which such
Manufacturer agrees, among other matters, to repurchase from DFS or such
Approved Affiliate, as applicable, Products sold by such Manufacturer to any of
its Dealers and financed by DFS or such Approved Affiliate under a Wholesale
Financing Agreement if DFS or such Approved Affiliate acquires possession of
such Products because of a default by such Dealer under such Wholesale Financing
Agreement, voluntary surrender or other circumstances.
"Floorplan Business" shall mean the extensions of credit made by DFS
or the related Approved Affiliate to Dealers in order to finance Products
purchased by Dealers from Manufacturers.
13
"Floorplan Receivables" shall mean Receivables arising from the
Floorplan Business.
"Foreign Clearing Agency" shall mean Cedel and the Euroclear
Operator.
"Global Certificate" shall have the meaning specified in Section
6.11.
"Governmental Authority" shall mean the United States of America,
any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Highest Investment Category" means, with respect to a Rating
Agency, the highest long-term or short-term rating given by that Rating Agency
with respect to long-term or short-term obligations or investments, as the case
may be.
"Holder" shall mean a Certificateholder.
"Ineligible Account" shall mean an Account that at the time of
determination is not an Eligible Account.
"Ineligible Amount" on any Determination Date shall mean the amount
of Ineligible Receivables included in the Trust on such Determination Date.
"Ineligible Receivable" shall mean, without duplication, (i) any
Receivable that arises in an Eligible Account, was not an Eligible Receivable at
the time of its transfer to the Trust and was transferred to the Trust in
accordance with Section 2.9, (ii) any Receivable that, at the time of its
transfer to the Trust, has been SAU or NSF for more than 30 days, and (iii) the
aggregate of Receivables that, at the time of transfer of each such Receivable
to the Trust, have been SAU or NSF for a period of one to 30 days but only to
the extent that such aggregate amount exceeds 0.75% of the Pool Balance at the
end of such Collection Period.
"Initial Account" shall mean each individual revolving credit
arrangement established by DFS or an Approved Affiliate with a Dealer which was
identified in the computer file or microfiche or written list delivered to the
Trustee on the Closing Date for the Series issued in 1993 by the Seller pursuant
to Section 2.1.
"Initial Invested Amount" shall mean, with respect to any Series and
for any date, an amount equal to the initial invested amount specified in the
related Supplement. The Initial Invested Amount for any Series may be increased
or decreased from time to time as specified in the related Supplement. However,
the Dealer Overconcentration Series shall not have an Initial Invested Amount.
"Insolvency Event" shall mean any event specified in Section 9.1(b)
or 9.1(c).
"Insolvency Proceeds" shall have the meaning specified in Section
9.2(b).
"Insurance Proceeds" with respect to an Account shall mean any
amounts received by the Servicer pursuant to any policy of insurance which are
required to be paid to
14
DFS pursuant to a Wholesale Financing Agreement, Accounts Receivable Financing
Agreement or Asset Based Lending Financing Agreement.
"Internal Revenue Code" shall mean the Internal Revenue Code of
1986, as amended.
"Invested Amount" shall mean, with respect to any Series and at the
time of determination thereof, an amount equal to the invested amount specified
in the related Supplement at such time. However, the Dealer Overconcentration
Series shall not have an Invested Amount.
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended.
"Investor Certificateholder" shall mean the Person in whose name a
Registered Certificate is registered in the Certificate Register or the bearer
of any Global Certificate and, with respect to the Dealer Overconcentration
Series, shall mean the Person or Persons in whose name an interest in the Dealer
Overconcentration Series is registered in the Certificate Register.
"Investor Certificates" shall mean any one of the certificates
(including the Registered Certificates or any Global Certificate) executed by
the Seller and authenticated by or on behalf of the Trustee, substantially in
the form attached to the related Supplement other than the Seller's
Certificates. The Dealer Overconcentration Series shall not be evidenced by any
certificate.
"Investors' Servicing Fee" shall mean the portion of the Servicing
Fee allocable to the Investor Certificateholders pursuant to the terms of the
Supplements.
"Lien" shall mean any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), preference, participation interest, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever,
including any conditional sale or other title retention agreement, any financing
lease having substantially the same economic effect as any of the foregoing and
the filing of any financing statement under the UCC or comparable law of any
jurisdiction to evidence any of the foregoing; provided, however, that (i) any
assignment permitted by Section 8.2, (ii) any Lien created by this Agreement,
any Supplement or any Participation Agreement, (iii) any security interests in
Products or Accounts Receivable that are subordinate to the security interests
securing the related Receivables and (iv) any inchoate lien that arises by
operation of law, is not delinquent or due and affects collateral securing a
Receivable (but does not encumber any Receivable) shall not be deemed to
constitute a Lien.
"Manager" shall mean the lead manager, manager or co-manager or
person performing a similar function with respect to an offering of Definitive
Euro-Certificates.
"Manufacturer" shall mean a Person engaged generally in the business
of manufacturing or distributing Products for sale or lease to Dealers in the
ordinary course of business.
15
"Manufacturer Overconcentration" on any Determination Date shall
mean, with respect to all Accounts covered by a Floorplan Agreement with the
same Manufacturer as obligor, the excess of (a) the aggregate of all amounts of
Principal Receivables in such Accounts on the last day of the Collection Period
immediately preceding such Determination Date that are covered by such Floorplan
Agreement over (b) 15% of the Pool Balance on the last day of such immediately
preceding Collection Period or, if the Rating Agency Condition is satisfied,
such larger percentage of such Pool Balance as is stated in the notice from each
applicable Rating Agency in connection with the satisfaction of such Rating
Agency Condition.
"Miscellaneous Payments" shall mean, with respect to any Collection
Period and the related Distribution Date, the sum of (a) Adjustment Payments and
Transfer Deposit Amounts on deposit in the Collection Account on such
Distribution Date and (b) Unallocated Principal Collections available to be
treated as Miscellaneous Payments pursuant to Section 4.4 on such Distribution
Date.
"Monthly Payment Rate" shall mean, unless otherwise specified for a
Series in the related Supplement, for any Collection Period, the percentage
derived from dividing the Principal Collections (without excluding therefrom the
Discount Portions) collected during such Collection Period by the aggregate
balance of the Principal Receivables (without deducting therefrom the Discount
Portions) as of the beginning of such Collection Period.
"Monthly Servicing Fee" shall mean, with respect to any Series, the
amount specified therefor in the related Supplement.
"Moody's" shall mean Moody's Investors Service, Inc., or its
successor.
"Net Loss Rate" shall mean, with respect to a Collection Period, the
percentage derived from a fraction, the numerator of which is the aggregate of
the net losses on Receivables (exclusive of the Ineligible Receivables) that
were charged off during such Collection Period (i.e., gross losses less any
recoveries (including recoveries from Collateral Security) received in such
Collection Period in respect of charged off Receivables, whether such charge off
occurred in such Collection Period or a prior Collection Period) and the
denominator of which is the aggregate of the Principal Receivables (without
deducting therefrom the Discount Portions) in the Trust at the beginning of such
Collection Period.
"Net Receivables Rate" shall mean, with respect to a Distribution
Date and unless otherwise specified for a Series in the related Supplement, (i)
the weighted average of the interest rates borne by the Receivables during the
second Collection Period preceding such Distribution Date (interest payments on
the Receivables at such rates being due and payable in the Collection Period
preceding such Distribution Date) plus (ii) the product of (x) the Monthly
Payment Rate for the Collection Period preceding such Distribution Date, (y) the
Discount Factor for such Distribution Date and (z) twelve less (iii) 2% per
annum.
"Non-Principal Collections" shall mean the sum of (a) Collections of
interest and all other non-principal charges (including insurance service fees
and handling fees) on the Receivables, (b) the product of (i) principal payments
on the Receivables and (ii) the Discount Factor, and (c) all Recoveries.
16
"Non-Principal Receivables" with respect to any Account shall mean
all amounts billed to the related Dealer in respect of interest and all other
non-principal charges.
"Notice Date" shall have the meaning specified in Section 2.5(c).
"NSF" shall mean, with respect to a Receivable, that a check in
payment of such Receivable has been returned because of insufficient funds and
has not thereafter been paid.
"Officers' Certificate" with respect to any corporation (in the case
of the Seller, the Officers' Certificate shall be with respect to Deutsche FRI)
shall mean, unless otherwise specified in this Agreement, a certificate signed
by (a) the Chairman of the Board, Vice Chairman of the Board, President or any
Vice President and (b) a Treasurer, Associate or Assistant Treasurer, Secretary
or Assistant Secretary of such corporation.
"Opinion of Counsel" shall mean a written opinion of counsel, who
may be counsel of the Seller or DFS and who shall be acceptable to the Trustee.
"Overconcentrated Dealer" shall have the meaning specified in the
definition of Dealer Overconcentration.
"Overconcentration Amount" on any Determination Date shall mean the
sum of the Asset Based Receivable Overconcentration, the A/R Receivable
Overconcentration, the Manufacturer Overconcentrations and the Product Line
Overconcentrations on such Determination Date.
"Overconcentration Percentage" on any Determination Date shall mean,
with respect to an Overconcentrated Dealer, the percentage equivalent of a
fraction, (a) the numerator of which is equal to the result of (i) the aggregate
amount of Principal Receivables in all Accounts of such Dealer as of the end of
the Collection Period immediately preceding such Determination Date, minus (ii)
the product of (A) the Concentration Limit Percentage for such Overconcentrated
Dealer, and (B) the Unconcentrated Pool Balance as of the end of such Collection
Period, and (b) the denominator of which is the amount determined in accordance
with clause (a)(i).
"Participation Agreement" shall mean an agreement between DFS or an
Approved Affiliate and a lender (i) pursuant to which DFS or such Approved
Affiliate, as applicable, conveys to such lender an undivided interest in
certain receivables that is pari passu in all respects (other than
nonsubordinated interest strips and fees) with the undivided interest retained
by DFS or such Approved Affiliate, as applicable, and (ii) that satisfies the
applicable requirements of the Receivables Contribution and Sale Agreement.
"Participation Interest" shall mean the undivided interest, created
pursuant to a Participation Agreement, in a receivable in which a Receivable
represents the remaining undivided interest. The Trustee is hereby authorized to
execute and deliver any documentation reasonably requested and prepared by the
Seller in order to effect and evidence any Participation Interest, subject in
each case to the terms and conditions of this Agreement and the Receivables
Contribution and Sale Agreement.
17
"Paying Agent" shall mean any Person authorized by the Trustee to
make distributions of principal of or interest on any Certificates on behalf of
the Trustee.
"Permitted Transactions" shall have the meaning specified in Section
2.6(f).
"Person" shall mean any legal person, including any individual,
corporation, partnership, association, limited liability company, joint-stock
company, trust, unincorporated organization, governmental entity or other
entity.
"Pool Balance" shall mean, as of the time of determination thereof,
the product of (a) the aggregate of Principal Receivables (without deducting
therefrom the Discount Portion) in the Trust at such time (other than all
Ineligible Receivables) and (b) 1 minus the Discount Factor.
"Principal Collections" shall mean Collections under the Receivables
other than Non-Principal Collections.
"Principal Receivables" with respect to an Account shall mean
amounts shown on the Servicer's records as Receivables (other than such amounts
which represent Non-Principal Receivables and Discount Portions) payable by the
related Dealer.
"Principal Terms" shall mean, with respect to any Series, one or
more of the following items, not all of which will necessarily apply to each
Series: (a) the name or designation; (b) the initial principal amount (or method
for calculating such amount), if applicable; (c) the Certificate Rate or
Certificate Rates (or method for the determination thereof); (d) the payment
date or dates and the date or dates from which interest shall accrue; (e) the
method for allocating Collections to Investor Certificateholders; (f) the
designation of any Series Accounts and the terms governing the operation of any
such Series Accounts; (g) the Monthly Servicing Fee and the Investors' Servicing
Fee; (h) any Enhancement Provider for and terms of any form of Enhancement with
respect thereto; (i) the terms on which the Investor Certificates of such Series
may be exchanged for Investor Certificates of another Series, repurchased,
redeemed in an optional redemption or mandatory redemption or remarketed to
other investors; (j) the Termination Date; (k) the number of Classes of Investor
Certificates of such Series and, if more than one Class, the rights and
priorities of each such Class; (l) the extent to which the Investor Certificates
of such Series shall be issuable in temporary or permanent global form (and, in
such case, the depositary for such Global Certificate or certificates, the terms
and conditions, if any, upon which such Global Certificate may be exchanged, in
whole or in part, for Definitive Certificates, and the manner in which any
interest payable on a temporary or Global Certificate shall be paid); (m)
whether the Investor Certificates of such Series may be issued in bearer form
and any limitations imposed thereon; (n) the priority of such Series with
respect to any other Series; (o) whether such Series shall be part of a group;
(p) the date on which such Series will begin its accumulation period,
amortization period or controlled amortization period, if any; and (q) any other
terms of such Series which are permitted or not prohibited by this Agreement.
"Product Line Overconcentration" on any Determination Date shall
mean, with respect to Accounts created pursuant to Wholesale Financing
Agreements, the excess of (a) the aggregate of all amounts of Principal
Receivables in such Accounts that represent financing for a single Product line
(according to DFS's classification system) on the last day of the Collection
18
Period immediately preceding such Determination Date over (b) (i) 25% of the
Pool Balance on the last day of such immediately preceding Collection Period if
such Product line is not computers and related equipment and (ii) 40% of such
Pool Balance if such Product line is computers and related equipment or, in the
case of clause (i) or (ii), if the Rating Agency Condition is satisfied, such
larger percentage of such Pool Balance as is stated in the applicable notice
from each applicable Rating Agency in connection with the satisfaction of such
Rating Agency Condition.
"Products" shall mean the commercial and consumer goods financed by
DFS or the related Approved Affiliate for Dealers pursuant to a Wholesale
Financing Agreement.
"Purchase Price" shall mean, with respect to any Receivable for any
date on which such Receivable is to be purchased pursuant to Section 3.3 or by
DFS as a result of the breach of representations and warranties in the
Receivables Contribution and Sale Agreement, (a) an amount equal to the amount
payable by the Dealer in respect thereof as reflected in the records of the
Servicer as of the date of purchase plus (b) interest accrued (to the extent
interest accrues on such Receivable) from the end of the last Collection Period
in respect of which interest on such Receivable was billed by the Servicer, at a
per annum rate equal to the rate being charged to the Dealer under the Wholesale
Financing Agreement, Accounts Receivable Financing Agreement or Asset Based
Lending Financing Agreement, as the case may be, based on the actual number of
days elapsed over a year of 360 days.
"Rating Agency" shall mean, with respect to any outstanding Series
or Class, each statistical rating agency, if any, selected by the Seller to rate
the Investor Certificates of such Series or Class.
"Rating Agency Condition" shall mean, with respect to any action,
that each Rating Agency shall have notified the Seller, the Servicer and the
Trustee in writing that such action shall not result in a reduction or
withdrawal of such Rating Agency's rating of any outstanding Series or Class
with respect to which it is a Rating Agency. The Rating Agency Condition shall
be inapplicable at any time that no such Series or Class is outstanding.
"Reassignment" shall have the meaning specified in Section 2.7(c).
"Receivables" shall mean, with respect to an Account, all amounts
payable (including interest, finance charges and other charges), and the
obligation to pay such amounts, by the related Dealer from time to time in
respect of advances made by DFS or the related Approved Affiliate to or on
behalf of such Dealer in connection with the Floorplan Business, the Accounts
Receivable Business, or the Asset Based Lending Business, as the case may be,
together with the group of writings evidencing such amounts and the security
interest created in connection therewith and all of the rights, remedies, powers
and privileges thereunder (including under the related Financing Agreement);
provided that if a Participation Interest has been created in respect of such
Account, whether before or after that Account has been designated as an Account,
the amounts so payable by the related Dealer that are allocable to such
Participation Interest shall not be part of the "Receivables" in respect of such
Account. A Receivable that, prior to its transfer to the Seller, was subject to
a participation from an Approved Affiliate in favor of DFS shall be considered a
Receivable. Receivables which become Defaulted
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Receivables shall remain in the Trust but shall cease to be included in the Pool
Balance on the day on which they become Defaulted Receivables. Delayed Funding
Receivables shall cease to be included as Receivables on the day on which an
Insolvency Event in respect of DFS occurs, whether or not such Delayed Funding
Receivables are funded after the occurrence of such Insolvency Event.
Receivables which DFS or the related Approved Affiliate is unable to transfer to
the Seller pursuant to the Receivables Contribution and Sale Agreement or which
the Seller is unable to transfer to the Trust as provided in Section 2.6(b) and
Receivables which arise in Designated Accounts from and after the related
Removal Commencement Date shall not be included in calculating the Pool Balance.
"Receivables Contribution and Sale Agreement" shall mean the
Receivables Contribution and Sale Agreement as amended and restated as of
October 1, 1996 among DFS, Deutsche Business Services Corporation and the Seller
(and any Affiliate of DFS which may become a party thereto from time to time).
"Record Date" shall mean, with respect to any Distribution Date, the
close of business on the day preceding such Distribution Date; provided that
with respect to any Distribution Date for a Series for which Definitive
Certificates have been issued pursuant to Section 6.10, subsequent to the
issuance of such Definitive Certificates the Record Date for such Distribution
Date shall be the last day of the month preceding the month in which such
Distribution Date occurs.
"Records" shall mean, with respect to any Receivable, all documents,
books, records and other information (including, without limitation, computer
programs, tapes, discs, punch cards, data processing software and related
property and rights) relating to such Receivable and the related Dealer.
"Recoveries" on any Determination Date shall mean all amounts
received, including Insurance Proceeds, by the Servicer during the Collection
Period immediately preceding such Determination Date with respect to Receivables
which have previously become Defaulted Receivables.
"Reference Rate" shall mean the per annum rate of interest, if any,
designated from time to time by DFS or the related Approved Affiliate, as
applicable, to a Wholesale Financing Agreement, A/R Financing Agreement or Asset
Based Lending Financing Agreement.
"Registered Certificateholder" shall mean the Holder of a Registered
Certificate.
"Registered Certificates" shall have the meaning specified in
Section 6.1.
"Related Accounts" shall mean all Accounts relating to a single
Dealer.
"Related Documents" shall mean, collectively, the Receivables
Contribution and Sale Agreement and, with respect to any Series, any applicable
Enhancement Agreement.
"Removal Commencement Date" shall have the meaning specified in
Section 2.8(a).
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"Removal Date" shall mean a date specified in a Removal Notice as
the date on which the applicable Accounts are to be removed.
"Removal Notice" shall mean a notice delivered by the Seller (or the
Servicer on its behalf) pursuant to Section 2.7 or 2.8 specifying a Removal Date
for Removed Accounts.
"Removed Account" shall have the meaning specified in Section
2.7(b).
"Required Participation Amount" shall mean, at any time of
determination, an amount equal to the sum of the amounts for each Series
obtained by multiplying the Required Participation Percentage for such Series by
the Initial Invested Amount for such Series at such time.
"Required Participation Percentage" shall mean, with respect to any
Series, the percentage specified therefor in the related Supplement. However,
the Dealer Overconcentration Series shall not have a Required Participation
Percentage.
"Requirements of Law" for any Person shall mean the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or Governmental Authority, in each case applicable to or binding upon
such Person or to which such Person is subject, whether Federal, state or local
(including usury laws and the Federal Truth in Lending Act).
"Responsible Officer" shall mean any officer of the Trustee with
direct responsibility for the administration of this Agreement and also, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with that
relevant subject.
"Revolving Period" shall mean with respect to any Series, the period
specified as such in the related Supplement. However, the Dealer
Overconcentration Series shall not have a period designated as a Revolving
Period.
"SAU" shall mean, with respect to a Receivable, that if such
Receivable was originally secured by a security interest in a Product, such
Product has been sold and such Receivable is not paid in full.
"Seller" shall mean Deutsche FRLP.
"Seller's Certificates" shall mean, collectively, the Deutsche FRLP
Certificate and any outstanding Supplemental Certificates.
"Seller's Interest" shall have the meaning specified in Section 4.1.
"Seller's Participation Amount" shall mean, at any time of
determination, an amount equal to (a) the Pool Balance at such time minus (b)
the aggregate Invested Amounts for all outstanding Series (other than the Dealer
Overconcentration Series, which shall not be considered to have an Invested
Amount) at such time.
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"Series" shall mean (a) any series of Investor Certificates and (b)
the Dealer Overconcentration Series.
"Series Account" shall mean any deposit, trust, escrow, reserve or
similar account maintained for the benefit of the Investor Certificateholders of
any Series or Class, as specified in any Supplement.
"Series Cut-Off Date" shall mean, with respect to any Series, the
date, if any, specified as such in the related Supplement.
"Series Issuance Date" shall mean, with respect to any Series, the
date on which the Investor Certificates of such Series are to be originally
issued in accordance with Section 6.3 and the related Supplement.
"Series 1994-1" shall mean the series of Investor Certificates
issued and designated as "Series 1994-1".
"Service Transfer" shall have the meaning specified in Section 10.1.
"Servicer" shall initially mean DFS, in its capacity as Servicer
under this Agreement, and after any Service Transfer, the Successor Servicer.
"Servicer Default" shall have the meaning specified in Section 10.1.
"Servicing Fee" shall have the meaning specified in Section 3.2.
"Servicing Officer" shall mean any officer of the Servicer involved
in, or responsible for, the administration and servicing of the Receivables
whose name appears on a list of servicing officers furnished to the Trustee by
the Servicer as such list may from time to time be amended.
"Specified Party" means any of the Seller, the Servicer, DFS, if it
is not the Servicer, Deutsche North America, so long as DFS is an Affiliate of
Deutsche North America, or, if Deutsche North America has merged or consolidated
with another Person, the surviving Person (but only so long as DFS is an
Affiliate of the surviving Person) or any other Person which is the direct,
controlling shareholder of DFS.
"Standard & Poor's" shall mean Standard & Poor's, a division of The
McGraw Hill-Companies, Inc., or its successor.
"Successor Servicer" shall have the meaning specified in Section
10.2(a).
"Supplement" shall mean, with respect to any Series, a supplement to
this Agreement, executed and delivered in connection with the original issuance
of the Investor Certificates of such Series, if applicable, pursuant to Section
6.3, and all amendments thereof and supplements thereto. No Investor
Certificates shall be issued pursuant to the Supplement for the Dealer
Overconcentration Series.
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"Supplemental Certificate" shall have the meaning specified in
Section 6.3.
"Tax Opinion" shall mean, with respect to any action, an Opinion of
Counsel to the effect that, for Federal income and Missouri state income and
franchise tax purposes, (a) such action shall not adversely affect the
characterization of the Investor Certificates of any outstanding Series or Class
as debt or as partnership interests, (b) such action shall not cause or
constitute a taxable event with respect to any Investor Certificateholders or
the Trust and (c) in the case of Section 6.3(b), each Class of the Investor
Certificates of the new Series shall be characterized as debt or as partnership
interests.
"Termination Date" shall mean, with respect to any Series, the
termination date, if any, specified in the related Supplement. However, the
Supplement for the Dealer Overconcentration Series shall not specify a
Termination Date.
"Termination Notice" shall have the meaning specified in Section
10.1.
"Termination Proceeds" shall have the meaning specified in Section
12.2(c).
"Transfer Agent and Registrar" shall have the meaning specified in
Section 6.4.
"Transfer Date" shall have the meaning specified in Section 2.1.
"Transfer Deposit Amount" shall mean, with respect to any Receivable
reassigned or assigned to the Seller or the Servicer, as applicable, pursuant to
Section 2.4(c) or Section 3.3, the amounts specified in such Sections.
"Trust" shall mean the Distribution Financial Services Floorplan
Master Trust created by this Agreement, formerly known as the Deutsche Floorplan
Receivables Master Trust, the corpus of which shall consist of the Trust Assets.
"Trust Assets" shall have the meaning specified in Section 2.1.
"Trust Invested Amount" shall mean, at any time of determination,
the sum of the Invested Amounts for all outstanding Series at such time.
"Trust Termination Date" shall have the meaning specified in Section
12.1.
"Trustee" shall mean The Chase Manhattan Bank, or its successor in
interest, or any successor trustee appointed as herein provided.
"UCC" shall mean the Uniform Commercial Code, as amended from time
to time, as in effect in any applicable jurisdiction.
"Unallocated Principal Collections" shall have the meaning specified
in Section 4.4.
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"Unconcentrated Percentage" shall mean, with respect to an
Overconcentrated Dealer, the result of (a) 100% minus (b) the Overconcentration
Percentage for such Overconcentrated Dealer.
"Unconcentrated Pool Balance" shall mean, as of the end of any
Collection Period, the lesser of: (1) the Pool Balance at the end of such
Collection Period, and (2)(a)(i) such Pool Balance minus (ii) the sum of the
Principal Receivables in all Accounts of all Overconcentrated Dealers at the end
of such Collection Period, divided by (b)(i) 100% minus (ii) the sum of (x) the
product of (A) the number of Overconcentrated Dealers as to which the applicable
Concentration Limit Percentage is 3% and (B) 3%, (y) the product of (A) the
number of Overconcentrated Dealers as to which the applicable Concentration
Limit Percentage is 2% and (B) 2%, and (z) the product of (A) the number of
Overconcentrated Dealers as to which the applicable Concentration Limit
Percentage is other than 3% or 2% and (B) in each case, such applicable
Concentration Limit Percentage.
"Vice President" when used with respect to the Seller and Servicer
shall mean any vice president (in the case of the Seller, a vice president of
Deutsche FRI) whether or not designated by a number or word or words added
before or after the title "vice president".
"Wholesale Financing Agreement" shall mean a wholesale financing
agreement entered into by DFS or the related Approved Affiliate and a Dealer in
order to finance Products purchased by such Dealer from a Manufacturer.
SECTION 1.2. Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Agreement or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Agreement or in any such certificate or other document shall control.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section, Schedule
and Exhibit references contained in this Agreement are references to Sections,
Schedules and Exhibits in or to this Agreement unless otherwise specified; and
the term "including" shall mean "including without limitation."
(d) The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
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(e) All references to any agreement shall be understood to be
references to such agreement as it may be amended, amended and restated or
otherwise modified from time to time.
SECTION 1.3. Provisions Relating to Rating Agencies. Provisions in
this Agreement relating to Standard & Poor's, Moody's, Fitch, Duff & Phelps or a
Rating Agency shall be effective only so long as there is a Series of Investor
Certificates outstanding that has been rated by such Rating Agency at the
request of the Seller. By way of illustration and not limitation of the
foregoing, if no Series of Investor Certificates then outstanding has been rated
at the request of the Seller by Fitch, a notice required hereunder to be given
to a Rating Agency need not be given to Fitch and an Eligible Institution need
not have its debt or certificates of deposit rated by Fitch.
ARTICLE II
Conveyance of Receivables
SECTION 2.1. Conveyance of Receivables. By execution of this
Agreement, the Seller does hereby sell, transfer, assign, set over and otherwise
convey, without recourse (except as expressly provided herein), to the Trust for
the benefit of the Certificateholders and the other Beneficiaries on the Closing
Date for the Series issued in 1993, in the case of the Initial Accounts, and on
the applicable Addition Date, in the case of Additional Accounts, (a) all of its
right, title and interest in, to and under the Receivables in each Account and
all Collateral Security with respect thereto owned by the Seller at the close of
business on the Cut-Off Date, in the case of the Initial Accounts, and on the
applicable Additional Cut-Off Date, in the case of Additional Accounts, and all
monies due or to become due and all amounts received with respect thereto and
all proceeds (including "proceeds" as defined in Section 9-306 of the UCC as in
effect in the State of Missouri and Recoveries) thereof, (b) all of the Seller's
rights, remedies, powers and privileges with respect to such Receivables, and
the Receivables conveyed to the Trust in the next sentence, under the related
Floorplan Agreements, if any, (c) all of the Seller's rights, remedies, powers
and privileges with respect to such Receivables under the Receivables
Contribution and Sale Agreement, and (d) without limiting the foregoing, all of
the Seller's right, title and interest in, to and under the Receivables
Contribution and Sale Agreement. As of each Business Day prior to the earlier of
(i) the occurrence of an Early Amortization Event specified in Section 9.1(b),
(c), (d) or (e) and (ii) the Trust Termination Date, on which Receivables are
created in the Accounts (a "Transfer Date"), the Seller does hereby sell,
transfer, assign, set over and otherwise convey, without recourse (except as
expressly provided herein), to the Trust for the benefit of the
Certificateholders and the other Beneficiaries, all of its right, title and
interest in, to and under the Receivables in each Account (other than any
Receivables created in any Designated Account from and after the applicable
Removal Date) and all Collateral Security with respect thereto owned by the
Seller at the close of business on such Transfer Date and not theretofore
conveyed to the Trust, all monies due or to become due and all amounts received
with respect thereto and all proceeds (including "proceeds" as defined in
Section 9-306 of the UCC as in effect in the State of Missouri and Recoveries)
thereof. Such property, together with all monies on deposit in, and Eligible
Investments credited to, the Collection Account or any Series Account, any
Enhancements and the Collateral Security with respect to the Receivables shall
collectively constitute the assets of the Trust (the "Trust Assets"). The
foregoing sale,
25
transfer, assignment, set-over and conveyance and any subsequent sales,
transfers, assignments, set-overs and conveyances do not constitute, and are not
intended to result in, the creation or an assumption by the Trust, the Trustee,
any Agent or any Beneficiary of any obligation of the Servicer, DFS, the Seller,
or any other Person in connection with the Accounts, the Receivables or any
Participation Interest or under any agreement or instrument relating thereto
(including any Participation Agreement), including any obligation to any
Dealers, Manufacturers, or owners of a Participation Interest and DFS (and not
any of the other foregoing Persons) shall continue to perform and be responsible
for their respective obligations under the Financing Agreements, Floorplan
Agreements, Participation Agreements and any related agreements and
arrangements. The foregoing transfer, assignment, setover and conveyance to the
Trust, and any subsequent transfer, assignment, setover and conveyance to the
Trust, shall be made to the Trustee, on behalf of the Trust, and each reference
in this Agreement or any Supplement to any such transfer, assignment, setover
and conveyance shall be construed accordingly.
In connection with such sales, the Seller agrees to record and file,
at its own expense, a financing statement on form UCC-1 (and continuation
statements when applicable) with respect to the Receivables now existing and
hereafter created for the sale of chattel paper, accounts and general
intangibles (as defined in Section 9-105 of the UCC as in effect in any state
where the Seller's or DFS's chief executive offices or books and records
relating to the Receivables are located) meeting the requirements of applicable
state law in such manner and in such jurisdictions as are necessary to perfect
the sale and assignment of the Receivables and the other Trust Assets to the
Trust, and to deliver a file-stamped copy of such financing statements or other
evidence of such filing to the Trustee on or prior to the Closing Date for the
Series issued in 1993, in the case of the Initial Accounts, and (if any
additional filing is so necessary) the applicable Addition Date, in the case of
Additional Accounts. The Trustee shall be under no obligation whatsoever to file
such financing statement, or a continuation statement to such financing
statement, or to make any other filing under the UCC in connection with such
sales.
In connection with such sales, the Seller further agrees, at its own
expense, on or prior to the Closing Date for the Series issued in 1993, in the
case of the Initial Accounts, the applicable Addition Date, in the case of
Additional Accounts, and the applicable Removal Commencement Date, in the case
of Removed Accounts, (a) to cause DFS to indicate in its books and records,
which may include computer files, as required by the Receivables Contribution
and Sale Agreement, that the Receivables created in connection with the Accounts
(other than Removed Accounts) have been sold, and the Collateral Security
assigned, to the Seller in accordance with the Receivables Contribution and Sale
Agreement and sold to the Trust pursuant to this Agreement for the benefit of
the Certificateholders and the other Beneficiaries and (b) to deliver to the
Trustee (or cause DFS to do so) a computer file or microfiche or written list
containing a true and complete list of all such Accounts (other than Removed
Accounts) specifying for each such Account, as of the Cut-Off Date, in the case
of the Initial Accounts, and the applicable Additional Cut-Off Date, in the case
of Additional Accounts, (i) its account number and (ii) the aggregate amount of
Principal Receivables in such Account. Such file or list, as supplemented from
time to time to reflect Additional Accounts and Removed Accounts, shall be
marked as Schedule 1 to this Agreement and is hereby incorporated into and made
a part of this Agreement. The Trustee shall be under no obligation whatsoever to
verify the accuracy or completeness of the information contained in Schedule 1
from time to time.
26
In the event that such sale and assignment is deemed to constitute a
pledge of security for a loan, it is the intent of this Agreement that the
Seller shall be deemed to have granted to the Trustee a first priority perfected
security interest in all of the Seller's right, title and interest to and under
the Receivables and the Collateral Security and all proceeds thereof, the
Floorplan Agreements and the Receivables Contribution and Sale Agreement, and
that this Agreement shall constitute a security agreement under applicable law.
Notwithstanding any other provision of this Agreement, no asset
shall be acquired by the Seller or the Trust or disposed of by the Seller or the
Trust for the primary purpose of recognizing gains or decreasing losses due to
market value changes.
SECTION 2.2. Acceptance by Trustee. (a) The Trustee hereby
acknowledges its acceptance, on behalf of the Trust, of all right, title and
interest previously held by the Seller to the property, now existing and
hereafter created, conveyed to the Trust pursuant to Section 2.1 and declares
that, subject to the terms and conditions hereof and of any Supplement, it shall
maintain such right, title and interest, upon the trust herein set forth, for
the benefit of the Certificateholders and the other Beneficiaries. The Trustee
further acknowledges that, prior to or simultaneously with the execution and
delivery of this Agreement, the Seller delivered to the Trustee the computer
file or microfiche or written list which the Seller represented as being the
computer file or list relating to the Initial Accounts described in the last
paragraph of Section 2.1.
(a) The Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated in this Agreement.
SECTION 2.3. Representations and Warranties of the Seller Relating
to the Seller and the Agreement. The Seller hereby represents and warrants to
the Trust and to the Trustee as of each Closing Date that:
(a) Organization and Good Standing. The Seller is a limited
partnership duly organized and validly existing and in good standing under the
law of the State of Delaware and has, in all material respects, full power,
authority and legal right to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted, and to
execute, deliver and perform its obligations under this Agreement and to execute
and deliver to the Trustee pursuant hereto the Certificates.
(b) Due Qualification. The Seller is duly qualified to do business
and, where necessary, is in good standing as a foreign partnership (or is exempt
from such requirement) and has obtained all necessary licenses and approvals in
each jurisdiction in which the conduct of its business requires such
qualification except where the failure to so qualify or obtain licenses or
approvals would not have a material adverse effect on its ability to perform its
obligations hereunder.
(c) Due Authorization. The execution and delivery of this
Agreement and the applicable Supplement and the Related Documents and the
execution and delivery to the Trustee of the Certificates by the Seller and the
consummation of the transactions provided for or contemplated by this Agreement
and the applicable Supplement and the Related Documents,
27
have been duly authorized by the Seller by all necessary partnership action on
the part of the Seller.
(d) No Conflict. The execution and delivery of this Agreement, the
applicable Supplement, the Related Documents and the Certificates, the
performance of the transactions contemplated by this Agreement and the
applicable Supplement and the Related Documents and the fulfillment of the terms
hereof and thereof, shall not conflict with, result in any breach of any of the
material terms and provisions of, or constitute (with or without notice or lapse
of time or both) a material default under, any indenture, contract, agreement,
mortgage, deed of trust, or other instrument to which the Seller is a party or
by which it or its properties are bound.
(e) No Violation. The execution and delivery of this Agreement,
the applicable Supplement, the Related Documents and the Certificates, the
performance of the transactions contemplated by this Agreement and the
applicable Supplement and the Related Documents and the fulfillment of the terms
hereof and thereof applicable to the Seller, shall not conflict with or violate
any material Requirements of Law applicable to the Seller.
(f) No Proceedings. There are no proceedings or, to the best
knowledge of the Seller, investigations pending or threatened against the Seller
before any Governmental Authority (i) asserting the invalidity of this
Agreement, the applicable Supplement, any of the Related Documents or the
Certificates, (ii) seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this Agreement and the
applicable Supplement or the Related Documents, (iii) seeking any determination
or ruling that, in the reasonable judgment of the Seller, would materially and
adversely affect the performance by the Seller of its obligations under this
Agreement and the applicable Supplement or the Related Documents, (iv) seeking
any determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement and the applicable Supplement, the
Related Documents or the Certificates or (v) seeking to affect adversely the
income tax attributes of the Trust under the United States Federal or any State
income, single business or franchise tax systems.
(g) All Consents Required. All appraisals, authorizations,
consents, orders, approvals or other actions of any Person or of any
governmental body or official required in connection with the execution and
delivery of this Agreement, the applicable Supplement, the Related Documents and
the Certificates, the performance of the transactions contemplated by this
Agreement, the applicable Supplement and any of the Related Documents, and the
fulfillment of the terms hereof and thereof, have been obtained, except where
the failure to so obtain such item shall not have a material adverse effect on
its ability to render such performance.
(h) Enforceability. This Agreement and the applicable Supplement
and the Related Documents each constitutes a legal, valid and binding obligation
of the Seller enforceable against the Seller in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors' rights in general and except as
such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
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(i) Record of Accounts. As of the Closing Date for the Series
issued in 1993, in the case of the Initial Accounts, as of the applicable
Addition Date, in the case of the Additional Accounts, and, as of the applicable
Removal Date, in the case of Removed Accounts, Schedule 1 to this Agreement is
an accurate and complete listing in all material respects of all the Accounts as
of the Cut-Off Date, the applicable Additional Cut-Off Date or the applicable
Removal Date, as the case may be, and the information contained therein with
respect to the identity of such Accounts and the Receivables existing thereunder
is true and correct in all material respects as of the Cut-Off Date, such
applicable Additional Cut-Off Date or such Removal Date, as the case may be.
(j) Valid Transfer. This Agreement or, in the case of Additional
Accounts, the related Assignment constitutes a valid sale, transfer and
assignment to the Trust of all right, title and interest of the Seller in the
Receivables and the Collateral Security and the proceeds thereof and all of the
Seller's rights, remedies, powers and privileges with respect to the Receivables
under the Receivables Contribution and Sale Agreement and the related Financing
Agreements and Floorplan Agreements, if any, and, upon the filing of the
financing statements described in Section 2.1 with the applicable filing office
and, in the case of the Receivables hereafter created and the proceeds thereof,
upon the creation thereof, the Trust shall have a perfected ownership interest
in such property, free of the Liens of any other Person, except for Liens
permitted under Section 2.6(a). Except as otherwise provided in this Agreement,
neither the Seller nor any Person claiming through or under the Seller has any
claim to or interest in the Trust Assets.
The representations and warranties set forth in this Section 2.3
shall survive the transfer and assignment of the Receivables to the Trust and
the issuance of the Certificates. Upon discovery by the Seller, the Servicer,
any Agent or any Responsible Officer of the Trustee of a breach of any of the
foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other parties, any Agent and to any
Enhancement Providers.
In the event of any breach of any of the representations and
warranties set forth in this Section 2.3 having a material adverse effect on the
interests of the Investor Certificateholders, then either the Trustee or the
Holders of Investor Certificates evidencing not less than a majority in
aggregate unpaid principal amount of all outstanding Investor Certificates, by
notice then given in writing to the Seller (and to the Trustee, any Enhancement
Providers and the Servicer if given by the Investor Certificateholders), may
direct the Seller to purchase the Certificateholders' Interest within 60 days of
such notice (or within such longer period as may be specified in such notice),
and the Seller shall be obligated to make such purchase on a Distribution Date
occurring within such 60-day period on the terms and conditions set forth below;
provided, however, that no such purchase shall be required to be made if, by the
end of such 60-day period (or such longer period as may be specified), the
representations and warranties set forth in this Section 2.3 shall be true and
correct in all material respects, and any material adverse effect on the
Certificateholders' Interest caused thereby shall have been cured.
The Seller shall deposit in the Collection Account in immediately
available funds on the Business Day preceding such Distribution Date, in payment
for such purchase, an amount equal to the sum of the amounts specified therefor
with respect to each outstanding Series in the
29
related Supplement. Notwithstanding anything to the contrary in this Agreement,
such amounts shall be distributed to the Investor Certificateholders on such
Distribution Date in accordance with Article IV and the terms of each
Supplement. If the Trustee or the Investor Certificateholders give notice
directing the Seller to purchase the Certificateholders' Interest as provided
above, the obligation of the Seller to purchase the Certificateholders' Interest
pursuant to this Section 2.3 shall constitute the sole remedy respecting an
event of the type specified in the first sentence of this Section 2.3 available
to the Investor Certificateholders (or the Trustee on behalf of the Investor
Certificateholders).
SECTION 2.4. Representations and Warranties of the Seller Relating
to the Receivables. (a) Representations and Warranties. The Seller hereby
represents and warrants to the Trustee and the Trust that:
(i) Each Receivable and all other Trust Assets existing on
the Closing Date for the Series issued in 1993 or, in the case of
Additional Accounts, on the applicable Addition Date, and on each Transfer
Date, has been conveyed to the Trust free and clear of any Lien.
(ii) With respect to each Receivable and all other Trust
Assets existing on the Closing Date for the Series issued in 1993 or, in
the case of Additional Accounts, on the applicable Addition Date, and on
each Transfer Date, all consents, licenses, approvals or authorizations of
or registrations or declarations with any Governmental Authority required
to be obtained, effected or given by the Seller in connection with the
conveyance of such Receivable or other Trust Assets to the Trust have been
duly obtained, effected or given and are in full force and effect.
(iii) On the Cut-Off Date, each Initial Account was an
Eligible Account. On the applicable Additional Cut-Off Date, each
applicable Additional Account is an Eligible Account. On the date any
Receivables are transferred to the Trust, the related Account or
Additional Account was or is an Eligible Account or if it was or is an
Ineligible Account on such date, such Account is being removed from the
Trust in accordance with Section 2.8.
(iv) On the Closing Date for the Series issued in 1993, in
the case of the Initial Accounts, and, in the case of the Additional
Accounts, on the applicable Additional Cut-Off Date, and on each Transfer
Date, each Receivable conveyed to the Trust on such date is an Eligible
Receivable or, if such Receivable is not an Eligible Receivable, the
Account relating to such Receivable is an Eligible Account in accordance
with Section 2.9.
(b) Notice of Breach. The representations and warranties set forth
in this Section 2.4 shall survive the transfer and assignment of the Receivables
to the Trust and the issuance of the Certificates. Upon discovery by the Seller,
the Servicer, any Agent or a Responsible Officer of the Trustee of a breach of
any of the representations and warranties set forth in this Section 2.4, the
party discovering such breach shall give prompt written notice to the other
parties and to any Enhancement Providers.
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(c) Reassignment. In the event any representation or warranty
under Section 2.4(a) is not true and correct as of the date specified therein
with respect to any Receivable or Account and such breach has a material adverse
effect on the Certificateholders' Interest in any such Receivable or Account,
then, within 30 days (or such longer period as may be agreed to by the Trustee)
of the earlier to occur of the discovery of any such event by the Seller or the
Servicer, or receipt by the Seller or the Servicer of written notice of any such
event given by the Trustee, any Agent or any Enhancement Provider, the Seller
shall accept a reassignment of such Receivable or, in the case of such an untrue
representation or warranty with respect to an Account, all Receivables in such
Account, on the Determination Date immediately succeeding the day of such
discovery or notice on the terms and conditions set forth in the next succeeding
paragraph; provided, however, that no such reassignment shall be required to be
made with respect to such Receivable if, by the end of such 30-day period (or
such longer period as may be agreed to by the Trustee), the breached
representation or warranty shall then be true and correct in all material
respects and any material adverse effect caused thereby shall have been cured.
The Seller shall accept a reassignment of each such Receivable by
directing the Servicer to deduct, subject to the next sentence, the principal
amount of such Receivables (exclusive of their Discount Portions) from the Pool
Balance on or prior to the end of the Collection Period in which such
reassignment obligation arises. If, following such deduction, the Pool Balance
would be less than the Required Participation Amount on the immediately
preceding Determination Date (after giving effect to the allocations,
distributions, withdrawals and deposits to be made on the Distribution Date
following such Determination Date), then not later than 12:00 noon New York City
time on the day on which such reassignment occurs, the Seller shall deposit in
the Collection Account in immediately available funds the amount (the "Transfer
Deposit Amount") by which the Pool Balance would be less than the Required
Participation Amount (up to the principal amount of such Receivables exclusive
of the Discount Portions thereof); provided that if the Transfer Deposit Amount
is not deposited as required by this sentence, then the amounts to be deducted
in respect of such Receivables shall only be deducted from the Pool Balance to
the extent that the Pool Balance is not reduced below the Required Participation
Amount and the Receivables, the amounts to be deducted in respect of which have
not been so deducted, shall not be reassigned to the Seller and shall remain
part of the Trust. Upon reassignment of any such Receivable, but only after
payment by the Seller of the Transfer Deposit Amount, if any, the Trust shall
automatically and without further action be deemed to sell, transfer, assign,
set over and otherwise convey to the Seller, without recourse, representation or
warranty, all the right, title and interest of the Trust in and to such
Receivable, all Collateral Security and all moneys due or to become due with
respect thereto and all proceeds thereof. The Trustee shall execute such
documents and instruments of transfer or assignment as shall be furnished by the
Seller and shall take such other actions as shall reasonably be requested by the
Seller, to effect the conveyance of such Receivables pursuant to this Section.
The obligation of the Seller to accept a reassignment of any such Receivable and
to pay any related Transfer Deposit Amount shall constitute the sole remedy
respecting the event giving rise to such obligation available to
Certificateholders (or the Trustee on behalf of Certificateholders).
SECTION 2.5. Addition of Accounts. (a) If, on any Distribution Date,
(i) the Pool Balance (for purposes of this paragraph, determined by excluding
from the calculation thereof all Delayed Funding Receivables) as of the close of
business on the last day of the
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preceding Collection Period is less than the Required Participation Amount as of
such Distribution Date (after giving effect to the allocations, distributions,
withdrawals and deposits to be made on such Distribution Date), or (ii) the
result obtained by multiplying (x) the Seller's Participation Amount (for
purposes of this paragraph, determined by using the Pool Balance as determined
in accordance with this paragraph) as of such Distribution Date (after giving
effect to the allocations, distributions, withdrawals and deposits to be made on
such Distribution Date), by (y) the percentage equivalent of the portion of the
Seller's Interest represented by the Deutsche FRLP Certificate, is less than 5%
of the Pool Balance on such last day, then the Seller shall, within 10 Business
Days following such Distribution Date, designate additional Eligible Accounts to
be included as Accounts and transfer to the Trust the Receivables (and the
related Collateral Security) of those Additional Accounts in a sufficient amount
such that after giving effect to such designation and transfer: (i) the Pool
Balance (determined in accordance with this paragraph) as of the close of
business on the Addition Date is at least equal to such Required Participation
Amount; and (ii) the result obtained by multiplying (x) such Seller's
Participation Amount (determined in accordance with this paragraph) by (y) the
percentage equivalent of the portion of the Seller's Interest represented by the
Deutsche FRLP Certificate, is at least equal to 5% of such Pool Balance, as the
case may be. The Seller shall satisfy the conditions specified in Section 2.5(d)
in designating such Additional Accounts and conveying the related Receivables to
the Trust. The failure of the Seller to transfer Receivables to the Trust as
provided in this paragraph solely as a result of the unavailability of a
sufficient amount of Eligible Receivables shall not constitute a breach of this
Agreement; provided, however, that any such failure shall nevertheless result in
the occurrence of an Early Amortization Event described in Section 9.1(a).
(b) The Seller may from time to time, at its sole discretion,
subject to the conditions specified in paragraph (d) below, voluntarily
designate additional Eligible Accounts to be included as Accounts and transfer
to the Trust the Receivables (and the related Collateral Security) of such
Additional Accounts.
(c) Receivables and Collateral Security from such Additional
Accounts shall be sold to the Trust effective on a date (each an "Addition
Date") specified in a written notice provided by the Seller (or the Servicer on
its behalf) to the Trustee, the Rating Agencies, any Agent and any Enhancement
Providers specifying the Additional Cut-Off Date and the Addition Date for such
Additional Accounts (each an "Addition Notice") on or before the fifth Business
Day but not more than the 30th day prior to the related Addition Date or, if the
Automatic Addition Condition is satisfied, on the Determination Date following
the Collection Period in which such Addition Dates occur (the "Notice Date"). An
Addition Notice may relate to one or more Accounts added on one or more Addition
Dates.
(d) The Seller shall be permitted to convey to the Trust the
Receivables and all Collateral Security related thereto in any Additional
Accounts designated by the Seller as such pursuant to Section 2.5(a) or (b) only
upon satisfaction of each of the following conditions on or prior to the related
Addition Date (except for the condition in clause (vii), if applicable, which
shall be satisfied on or before the tenth Business Day after the applicable
Notice Date):
(i) the Seller shall have provided the Trustee, any Agent,
the Rating Agencies and any Enhancement Providers with a timely Addition
Notice;
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(ii) such Additional Accounts shall all be Eligible Accounts;
(iii) the Seller shall have delivered to the Trustee a duly
executed written assignment (including an acceptance by the Trustee) in
substantially the form of Exhibit B (the "Assignment") covering the
Receivables in the Accounts specified in the Addition Notice and the
computer file or microfiche or written list required to be delivered
pursuant to Section 2.1;
(iv) the Seller shall, to the extent required by Section 4.3,
have deposited in the Collection Account all Collections with respect to
such Additional Accounts since the Additional Cut-Off Date;
(v) (A) no selection procedures reasonably believed by the
Seller to be adverse to the interests of the Beneficiaries shall have been
used in selecting such Additional Accounts; (B) the list of Additional
Accounts delivered pursuant to clause (iii) above shall be true and
correct in all material respects as of the Additional Cut-Off Date and (C)
as of each of the Notice Date and the Addition Date, neither DFS nor the
Seller shall have been insolvent nor shall any of them have been made
insolvent by such transfer nor shall any of them be aware of any pending
insolvency;
(vi) if the Automatic Addition Condition is not satisfied
with respect to such addition, the Rating Agency Condition shall have been
satisfied with respect to such addition, provided that the Rating Agency
Condition must be satisfied for any Additional Account designated pursuant
to Section 2.5(b) if such Additional Account contains Asset Based
Receivables (or, if such Additional Account contains A/R Receivables if a
Participation Interest has been created in such A/R Receivables);
(vii) If (A) one or more of the Additional Accounts specified
in such Addition Notice shall contain Receivables secured by a security
interest in a type of Product that has not been previously financed in the
Floorplan Business or (B) one or more of the Additional Accounts is
supported by a Floorplan Agreement with a Manufacturer that, as of the
related Addition Date, is not an Existing Manufacturer, then, whether or
not the Automatic Condition is satisfied, the Rating Agency Condition
shall have been satisfied in respect of the addition of each Additional
Account specified in clauses (A) and (B) on or prior to the related
Addition Date;
(viii) the addition of the Receivables arising in such
Additional Accounts shall not result in the occurrence of an Early
Amortization Event;
(ix) the Seller shall have delivered to the Trustee and any
Enhancement Providers a certificate of a Vice President or more senior
officer confirming (A) the items set forth in paragraphs (ii) through
(vii) above and (B) that the Seller reasonably believes that the addition
of the Receivables arising in such Additional Accounts shall not result in
the occurrence of an Early Amortization Event; and
(x) the Seller shall have delivered to the Trustee and any
Enhancement Providers (A) an Opinion of Counsel with respect to the
Receivables in the Additional Accounts added since the last delivery of
such Opinion substantially in the form of
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Exhibit G-2 and (B) except in the case of an addition required by Section
2.5(a), a Tax Opinion with respect to such addition; provided that if such
Opinion of Counsel and Tax Opinion are required to be delivered, they
shall be from outside counsel no less frequently than quarterly; provided
further that, unless the Rating Agency Condition is satisfied, such
Opinion of Counsel and Tax Opinion shall be from outside counsel if the
rating of the unsecured long-term debt of the parent of DFS or, if DFS
does not have a parent, DFS is below investment grade.
(e) The Seller hereby represents and warrants as of the applicable
Addition Date as to the matters set forth in Section 2.5(d)(v). Upon discovery
by the Seller, the Servicer, any Agent, a Responsible Officer of the Trustee or
any Enhancement Providers of a breach of the foregoing representations and
warranties, the party discovering the breach shall give prompt written notice to
the other parties, to any Agent and to any Enhancement Providers.
(f) Notwithstanding anything in this Section 2.5 to the contrary,
the additions of Additional Accounts pursuant to Section 2.5(b) on or prior to
the Closing Date for Series 1994-1 need not satisfy clause (i), (vi), (vii) or
(x) of Section 2.5(d).
SECTION 2.6. Covenants of the Seller. The Seller hereby covenants
that:
(a) No Liens. Except for the conveyances hereunder or as provided
in Section 6.3(c), the Seller shall not sell, pledge, assign or transfer to any
other Person, or grant, create, incur, assume or suffer to exist any Lien on,
any Receivable or any other Trust Asset, whether now existing or hereafter
created, or any interest therein, Seller's Interest or the Seller's Certificates
and the Seller shall defend the right, title and interest of the Trust in, to
and under the Receivables and the other Trust Assets, whether now existing or
hereafter created, and such rights, remedies, powers and privileges, against all
claims of third parties claiming through or under the Seller.
(b) Account Allocations. In the event that the Seller is unable
for any reason to transfer Receivables to the Trust, then the Seller agrees that
it shall allocate, after the occurrence of such event, payments on each Account
with respect to the principal balance of such Account first to the oldest
principal balance of such Account and to have such payments applied as
Collections in accordance with the terms of this Agreement. The parties hereto
agree that Non-Principal Receivables, whenever created, accrued in respect of
Principal Receivables which have been conveyed to the Trust shall continue to be
a part of the Trust notwithstanding any cessation of the transfer of additional
Principal Receivables to the Trust and Collections with respect thereto shall
continue to be allocated and paid in accordance with the terms of this
Agreement.
(c) Delivery of Collections. In the event that the Seller, DFS or
any Affiliate thereof receives payments in respect of Receivables, the Seller
and DFS agree to pay or cause to be paid to the Servicer or any Successor
Servicer all payments received thereby in respect of the Receivables as soon as
practicable after receipt thereof, but in no event later than two Business Days
after the receipt by the Seller, DFS or any Affiliate thereof.
34
(d) Notice of Liens. The Seller shall notify the Trustee promptly
after becoming aware of any Lien on any Receivable other than the conveyances
hereunder and Participation Interests.
(e) Compliance with Law. The Seller hereby agrees to comply in all
material respects with all Requirements of Law applicable to the Seller.
(f) Activities of the Seller. The Seller shall not engage in any
business or activity of any kind or enter into any transaction other than (i)
the businesses, activities and transactions contemplated and authorized by this
Agreement or the Related Documents, (ii) acquiring, selling, financing, holding,
assigning, pledging and otherwise dealing with receivables arising out of the
financing of commercial and consumer products, accounts receivable and other
assets and related activities and transactions or out of unsecured loans, (iii)
transferring such receivables to trusts pursuant to a pooling and servicing
agreement or similar agreement or arrangement, (iv) authorizing, selling and
delivering any class of certificates or other securities of any such trust, (v)
issuing, selling, authorizing and delivering one or more series and classes of
bonds, notes or other evidences of indebtedness secured or collateralized by one
or more pools of receivables or by certificates of any class issued by one or
more trusts (collectively, the "Notes"), provided that the Seller shall have no
liability under any Notes except to the extent of the one or more pools of
receivables or the certificates securing or collateralizing such Notes, (vi)
holding and enjoying all of the rights and privileges of any certificates issued
by the trusts to the Seller under the related agreements and holding and
enjoying all of the rights and privileges of any class of any series of Notes,
including any class of Notes or certificates which may be subordinate to any
other class of Notes or certificates, respectively, (vii) performing its
obligations under the agreements and any indenture or other agreement (each, an
"Indenture") pursuant to which any Notes are issued, (viii) engaging in any
activity and exercising any powers permitted to limited partnerships under the
laws of the State of Delaware that are related or incidental to the foregoing
and necessary, convenient or advisable to accomplish the foregoing, and (ix) any
other activity in connection with which the Rating Agency Condition has been
satisfied (such businesses, activities and transactions, collectively,
"Permitted Transactions").
(g) Indebtedness. The Seller shall not create, incur or assume any
indebtedness or issue any securities or sell or transfer any receivables to a
trust or other Person which issues securities in respect of any such
receivables, unless (i) any such indebtedness or securities have no recourse to
any assets of the Seller other than the specified assets to which such
indebtedness or securities relate and (ii) the Rating Agency Condition shall
have been satisfied in connection therewith prior to the incurrence or issuance
thereof.
(h) Guarantees. The Seller shall not become or remain liable,
directly or contingently, in connection with any indebtedness or other liability
of any other Person, whether by guarantee, endorsement (other than endorsements
of negotiable instruments for deposit or collection in the ordinary course of
business), agreement to purchase or purchase, agreement to supply or advance
funds, or otherwise, except in connection with Permitted Transactions and unless
the Rating Agency Condition shall have been satisfied with respect thereto.
(i) Investments. The Seller shall not make or suffer to exist any
loans or advances to, or extend any credit to, or make any investments (by way
of transfer of property,
35
contributions to capital, purchase of stock or securities or evidences of
indebtedness, acquisition of the business or assets, or otherwise) in, any
Affiliate, unless prior thereto the Rating Agency Condition shall have been
satisfied with respect thereto; provided, however, that the Seller shall not be
prohibited under this Section 2.6(i) from making distributions to its partners.
(j) Stock; Merger. The Seller shall not (i) sell any general
partner's interests in the Seller to any Person (other than Deutsche FRI), or
enter into any transaction of merger or consolidation unless (A) the surviving
Person of such merger or consolidation assumes all of the Seller's obligations
under this Agreement, (B) the Seller shall have given the Rating Agencies and
the Trustee at least 10 days' prior notice and the Rating Agency Condition shall
have been satisfied with respect to such transaction and (C) such merger or
consolidation does not conflict with any provisions of the partnership agreement
of the Seller, or (ii) terminate, liquidate or dissolve itself (or suffer any
termination, liquidation or dissolution), or (iii) acquire or be acquired by any
Person, or (iv) otherwise make (or suffer) any material change in the
organization of or method of conducting its business.
(k) Agreements. The Seller shall not become a party to, or permit
any of its properties to be bound by, any indenture, mortgage, instrument,
contract, agreement, lease or other undertaking, except this Agreement, the
Related Documents and any document relating to a Permitted Transaction, or amend
or modify its partnership agreement or cancel, terminate, amend, supplement,
modify or waive any of the provisions of the Receivables Contribution and Sale
Agreement or any of the other Related Documents or request, consent or agree to
or suffer to exist or permit any such cancellation, termination, amendment,
supplement, modification or waiver unless, in any such case, the Rating Agency
Condition shall have been satisfied with respect thereto.
(l) Separate Existence. The Seller shall take all reasonable steps
to make it apparent to third Persons that the Seller is an entity with assets
and liabilities distinct from those of DFS and any other Affiliate and that the
Seller is not a division of DFS or any other Person.
SECTION 2.7. Removal of Eligible Accounts. (a) On each Determination
Date the Seller shall have the right to remove Eligible Accounts in the manner
prescribed in Section 2.7(b). The termination of an Account by a Dealer upon
such Dealer's payment in full of the Receivables in the related Account shall
not be a removal of such Account for purposes of this Section 2.7.
(b) To remove Eligible Accounts, the Seller (or the Servicer on
its behalf) shall take the following actions and make the following
determinations:
(i) not less than five Business Days prior to the Removal
Date, furnish to the Trustee, any Agent, any Enhancement Providers and the
Rating Agencies a Removal Notice specifying the Removal Date, which shall
be a Determination Date (which may be a Determination Date on which such
Removal Notice is given) on which removal of one or more Accounts (the
"Removed Accounts") shall occur;
(ii) from and after such Removal Date, cease to transfer to
the Trust any and all Receivables arising in such Removed Accounts;
36
(iii) represent and warrant that the removal of any such
Eligible Account on any Removal Date shall not, in the reasonable belief
of the Seller, cause an Early Amortization Event to occur or cause the
Pool Balance to be less than the Required Participation Amount;
(iv) represent and warrant that no selection procedures
reasonably believed by the Seller to be adverse to the interests of the
Beneficiaries were utilized in selecting the Accounts to be removed;
(v) cause the Rating Agency Condition to be satisfied with
respect to such removal;
(vi) deliver to the Trustee, each Rating Agency, any Agent
and any Enhancement Providers a Tax Opinion, dated the Removal Date, with
respect to such removal;
(vii) on or before the related Removal Date, deliver to the
Trustee, any Agent and any Enhancement Providers an Officers' Certificate
confirming the items set forth in clauses (iii) through (v) above and
confirming that the Seller reasonably believes that the removal of the
Removed Accounts shall not result in the occurrence of an Early
Amortization Event; the Trustee may conclusively rely on such Officers'
Certificate and shall have no duty to make inquiries with regard to the
matters set forth therein and shall incur no liability in so relying; and
(viii) on or before the fifth Business Day after the Removal
Date, furnish to the Trustee a computer file, microfiche list or other
list of the Removed Accounts that were removed on the Removal Date,
specifying for each Removed Account as of the date of the Removal Notice
its number, the aggregate amount outstanding in such Removed Account and
the aggregate amount of Principal Receivables therein and represent that
such computer file, microfiche list or other list of the Removed Accounts
is true and complete in all material respects and such Removed Accounts
shall be deemed to have been removed from the list of Accounts maintained
by the Trustee.
No Accounts shall be so removed if such removal shall result in a reduction or
withdrawal of the rating of any outstanding Series or Class by the applicable
Rating Agency.
(b) Subject to Section 2.7(b), on the Removal Date with respect to
any such Removed Account, such Removed Account shall be deemed removed from the
Trust for all purposes. After the Removal Date and upon the written request of
the Servicer, the Trustee shall deliver to the Seller a reassignment in
substantially the form of Exhibit H (the "Reassignment").
SECTION 2.8. Removal of Ineligible Accounts. (a) The date on which
the Seller or the Servicer becomes aware that an Account is an Ineligible
Account shall be the "Removal Commencement Date" with respect to such Account.
(b) With respect to each Account that becomes an Ineligible
Account, the Seller (or the Servicer on its behalf) shall take the following
actions and make the following determinations:
37
(i) promptly following the related Removal Commencement
Date, furnish to the Trustee, any Agent and any Enhancement Providers a
Removal Notice specifying the Removal Commencement Date and the Ineligible
Accounts to be removed and the related Removal Date, which shall be a date
occurring on or before the next Determination Date (the "Designated
Accounts");
(ii) determine on the Removal Commencement Date with respect
to such Designated Accounts the aggregate balance of Principal Receivables
in respect of each Designated Account (the "Designated Balance") and amend
Schedule 1 by delivering to the Trustee a computer file or microfiche or
written list containing a true and complete list of the Designated
Accounts specifying for each such Designated Account, as of the Removal
Commencement Date, its account number, the aggregate amount of Receivables
outstanding in such Designated Account and the Designated Balance;
(iii) from and after such Removal Commencement Date, cease to
transfer to the Trust any and all Receivables arising in such Designated
Accounts;
(iv) if such Account was an Ineligible Account at the time it
was originally designated as an Account, from and after such Removal
Commencement Date, allocate Collections of Principal Receivables in
respect of each Designated Account, first to the oldest outstanding
principal balance of such Designated Account, until the Removal
Commencement Date with respect thereto; and
(v) if such Account was an Ineligible Account at the time it
was originally designated as an Account, on each Business Day from and
after such Removal Commencement Date to and until the related Removal
Date, allocate (A) to the Trust (to be further allocated pursuant to the
terms of this Agreement), Defaulted Receivables and Collections of
Non-Principal Receivables in respect of each Designated Account, based on
the ratio of the aggregate amount of Principal Receivables in all
Designated Accounts owned by the Trust on such Business Day to the total
aggregate amount of Principal Receivables in all such Designated Accounts
on such Business Day and (B) to the Seller, the remainder of the Defaulted
Receivables and Collections of Non-Principal Receivables in all such
Designated Accounts on such Business Day.
(c) On the Removal Commencement Date with respect to any such
Ineligible Account, the Seller shall cease to allocate any Collections therefrom
in accordance herewith and such Account shall be deemed a Removed Account and
shall be deemed removed from the Trust for all purposes. After the Removal
Commencement Date and upon the written request of the Servicer, the Trustee
shall deliver to the Seller a Reassignment.
(d) Notwithstanding any other provision of this Agreement, unless
an Account was an Ineligible Account at the time it was originally designated as
an Account, the Reassignment shall remove only such Account and shall not
reassign any Receivable existing in such Account.
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SECTION 2.9. Sale of Ineligible Receivables. The Seller shall sell
to the Trust on each Transfer Date any and all Receivables arising in any
Eligible Accounts that are Ineligible Receivables, provided that on the Cut-Off
Date or, in the case of Receivables arising in Additional Accounts, on the
related Additional Cut-Off Date, and on the applicable Transfer Date, the
Account in which such Receivables arise is an Eligible Account.
SECTION 2.10. Removal of Receivables in Connection with
Overconcentration Amount. (a) If on any Determination Date the Overconcentration
Amount as of the end of the preceding Collection Period exceeds zero, the Seller
may attempt to reduce the Overconcentration Amount to zero by removing
Receivables from the Trust. However, in attempting to reduce the
Overconcentration Amount to zero, the Seller shall not be permitted to remove a
Receivable (a) that has been classified by the Servicer as SAU or NSF for more
than sixty days, (b) that has been charged off, (c) as to which the related
Dealer is in bankruptcy or insolvency proceedings, or (d) if the Servicer
believes that the Receivable will be charged off in the foreseeable future or
that the related Dealer will be in bankruptcy or insolvency proceedings in the
foreseeable future.
(b) In order to remove Receivables in accordance with Section
2.10(a), the Seller shall send a notice to the Trustee and the Rating Agencies
identifying the proposed removal date and the Receivables to be removed,
together with a certification by the Seller and the Servicer to the effect that
such removal complies with the terms of this Section 2.10. On the proposed
removal date, the Seller shall remit to the Trustee, for deposit in the
Collection Account, an amount equal to the outstanding principal balances of
such Receivables.
(c) The Trustee is hereby authorized to enter into any assignment
documentation reasonably requested and prepared by the Seller in connection with
this Section 2.10.
ARTICLE III
Administration and Servicing
of Receivables
SECTION 3.1. Acceptance of Appointment and Other Matters Relating to
the Servicer. (a) The Servicer shall service and administer the Receivables,
shall collect payments due under the Receivables and shall charge-off as
uncollectible Receivables, all in accordance with its customary and usual
servicing procedures in effect from time to time for servicing wholesale
receivables comparable to the Receivables which the Servicer services for its
own account and in accordance with the Financing Guidelines; provided, however,
that (i) the Servicer shall change its policy for charging off wholesale
receivables as totally uncollectible only upon satisfaction of the Rating Agency
Condition and (ii) in respect of a Floorplan Agreement, the obligation of the
related Manufacturer to repurchase repossessed Products may be modified and
subject to various terms, but shall not be deleted; and provided, further, that
if a Successor Servicer shall succeed to the duties of the Servicer, the
Successor Servicer shall service the Receivables in accordance with standards
that would be employed by a prudent lender in servicing comparable receivables
for its own account. The Servicer shall have full power and authority, acting
alone or through any party properly designated by it hereunder, to do
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any and all things in connection with such servicing and administration which it
may deem necessary or desirable. Without limiting the generality of the
foregoing and subject to Section 10.1, the Servicer is hereby authorized and
empowered, unless such power and authority is revoked by the Trustee on account
of the occurrence of a Servicer Default pursuant to Section 10.1, (i) to
instruct the Trustee to make withdrawals and payments from the Collection
Account and any Series Account as set forth in this Agreement or any Supplement,
(ii) to instruct the Trustee to take any action required or permitted under any
Enhancement, (iii) to execute and deliver, on behalf of the Trust for the
benefit of the Certificateholders and the other Beneficiaries, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the Receivables
and, after the delinquency of any Receivable and to the extent permitted under
and in compliance with applicable Requirements of Law, to commence enforcement
proceedings (which, to the extent permitted by applicable law, may be in the
name of the Servicer) with respect to such Receivables, (iv) to make any
filings, reports, notices, applications, registrations with, and seek any
consents or authorizations from, the Securities and Exchange Commission and any
State securities authority on behalf of the Trust as may be necessary or
advisable to comply with any Federal or State securities laws or reporting
requirement, and (v) to delegate certain of its servicing, collection,
enforcement and administrative duties hereunder with respect to the Accounts and
the Receivables to any Person who agrees to conduct such duties in accordance
with the Financing Guidelines (or such other standards required hereunder in the
case of a Successor Servicer) and this Agreement; provided, however, that (a)
the Servicer shall notify the Trustee, the Rating Agencies, any Agent and any
Enhancement Providers in writing of any such delegation of its duties which is
not in the ordinary course of its business, (b) no delegation shall relieve the
Servicer of its liability and responsibility with respect to such duties and (c)
the Rating Agency Condition shall have been satisfied with respect to any
delegation whether that delegation is in the ordinary course of business or
otherwise. The Trustee shall execute and deliver to the Servicer any powers of
attorney and other documents prepared by the Servicer and certified by a
Servicing Officer as being reasonably necessary or appropriate to enable the
Servicer to carry out its servicing and administrative duties hereunder.
(b) In the event that the Seller is unable or is not permitted for
any reason to transfer Receivables to the Trust in accordance with the
provisions of this Agreement (including by reason of the application of the
provisions of Section 2.1 or Section 9.2 or any court of competent jurisdiction
ordering that the Seller not transfer any additional Receivables to the Trust)
then, in any such event, the Servicer agrees (i) to give prompt written notice
thereof to the Trustee, any Enhancement Providers, any Agent and each Rating
Agency and (ii) that it shall in any such event allocate, after the occurrence
of such event, Principal Collections with respect to each Account first to the
oldest principal balance of Receivables in such Account, and to have such
payments applied as Collections in accordance with Section 4.2. The parties
hereto agree that Non-Principal Collections with respect to Receivables that are
in the Trust shall continue to be allocated and paid in accordance with the
terms of this Agreement.
(c) The Servicer shall not, and any Successor Servicer shall not
be obligated to, use separate servicing procedures, offices, employees or
accounts for servicing the Receivables from the procedures, offices, employees
and accounts used by the Servicer or such Successor Servicer in connection with
servicing other wholesale receivables.
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(d) The Servicer shall comply with and perform its servicing
obligations with respect to the Financing Agreements relating to the Accounts
and the Financing Guidelines (except as otherwise provided in Section 3.1(a)),
except insofar as any failure to so comply or perform would not materially and
adversely affect the rights of the Trust or any of the Beneficiaries. Subject to
compliance with all Requirements of Law and subject to Section 3.1(a), the
Servicer (or DFS) may change the terms and provisions of the Wholesale Financing
Agreements, the Floorplan Agreements, the Accounts Receivable Financing
Agreements, the Asset Based Lending Financing Agreements or the Financing
Guidelines in any respect (including the calculation of the amount or the timing
of charge-offs and the rate of the finance charge assessed thereon), if, in the
reasonable judgment of the Servicer, no Early Amortization Event shall occur as
a result of such change.
SECTION 3.2. Servicing Compensation. As full compensation for its
servicing activities hereunder and reimbursement for its expenses as set forth
in the immediately following paragraph, the Servicer shall be entitled to
receive the Servicing Fee on each Distribution Date on or prior to the Trust
Termination Date payable in arrears. The "Servicing Fee" shall be the aggregate
of the Monthly Servicing Fees specified in the Supplements. The Servicing Fee
shall be payable to the Servicer solely to the extent amounts are available for
payment in accordance with the terms of the Supplements.
The Servicer's expenses include the amounts due to the Trustee
pursuant to Section 11.5 and the reasonable fees and disbursements of
independent accountants and all other expenses (including costs of collection
and legal fees) incurred by the Servicer in connection with its activities
hereunder, and including all other fees and expenses of the Trust not expressly
stated herein to be for the account of or payable by the Certificateholders, the
Seller or the Trust; provided that the Servicer shall not be responsible for
paying federal, state or local income or franchise taxes, if any, of the Seller,
the Trust or any Certificateholder. The Servicer shall be required to pay such
expenses for its own account, and shall not be entitled to any payment therefor
other than the Servicing Fee. The Servicer shall be solely responsible for all
fees and expenses incurred by or on behalf of the Servicer in connection
herewith and the Servicer shall not be entitled to any fee or other payment
from, or claim on, any of the Trust Assets (other than the Servicing Fee).
SECTION 3.3. Representations, Warranties and Covenants of the
Servicer. (a) DFS, as Servicer, hereby makes, and any Successor Servicer by its
appointment hereunder shall make, on each Closing Date (and on the date of any
such appointment) the following representations, warranties and covenants:
(i) Organization and Good Standing. Such party is a
corporation duly organized, validly existing and in good standing under
the applicable laws of the state of its incorporation and has, in all
material respects, full corporate power, authority and legal rights to own
its properties and conduct its wholesale receivable servicing business as
such properties are presently owned and as such business is presently
conducted, and to execute, deliver and perform its obligations under this
Agreement and the applicable Supplement.
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(ii) Due Qualification. Such party is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt
from such requirements) and has obtained all necessary licenses and
approvals in each jurisdiction in which the servicing of the Receivables
as required by this Agreement requires such qualification except where the
failure to so qualify or obtain licenses or approvals would not have a
material adverse effect on its ability to perform its obligations
hereunder and under each Supplement.
(iii) Due Authorization. The execution, delivery, and
performance of this Agreement and the applicable Supplement has been duly
authorized by such party by all necessary corporate action on the part
thereof and are within its corporate powers.
(iv) Binding Obligation. This Agreement and each applicable
Supplement constitutes a legal, valid and binding obligation of such
party, enforceable in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereinafter in effect, affecting
the enforcement of creditors' rights and except as such enforceability may
be limited by general principles of equity (whether considered in a
proceeding at law or in equity).
(v) No Violation. The execution and delivery of this
Agreement and the applicable Supplement by such party, the performance of
the transactions contemplated by this agreement and the applicable
Supplement and the fulfillment of the terms hereof and thereof applicable
to such party shall not conflict with or violate any Requirements of Law
applicable to such party or conflict with, violate, result in any breach
of any of the material terms and provisions of, or constitute (with or
without notice or lapse of time or both) a material default under any
indenture, contract, agreement, mortgage, deed of trust, or other
instrument to which such party is a party or by which it is bound.
(vi) No Proceedings. There are no proceedings or, to the best
knowledge of such party, investigations, pending or threatened against
such party before any court, regulatory body, administrative agency or
other tribunal or governmental instrumentality seeking to prevent the
issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement and the applicable Supplement,
seeking any determination or ruling that, in the reasonable judgment of
such party, would materially and adversely affect the performance by such
party of its obligations under this Agreement and the applicable
Supplement, or seeking any determination or ruling that would materially
and adversely affect the validity or enforceability of this Agreement and
the applicable Supplement.
(vii) No Consents. No authorizations, consents, orders or
approvals of or notices to or registrations or declarations or filings
with any Governmental Authority are required to be obtained, effected or
given by the Servicer in connection with the due execution and delivery of
this Agreement and each Supplement by the Servicer and the performance of
the transactions contemplated by this Agreement and each Supplement by
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the Servicer, except for those that have been duly obtained, effected or
given and are in full force and effect.
(viii) Compliance with Requirements of Law. Such party shall
duly satisfy all obligations on its part to be fulfilled under or in
connection with the Receivables and the Accounts, shall maintain in effect
all qualifications required under Requirements of Law in order to service
properly the Receivables and the Accounts and shall comply in all material
respects with all Requirements of Law in connection with servicing the
Receivables and the Accounts the failure to comply with which would have a
material adverse effect on the interests of Beneficiaries.
(ix) No Rescission or Cancellation. Such party shall not
permit any rescission or cancellation of a Receivable except as ordered by
a court of competent jurisdiction or other Governmental Authority;
provided that this clause (ix) shall not prohibit a negotiated work-out of
defaulted Receivables that enhances the Trust's recovery in respect of
such Receivables.
(x) Protection of Beneficiaries Rights. Such party shall
take no action, nor omit to take any action, which would impair the rights
of Beneficiaries in the Receivables nor shall it reschedule, revise or
defer payments due on any Receivable except in accordance with the
Financing Guidelines (or other servicing standards required hereunder in
the case of a Successor Servicer).
(xi) Negative Pledge. Except for the conveyance hereunder to
the Trustee and the conveyances of Participation Interests permitted by
the Receivables Contribution and Sale Agreement, the Servicer shall not
sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on, any Receivable sold and
assigned to the Trust, whether now existing or hereafter created, or any
interest therein, and the Servicer shall defend the rights, title and
interest of the Trust in, to and under any Receivable sold and assigned to
the Trust, whether now existing or hereafter created, against all claims
of third parties claiming through or under the Seller or the Servicer.
(b) Notice of Breach. The representations and warranties set forth
in this Section 3.3 shall survive the transfer and assignment of the Receivables
to the Trust and the issuance of the Certificates. Upon discovery by the Seller,
the Servicer or a Responsible Officer of the Trustee of a breach of any of the
representations and warranties or covenants set forth in this Section 3.3, the
party discovering such breach shall give prompt written notice to the other
parties and to any Enhancement Providers.
(c) Purchase. In the event any covenant under Section
3.3(a)(viii), (ix) or (x) has not been complied with in any material respect
with respect to any Receivable or Account and such non-compliance has a material
adverse effect on the Certificateholders' Interest in such Receivable or
Account, then, within 30 days (or such longer period as may be agreed to by the
Trustee) of the earlier to occur of the discovery of any such event by the
Seller or the Servicer, or receipt by the Seller or the Servicer of written
notice of any such event given by the Trustee or any Enhancement Providers, the
Servicer shall purchase such Receivable or, in the case of non-
43
compliance with respect to an Account, all Receivables in such Account, on the
Determination Date immediately succeeding the expiration of such 30-day period
(or such longer period as may be agreed to by the Trustee) on the terms and
conditions set forth in the next succeeding paragraph; provided, however, that
no such purchase shall be required to be made with respect to such Receivable
if, by the end of such 30-day period (or such longer period as may be agreed to
by the Trustee) the non-compliance shall have been remedied in all material
respects and any material adverse effect caused thereby shall have been cured.
The Servicer shall effect such purchase by depositing in the Collection Account
in immediately available funds an amount equal to the Purchase Price of such
Receivable. Any such deposit of such Purchase Price into the Collection Account
shall be considered a Transfer Deposit Amount and shall be applied in accordance
with the terms of this Agreement.
Upon each such payment of such Purchase Price, the Trust shall
automatically and without further action be deemed to sell, transfer, assign,
set over and otherwise convey to the Servicer, without recourse, representation
or warranty (other than the representation that the Trustee has not sold,
transferred or assigned an interest in the Receivables), all right, title and
interest of the Trust in and to such Receivables, all monies due or to become
due with respect thereto and all proceeds thereof and the related Collateral
Security. The Trustee shall execute such documents and instruments of transfer
or assignment and take such other actions as shall be reasonably requested and
prepared by the Servicer to effect the conveyance of any such Receivables
pursuant to this Section. The obligation of the Servicer to purchase such
Receivables, and to make the deposits required to be made to the Collection
Account as provided in the preceding paragraph, shall constitute the sole remedy
respecting the event giving rise to such obligation available to
Certificateholders or the Trustee on behalf of Certificateholders.
SECTION 3.4. Reports and Records for the Trustee. On or before each
Distribution Date, with respect to each outstanding Series, the Servicer shall
deliver to any Enhancement Providers, the Rating Agencies, the Trustee and each
Investor Certificateholder a Distribution Date Statement for such Distribution
Date substantially in the form specified in the related Supplement.
SECTION 3.5. Annual Servicer's Certificate and Assertion. The
Servicer shall deliver to the Rating Agencies, the Trustee, any Agent and any
Enhancement Providers on or before March 31 of each calendar year,
(a) an Officer's Certificate substantially in the form of
Exhibit C stating that (i) a review of the activities of the
Servicer during the preceding calendar year (or part of the
preceding calendar year in the case of the first Officers'
Certificate) and of its performance under this Agreement was made
under the supervision of the officer signing such certificate and
(ii) to the best of such officer's knowledge, based on such review,
the Servicer has performed in all material respects its obligations
under this Agreement and each Supplement throughout such year (or
part of such year, as applicable), or, if there has been a material
default in the performance of any such obligation, specifying each
such default known to such officer and the nature and status
thereof, and
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(b) an assertion (made in accordance with generally accepted
auditing standards) addressed to a firm of nationally recognized
independent certified public accountants, who may also render other
services to the Servicer or to the Seller, stating that (i) the
Servicer is responsible for compliance with the servicing
requirements in Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.9 of
this Agreement and Article IV of this Agreement, and the applicable
provisions of the Supplements for the outstanding Series, and (ii)
based upon the evaluation of the Servicer's compliance with the
aforementioned sections of this Agreement and the applicable
provisions of the Supplements for the outstanding Series throughout
such year, the Servicer believes that it was in compliance with the
aforementioned sections of this Agreement and the applicable
provisions of the Supplements for the outstanding Series in all
material respects, or, if there has been a material default in the
performance of any such obligations, specifying such default known
to the Servicer and the nature and the status thereof.
SECTION 3.6. Annual Independent Public Accountants' Attestation and
Agreed Upon Procedures Report. (a) The Servicer shall cause a firm of nationally
recognized independent certified public accountants, who may also render other
services to the Servicer or to the Seller, to deliver to the Trustee, the Rating
Agencies, each Agent and each Enhancement Provider on or before March 31 of each
year, a report addressed to the Servicer and the Trustee, to the effect that
they have examined the assertion prepared by the Servicer on the Servicer's
compliance with the servicing requirements in Sections 3.1, 3.2, 3.3, 3.4, 3.5,
3.6 and 3.9 of this Agreement and Article IV of this Agreement, and the
applicable provisions of the Supplements for the outstanding Series, and that
based upon examination of such assertion, the Servicer was in compliance with
this Agreement and the applicable provisions of the Supplements for the
outstanding Series throughout such year (or part of such year, as applicable),
in all material respects, or, if there has been a material default in the
performance of any such obligations, specifying such default of the Servicer and
the nature thereof.
(b) On or before March 31 of each calendar year, the Servicer
shall cause a firm of nationally recognized independent public accountants (who
may also render other services to the Servicer or Seller) to furnish a report
(addressed to the Trustee) to the Trustee, each Agent, the Servicer, each Rating
Agency and each Enhancement Provider to the effect that they have performed
certain agreed upon procedures (and which reports the results of those
procedures), which were agreed to by the Servicer, solely to assist in
evaluating the Servicer's assertion as to the Servicer's compliance with the
servicing requirements in Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.9 of this
Agreement and Article IV of this Agreement, and the applicable provisions of the
Supplements for the outstanding Series.
(c) A copy of each statement, certificate, assertion or report
provided pursuant to Section 3.4, 3.5 or 3.6 may be obtained by any Investor
Certificateholder or Certificate Owner by a request to the Trustee addressed to
the Corporate Trust Office.
SECTION 3.7. Tax Treatment. The Seller has entered into this
Agreement and the Investor Certificates have been (or shall be) issued with the
intention that the Investor Certificates shall qualify as indebtedness secured
by the Receivables for Federal income taxes, state and local income and
franchise taxes (if such franchise taxes are imposed on or measured
45
by income) and any other taxes imposed on or measured by income. The Seller, the
Servicer, each Beneficiary and each Certificateholder and Certificate Owner, by
the acceptance of its Certificate or Book-Entry Certificate or an interest in a
Certificate or a Book-Entry Certificate, as applicable, agrees to treat the
Investor Certificates as indebtedness secured by the Receivables for Federal
income taxes, state and local income and franchise taxes (if such franchise
taxes are imposed on or measured by income) and any other taxes imposed on or
measured by income.
SECTION 3.8. Notices to DFS. In the event DFS is no longer acting as
Servicer, any Successor Servicer appointed pursuant to Section 10.2 shall
deliver or make available to DFS, as the case may be, each certificate and
report required to be prepared, forwarded or delivered thereafter pursuant to
Sections 3.4, 3.5 or 3.6.
SECTION 3.9. Adjustments. (a) If the Servicer adjusts downward the
amount of any Principal Receivable because of a rebate, refund, credit
adjustment or billing error to a Dealer, or because such Receivable was created
in respect of a Product which was refused or returned by a Dealer, then, in any
such case, the Seller's Participation Amount shall be automatically reduced by
the amount of the adjustment. Furthermore, if following such a reduction the
Pool Balance would be less than the Required Participation Amount on the
immediately preceding Determination Date (after giving effect to the
allocations, distributions, withdrawals and deposits to be made on the
Distribution Date immediately following such Determination Date), then the
Seller shall be required to pay an amount equal to such deficiency (up to the
amount of such adjustment) into the Collection Account on the day on which such
reduction occurs (each such payment an "Adjustment Payment").
(b) If (i) the Servicer makes a deposit into the Collection
Account in respect of a Collection of a Receivable and such Collection was
received by the Servicer in the form of a check which is not honored for any
reason or (ii) the Servicer makes a mistake with respect to the amount of any
Collection and deposits an amount that is less than or more than the actual
amount of such Collection, the Servicer shall appropriately adjust the amount
subsequently deposited into the Collection Account to reflect such dishonored
check or mistake. Any Receivable in respect of which a dishonored check is
received shall be deemed not to have been paid.
ARTICLE IV
Rights of Holders and
Allocation and Application of Collections
SECTION 4.1. Rights of Holders. The Investor Certificates shall
represent fractional undivided interests in the Trust, which, with respect to
each Series, shall consist of the right to receive pari passu, to the extent
necessary to make the required payments with respect to the Investor
Certificates of such Series at the times and in the amounts specified in the
related Supplement, the portion of Collections allocable to Investor
Certificateholders of such Series pursuant to this Agreement and such
Supplement, funds on deposit in the Collection Account allocable to
Certificateholders of such Series pursuant to this Agreement and such
Supplement, funds on deposit in any related Series Account and funds available
pursuant to any related Enhancement (collectively, with respect to all Series,
the "Certificateholders' Interest");
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provided that the Investor Certificates of any Series or Class shall not
represent any interest in any Series Account or Enhancement for the benefit of
any other Series or Class; provided, further, that allocations to a Series other
than the Dealer Overconcentration Series are subject to allocations to the
Dealer Overconcentration Series. The Seller's Certificate shall represent a
fractional undivided interest in the Trust, which shall consist of the right to
receive Collections with respect to the Receivables and other amounts at the
times and in the amounts specified in this Agreement or in any Supplement to be
paid to the Seller on behalf of all holders of the Seller's Certificates (the
"Seller's Interest"), and shall evidence the interest in the Trust not allocated
to the Certificateholders' Interest; provided, however, that the Seller's
Certificates shall not represent any interest in the Collection Account, any
Series Account or any Enhancement, except as specifically provided in this
Agreement or any Supplement.
SECTION 4.2. Establishment of the Collection Account. The Trustee
has established and maintained, and shall continue to maintain, in the name of
the Trust an Eligible Deposit Account bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the
Certificateholders and the other Beneficiaries (the "Collection Account"). The
Trustee shall possess all right, title and interest in all funds from time to
time on deposit in, and all Eligible Investments credited to, the Collection
Account and in all proceeds thereof. The Collection Account shall be under the
sole dominion and control of the Trustee for the benefit of the
Certificateholders and the other Beneficiaries. If, at any time, the Collection
Account ceases to be an Eligible Deposit Account, the Servicer shall, within 10
days after such occurrence, establish a substitute Eligible Deposit Account as
the Collection Account, instruct the Trustee to transfer any cash and/or any
Eligible Investments to such new Collection Account and, from the date any such
substitute account is established, such account shall be the Collection Account.
Neither the Seller nor the Servicer, nor any Person claiming by, through or
under the Seller or Servicer, shall have any right, title or interest in, or any
right to withdraw any amount from, the Collection Account. Pursuant to the
authority granted to the Servicer in Section 3.1, the Servicer shall have the
power, revocable by the Trustee, to instruct the Trustee to make withdrawals and
payments from the Collection Account for the purposes of carrying out the
Servicer's or Trustee's duties specified in this Agreement.
All Eligible Investments shall be held by the Trustee for the
benefit of the Certificateholders and the other Beneficiaries. Funds on deposit
in the Collection Account shall at the direction of the Servicer be invested by
the Trustee solely in Eligible Investments that shall mature so that such funds
shall be available by the close of business on the Business Day preceding the
next Distribution Date (or on or before 10:00 a.m. on such next Distribution
Date in the case of Eligible Investments in respect of which the Trustee is the
obligor). Any request by the Servicer to invest funds in the Collection Account
shall be in writing and shall certify that the requested investment is an
Eligible Investment that matures at or prior to the time required hereby. As of
each Determination Date, all interest and other investment earnings (net of
losses and investment expenses) on funds on deposit in the Collection Account
received on such Determination Date shall be credited to the Collection Account.
Schedule 2, which is hereby incorporated into and made part of this Agreement,
identifies the Collection Account by setting forth the account number of such
account, the account designation of such account and the name of the Eligible
Institution with which such account has been established. If a substitute
Collection Account is established pursuant to this Section 4.2, the Servicer
shall provide to the
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Trustee an amended Schedule 2, setting forth the relevant information for such
substitute Collection Account.
SECTION 4.3. Allocations and Applications of Collections and Other
Funds. (a) Except as otherwise provided in Sections 4.3(b) and (c), the Servicer
shall deposit Collections into the Collection Account as promptly as possible
after the Date of Processing of such Collections, but in no event later than the
second Business Day after such Date of Processing.
(b) Notwithstanding anything in this Agreement to the contrary,
for so long as (i) DFS remains the Servicer hereunder, (ii) no Servicer Default
has occurred and is continuing and (iii) (x) DFS arranges for and maintains a
letter of credit or other form of Enhancement in respect of the Servicer's
obligations to make deposits of collections on the Receivables in the Collection
Account that is acceptable in form and substance to each Rating Agency and any
Agents or (y) DFS otherwise obtains the Rating Agency confirmations described
below, then, subject to any limitations in the confirmations described below,
the Servicer need not make the daily deposits of Collections into the Collection
Account as provided in Section 4.3(a), but may make a single deposit into the
Collection Account in same-day funds not later than 12:00 noon, New York City
time, on the Business Day immediately preceding the Distribution Date in a net
amount equal to the amount which would have been on deposit with respect to the
immediately preceding Collection Period in the Collection Account; provided,
however, that prior to ceasing daily deposits as described above the Seller
shall have delivered to the Trustee written confirmation from each of the Rating
Agencies that the failure by DFS to make daily deposits shall not result in a
reduction or withdrawal of the rating of any outstanding Series or Class.
(c) Subject to Section 4.4, but notwithstanding anything else in
this Agreement to the contrary, with respect to any Collection Period, whether
the Servicer is required to make deposits of Collections pursuant to paragraph
(a) or (b) above, (i) the Servicer shall only be required to deposit Collections
into the Collection Account up to the aggregate amount of Collections required
to be deposited into all Series Accounts or, without duplication, distributed on
the related Distribution Date to all Investor Certificateholders, to each Agent
or to each Enhancement Provider pursuant to the terms of any Supplement or
Enhancement Agreement and (ii) if at any time prior to such Distribution Date
the amount of Collections deposited in the Collection Account exceeds the amount
required to be deposited pursuant to clause (i) above, the Servicer shall be
permitted to withdraw the excess from the Collection Account.
The Servicer may make any deposits, distributions or payments under
this Agreement or a Supplement net of any amounts to be distributed or paid to
the Servicer under this Agreement or a Supplement; provided that the Servicer
shall account for such deposits, distributions and payments as if such amounts
were deposited, distributed or paid separately without such netting. The
Servicer shall net the portion of its Monthly Servicing Fee allocated to a
particular Series for a Distribution Date only if amounts deposited in the
Collection Account for that Distribution Date otherwise would be sufficient to
pay the amounts that are payable to that Series on such Distribution Date.
(d) Subject to Section 4.5, collections of Non-Principal
Receivables and Principal Receivables, Defaulted Amounts and Miscellaneous
Payments shall be allocated to
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each Series from and after the related Series Cut-Off Date as specified in the
related Supplement, and amounts so allocated to any Series shall not, except as
specified in the related Supplement, be available to the Investor
Certificateholders of any other Series. Allocations thereof between the
Certificateholders' Interest and the Seller's Interest, among the Series in any
group and among the Classes in any Series shall be set forth in the related
Supplement or Supplements.
(e) With respect to a receivable in which a Receivable and a
Participation Interest are undivided interests, the Servicer shall instruct the
Trustee in writing to distribute (and the Trustee shall distribute) the portion
of a collection allocable to such Participation Interest from the Collection
Account (to the extent it has been deposited into the Collection Account) to the
Servicer not later than one month after the deposit of such portion into the
Collection Account.
SECTION 4.4. Unallocated Principal Collections. On each Distribution
Date, (a) the Servicer shall allocate Excess Principal Collections (as described
below) to each Series as set forth in the related Supplement and (b) the
Servicer shall instruct the Trustee in the Distribution Date Statement for such
Distribution Date to withdraw from the Collection Account and pay to the Seller
(i) an amount equal to the excess, if any, of (x) the aggregate amount, if any,
for all outstanding Series of Collections of Principal Receivables which the
related Supplements specify are to be treated as "Excess Principal Collections"
with respect to such Distribution Date, over (y) the aggregate amount, if any,
for all outstanding Series which the related Supplements specify are "Principal
Shortfalls" with respect to such Distribution Date and, without duplication,
(ii) the aggregate amount for all outstanding Series of that portion of
Principal Collections which the related Supplements specify are to be allocated
and paid to the Seller with respect to such Distribution Date; provided,
however, that, in the case of clauses (i) and (ii), such amounts shall be paid
to the Seller only if the Unconcentrated Pool Balance for such Distribution Date
(determined after giving effect to any Principal Receivables transferred to the
Trust on such date) exceeds the Required Participation Amount for the
immediately preceding Determination Date (after giving effect to the
allocations, distributions, withdrawals and deposits to be made on such
Distribution Date). The amount held in the Collection Account as a result of the
proviso in the preceding sentence ("Unallocated Principal Collections") shall be
paid to the Seller at the time the Unconcentrated Pool Balance exceeds the
Required Participation Amount for the immediately preceding Determination Date
(after giving effect to the allocations, distributions, withdrawals and deposits
to be made on the Distribution Date immediately following such Determination
Date); provided, however, that any Unallocated Principal Collections on deposit
in the Collection Account at any time during which any Series is in its
amortization period, accumulation period or Early Amortization Period shall be
deemed to be "Miscellaneous Payments" and shall be allocated and distributed in
accordance with Sections 4.3 and 4.5 and the terms of each Supplement.
SECTION 4.5. Allocations to the Dealer Overconcentration Series. (a)
On each Determination Date, the Servicer shall determine whether a Dealer
Overconcentration exists with respect to any Dealer, and, if any Dealer
Overconcentration does exist, shall calculate the Overconcentration Percentage
for each Overconcentrated Dealer. For so long as a Dealer Overconcentration
exists, Principal Collections, Non-Principal Collections, Defaulted Amounts and
Miscellaneous Payments related to an Overconcentrated Dealer shall be allocated
in accordance with paragraph (b) of this Section.
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(b) Notwithstanding any other provision of this Agreement, (a) the
Overconcentration Percentage of (i) all Principal Collections relating to each
Overconcentrated Dealer, (ii) all Non-Principal Collections relating to each
Overconcentrated Dealer, and (iii) all Defaulted Amounts and Miscellaneous
Payments relating to each Overconcentrated Dealer with respect to each
Collection Period shall be allocated to the Dealer Overconcentration Series, and
(b) the Unconcentrated Percentage of (i) all Principal Collections relating to
each Overconcentrated Dealer, (ii) all Non-Principal Collections relating to
each Overconcentrated Dealer, and (iii) all Defaulted Amounts and Miscellaneous
Payments relating to each Overconcentrated Dealer shall be allocated among the
Seller's Interest and the Certificateholders' Interest of the outstanding Series
(other than the Dealer Overconcentration Series).
ARTICLE V
Distributions and Reports to
Certificateholders
Distributions shall be made to, and reports shall be provided to,
Certificateholders as set forth in the applicable Supplement.
ARTICLE VI
The Certificates
SECTION 6.1. The Certificates. The Investor Certificates of any
Series or Class may be issued (a) in fully registered form ("Registered
Certificates") and shall be substantially in the form of the exhibits with
respect thereto attached to the applicable Supplement, or (b) in uncertificated
form. The Deutsche FRLP Certificate was issued to the Seller in registered form.
If specified in any Supplement, the Investor Certificates of any Series or Class
shall be issued upon initial issuance as a single certificate evidencing the
aggregate original principal amount of such Series or Class as described in
Section 6.11. The Deutsche FRLP Certificate shall be a single certificate and
shall initially represent the entire Seller's Interest. Each Certificate shall
be executed by manual or facsimile signature on behalf of the Seller by its
President or any Vice President. Certificates bearing the manual or facsimile
signature of the individual who was, at the time when such signature was
affixed, authorized to sign on behalf of the Seller shall not be rendered
invalid, notwithstanding that such individual ceased to be so authorized prior
to the authentication and delivery of such Certificates or does not hold such
office at the date of such Certificates. No Certificates shall be entitled to
any benefit under this Agreement, or be valid for any purpose, unless there
appears on such Certificate a certificate of authentication substantially in the
form provided for herein executed by or on behalf of the Trustee by the manual
signature of a duly authorized signatory, and such certificate upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All Registered
Certificates and Seller's Certificates shall be dated the date of their
authentication.
SECTION 6.2. Authentication of Certificates. The Trustee shall
authenticate and deliver the Investor Certificates of each Series and Class that
are issued upon original issuance to
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or upon the order of the Seller, which order may be given under normal or
facsimile signature. The Trustee authenticated and delivered the Deutsche FRLP
Certificate to the Seller simultaneously with its delivery of the Investor
Certificates of the first Series issued hereunder. If specified in the related
Supplement for any Series or Class, the Trustee shall authenticate and deliver
outside the United States the Global Certificate that is issued upon original
issuance thereof.
SECTION 6.3. New Issuances. (a) The Seller may from time to time
direct the Trustee, on behalf of the Trust, to issue one or more new Series
pursuant to a Supplement. The Investor Certificates of all outstanding Series
shall be equally and ratably entitled as provided herein to the benefits of this
Agreement without preference, priority or distinction, all in accordance with
the terms and provisions of this Agreement and the applicable Supplement except,
with respect to any Series or Class, as provided in the related Supplement.
(b) On or before the Series Issuance Date relating to any new
Series, the parties hereto shall execute and deliver a Supplement which shall
specify the Principal Terms of such new Series. The terms of such Supplement may
modify or amend the terms of this Agreement solely as applied to such new
Series. The obligation of the Trustee to issue the Investor Certificates of such
new Series on the related Closing Date and to execute and deliver the related
Supplement is subject to the satisfaction of the following conditions:
(i) on or before the fifth Business Day immediately
preceding the Series Issuance Date (or in the case of the Dealer
Overconcentration Series or the Series designated as "Series 2000-1" or
"Series 2000-2", on or before the Series Issuance Date of such Series),
the Seller shall have given the Trustee, the Servicer, each Rating Agency,
any Agent and any Enhancement Provider written notice of such issuance and
the anticipated date on which such Series will be issued;
(ii) the Seller shall have delivered to the Trustee the
related Supplement, in form satisfactory to the Trustee, executed by each
party hereto other than the Trustee;
(iii) the Seller shall have delivered to the Trustee any
related Enhancement Agreement executed by each of the parties thereto,
other than the Trustee;
(iv) the Rating Agency Condition, if applicable, shall have
been satisfied with respect to such issuance;
(v) such issuance shall not result in the occurrence of an
Early Amortization Event and the Seller shall have delivered to the
Trustee, any Agent and any Enhancement Provider a certificate of a Vice
President or more senior officer, dated the Series Issuance Date, to the
effect that the Seller reasonably believes that such issuance shall not
result in the occurrence of an Early Amortization Event and is not
reasonably expected to result in the occurrence of an Early Amortization
Event at any time in the future;
(vi) the Seller shall have delivered to the Trustee and any
Enhancement Provider a Tax Opinion, dated the Series Issuance Date, with
respect to such issuance;
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(vii) the result obtained by multiplying (x) the Seller's
Participation Amount by (y) the percentage equivalent of the portion of
the Seller's Interest represented by the Deutsche FRLP Certificate, shall
not be less than 2% of the Pool Balance, in each case as of the Series
Issuance Date, and after giving effect to such issuance;
(viii) if there are any Delayed Funding Receivables in the
Pool Balance, the conditions in clauses (v) and (vii) shall also be
satisfied after excluding from the Pool Balance all Principal Receivables
that are Delayed Funding Receivables; and
(ix) the Seller shall have delivered to the Trustee an
Officer's Certificate to the effect that the conditions precedent in this
Section 6.3(b) have been satisfied; and
Upon satisfaction of the above conditions, the Trustee shall execute the
Supplement and issue to the Seller the Investor Certificates, if any, of such
Series for execution and redelivery to the Trustee for authentication.
(c) The Seller may surrender the Deutsche FRLP Certificate to the
Trustee in exchange for a newly issued Deutsche FRLP Certificate and a second
certificate (a "Supplemental Certificate"), the terms of which shall be defined
in a supplement to this Agreement (which Supplement shall be subject to Section
13.1 hereof to the extent that it amends any of the terms of this Agreement), to
be delivered to or upon the order of the Seller (or the holder of a Supplemental
Certificate, in the case of the transfer or exchange thereof, as provided
below), upon satisfaction of the following conditions:
(i) the result obtained by multiplying (x) the Seller's
Participation Amount (determined in accordance with Section 2.5(a)) by (y)
the percentage equivalent of the portion of the Seller's Interest
represented by the Deutsche FRLP Certificate, shall not be less than 2% of
the Pool Balance (determined in accordance with Section 2.5(a)), in each
case as of the date of, and after giving effect to, such exchange;
(ii) the Rating Agency Condition shall have been satisfied
with respect to such exchange (or transfer or exchange as provided below);
(iii) the Seller shall have delivered to the Trustee, any
Agent and any Enhancement Provider a Tax Opinion, dated the date of such
exchange (or transfer or exchange as provided below), with respect to such
transfer and exchange; and
(iv) the Seller shall have delivered to the Trustee an
Officer's Certificate to the effect that the conditions precedent in this
Section 6.3(c) shall have been satisfied.
The Deutsche FRLP Certificate shall at all times be beneficially owned by the
Seller. Any Supplemental Certificate may be transferred or exchanged only upon
satisfaction of the conditions set forth in clauses (ii) and (iii) above.
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(d) Notwithstanding anything to the contrary in this Agreement,
any Series may be issued in uncertificated form, i.e., without being evidenced
by a certificate of any kind. This is in addition to, and is not the same as,
the fact that certificates of a Series may be issued as Book-Entry Certificates.
All references in this Agreement or a Supplement (x) to a Series shall be deemed
to refer also to an uncertificated Series, and (y) to Certificateholders of a
Series shall be deemed to refer also to the holder or holders of an
uncertificated Series.
SECTION 6.4. Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall cause to be kept at the office or agency to be maintained
in accordance with the provisions of Section 11.15 a register (the "Certificate
Register") in which, subject to such reasonable regulations as it may prescribe,
a transfer agent and registrar (the "Transfer Agent and Registrar") shall
provide for the registration of the Registered Certificates and the Dealer
Overconcentration Series, and of transfers and exchanges of the Registered
Certificates and the Dealer Overconcentration Series, as herein provided. The
Transfer Agent and Registrar shall initially be the Trustee and any co-transfer
agent and co-registrar chosen by the Seller and acceptable to the Trustee. Any
reference in this Agreement to the Transfer Agent and Registrar shall include
any co-transfer agent and co-registrar unless the context requires otherwise.
Subject to paragraph (c) below, upon surrender for registration of
transfer of any Registered Certificate at any office or agency of the Transfer
Agent and Registrar maintained for such purpose, one or more new Registered
Certificates (of the same Series and Class) in authorized denominations shall be
executed, authenticated and delivered, in the name of the designated transferee
or transferees.
At the option of a Registered Certificateholder, Registered
Certificates (of the same Series and Class) may be exchanged for other
Registered Certificates of authorized denominations upon surrender of the
Registered Certificates to be exchanged at any such office or agency.
The preceding provisions of this Section notwithstanding, the
Trustee or the Transfer Agent and Registrar, as the case may be, shall not be
required to register the transfer of or exchange any Certificate for a period of
15 days preceding the due date for any payment with respect to the Certificate.
Whenever any Investor Certificates are so surrendered for exchange,
the Seller shall execute, the Trustee shall authenticate, and the Transfer Agent
and Registrar shall deliver the Investor Certificates which the Investor
Certificateholder making the exchange is entitled to receive. Every Investor
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in a form satisfactory
to the Trustee or the Transfer Agent and Registrar duly executed by the Investor
Certificateholder or the attorney-in-fact thereof duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Investor Certificates or the Dealer Overconcentration Series, but
the Transfer Agent and Registrar may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
such transfer or exchange.
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All Investor Certificates surrendered for registration of transfer
and exchange or for payment shall be canceled and disposed of in a manner
satisfactory to the Trustee. The Trustee shall cancel and destroy any Global
Certificate upon its exchange in full for Definitive Euro-Certificates and shall
deliver a certificate of destruction to the Seller. Such certificate shall also
state that a certificate or certificates of a Foreign Clearing Agency to the
effect referred to in Section 6.11 was received with respect to each portion of
the Global Certificate exchanged for Definitive Euro-Certificates.
The Seller shall execute and deliver to the Trustee Registered
Certificates in such amounts and at such times as are necessary to enable the
Trustee to fulfill its responsibilities under this Agreement and the
Certificates.
(b) The Transfer Agent and Registrar shall maintain at its expense
in the Borough of Manhattan, The City of New York, an office or agency where
Investor Certificates may be surrendered for registration of transfer or
exchange.
(c) (i) Registration of transfer of Investor Certificates
containing a legend to the effect set forth on Exhibit D-1 shall be effected
only if such transfer is made pursuant to an effective registration statement
under the Act, or is exempt from the registration requirements under the Act. In
the event that registration of a transfer is to be made in reliance upon an
exemption from the registration requirements under the Act, the transferor or
the transferee shall deliver, at its expense, to the Seller, the Servicer and
the Trustee, an investment letter from the transferee, substantially in the form
attached to the applicable Supplement, and no registration of transfer shall be
made until such letter is so delivered.
Investor Certificates issued upon registration or transfer of, or
Investor Certificates issued in exchange for, Investor Certificates bearing the
legend referred to above shall also bear such legend unless the Seller, the
Servicer, the Trustee and the Transfer Agent and Registrar receive an opinion of
counsel, satisfactory to each of them, to the effect that such legend may be
removed.
Whenever an Investor Certificate containing the legend referred to
above is presented to the Transfer Agent and Registrar for registration of
transfer, the Transfer Agent and Registrar shall promptly seek instructions from
the Servicer regarding such transfer and shall be entitled to receive and
conclusively rely upon instructions signed by a Servicing Officer prior to
registering any such transfer. The Seller hereby agrees to indemnify the
Transfer Agent and Registrar and the Trustee and to hold each of them harmless
against any loss, liability or expense incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
them in relation to any such instructions furnished pursuant to this clause (i).
(ii) Registration of transfer of Investor Certificates
containing a legend to the effect set forth on Exhibit D-2 shall be
effected only if such transfer is made to a Person which is not an
employee benefit plan, trust or account, including an individual
retirement account, that is subject to ERISA or that is described in
Section 4975(e)(1) of the Code or an entity whose underlying assets
include plan assets by reason of a plan's investment in such entity (a
"Benefit Plan"). By accepting and holding any such Investor Certificate,
an Investor Certificateholder shall be deemed to have represented and
54
warranted that it is not a Benefit Plan. With respect to any such
Certificate that is a Book-Entry Certificate, by acquiring any interest in
such Book-Entry Certificate a Certificate Owner shall be deemed to have
represented and warranted that it is not a Benefit Plan.
SECTION 6.5. Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Transfer Agent and
Registrar, or the Transfer Agent and Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (b) there
is delivered to the Transfer Agent and Registrar and the Trustee such security
or indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Trustee that such Certificate has been acquired by
a bona fide purchaser, the Seller shall execute, the Trustee shall authenticate
and the Transfer Agent and Registrar shall deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like tenor and aggregate fractional undivided interest. In connection with
the issuance of any new Certificate under this Section, the Trustee or the
Transfer Agent and Registrar may require the payment by the Certificateholder of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee and Transfer Agent and Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section shall constitute
complete and indefeasible evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
SECTION 6.6. Persons Deemed Owners. The Trustee, the Transfer Agent
and Registrar and any agent of any of them may prior to due presentation of a
Registered Certificate for registration of transfer, treat the Person or Persons
in whose name any Registered Certificate is registered as the owner of such
Registered Certificate for the purpose of receiving distributions pursuant to
the terms of the applicable Supplement and for all other purposes whatsoever;
and, in any such case, neither the Trustee, the Transfer Agent and Registrar nor
any agent of any of them shall be affected by any notice to the contrary.
Notwithstanding the foregoing, in determining whether the Holders of the
requisite Investor Certificates have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Certificates owned by the
Seller, the Servicer, any other holder of a Seller's Certificate or any
Affiliate thereof, shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Certificates which a Responsible Officer of the Trustee knows to be so owned
shall be so disregarded. Certificates so owned which have been pledged in good
faith shall not be disregarded and may be regarded as outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Certificates and that the pledgee is not the Seller, the
Servicer, any other holder of a Seller's Certificate or any Affiliate thereof.
SECTION 6.7. Access to List of Registered Certificateholders' Names
and Addresses. The Trustee shall furnish or cause to be furnished by the
Transfer Agent and Registrar to the Servicer, within five Business Days after
receipt by the Trustee of a request therefor, a list in such form as the
Servicer may reasonably require, of the names and addresses of the Registered
Certificateholders. If three or more holders of Investor Certificates (the
"Applicants") apply to the Trustee, and such application states that the
Applicants desire to
55
communicate with other Investor Certificateholders with respect to their rights
under this Agreement or any Supplement or under the Investor Certificates and is
accompanied by a copy of the communication which such Applicants propose to
transmit, then the Trustee, after having been indemnified to its reasonable
satisfaction by such Applicants for its costs and expenses, shall afford or
shall cause the Transfer Agent and Registrar to afford such Applicants access
during normal business hours to the most recent list of Registered
Certificateholders of such Series or all outstanding Series, as applicable, held
by the Trustee, within five Business Days after the receipt of such application.
Such list shall be as of a date no more than 45 days prior to the date of
receipt of such Applicants' request.
Every Registered Certificateholder, by receiving and holding a
Registered Certificate, agrees with the Trustee that neither the Trustee, the
Transfer Agent and Registrar, nor any of their respective agents, shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Registered Certificateholders hereunder, regardless of the
sources from which such information was derived.
SECTION 6.8. Book-Entry Certificates. Unless otherwise specified in
the related Supplement for any Series or Class, the Investor Certificates, upon
original issuance, shall be issued in the form of one or more typewritten
Investor Certificates representing the Book-Entry Certificates, to be delivered
to the Depository, by, or on behalf of, the Seller. The Investor Certificates
shall initially be registered on the Certificate Register in the name of the
Depository or its nominee, and no Certificate Owner shall receive a physical
certificate representing such Certificate Owner's interest in the Investor
Certificates, except as provided in Section 6.10. Unless and until certificated,
fully registered Investor Certificates ("Definitive Certificates") have been
issued to the applicable Certificate Owners pursuant to Section 6.10 or as
otherwise specified in any such Supplement:
(a) the provisions of this Section shall be in full force
and effect;
(b) the Seller, the Servicer and the Trustee may deal with
the Depository and the Depository Participants for all purposes
(including the making of distributions) as the authorized
representatives of the respective Certificate Owners;
(c) to the extent that the provisions of this Section
conflict with any other provisions of this Agreement, the provisions
of this Section shall control; and
(d) the rights of the respective Certificate Owners shall be
exercised only through the Depository and the Depository
Participants and shall be limited to those established by law and
agreements between such Certificate Owners and the Depository and/or
the Depository Participants. Pursuant to the Depository Agreement,
unless and until Definitive Certificates are issued pursuant to
Section 6.10, the Depository shall make book-entry transfers among
the Depository Participants and receive and transmit distributions
of principal and interest on the related Investor Certificates to
such Depository Participants.
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For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Investor
Certificateholders evidencing a specified percentage of the aggregate unpaid
principal amount of Investor Certificates, such direction or consent may be
given by Certificate Owners (acting through the Depository and the Depository
Participants) owning Investor Certificates evidencing the requisite percentage
of principal amount of Investor Certificates.
SECTION 6.9. Notices to Depository. Whenever any notice or other
communication is required to be given to Investor Certificateholders of any
Series or Class with respect to which Book-Entry Certificates have been issued,
unless and until Definitive Certificates shall have been issued to the related
Certificate Owners, the Trustee shall give all such notices and communications
to the applicable Depository.
SECTION 6.10. Definitive Certificates. If Book-Entry Certificates
have been issued with respect to any Series or Class and (a) the Seller advises
the Trustee in writing that the Depository is no longer willing or able to
discharge properly its responsibilities under the Depository Agreement with
respect to such Series or Class, and the Trustee or the Seller is unable to
locate a qualified successor, (b) the Seller, at its option, advises the Trustee
in writing that it elects to terminate the book-entry system with respect to
such Series or Class through the Depository or (c) after the occurrence of a
Servicer Default, Certificate owners of such Series or Class evidencing more
than 50% of the aggregate unpaid principal amount of such Series or Class the
Certificates of which are registered in the name of DTC or its nominee advise
the Trustee in writing and the Depository through the Depository Participants
that the continuation of a book-entry system with respect to the Investor
Certificates of such Series or Class through the Depository is no longer in the
best interests of the Certificate Owners with respect to such Certificates, then
the Trustee shall notify all Certificate Owners of such Certificates, through
the Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Trustee of any such Certificates by the Depository, accompanied
by registration instructions from the Depository for registration, the Trustee
shall authenticate and deliver such Definitive Certificates to such Certificate
Owners. Neither the Seller nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of such Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Depository shall be deemed to be imposed upon and performed by
the Trustee, to the extent applicable with respect to such Definitive
Certificates and the Trustee shall recognize the Holders of such Definitive
Certificates as Investor Certificateholders hereunder.
SECTION 6.11. Global Certificate; Exchange Date. (a) If specified in
the related Supplement for any Series or Class, the Investor Certificates shall
initially be issued in the form of a single temporary global Certificate (the
"Global Certificate") in bearer form, without interest coupons, in the
denomination of the entire aggregate principal amount of such Series or Class
and substantially in the form set forth in the exhibit with respect thereto
attached to the related Supplement. The Global Certificate shall be
authenticated by the Trustee upon the same conditions, in substantially the same
manner and with the same effect as the Definitive Certificates. The Global
Certificate may be exchanged as described below for Registered Certificates in
definitive form (the "Definitive Euro-Certificates").
57
(b) The Manager shall, upon its determination of the date of
completion of the distribution of the Investor Certificates of such Series or
Class, so advise the Trustee, the Seller, the Common Depositary, and each
Foreign Clearing Agency forthwith. A United States institutional investor may
exchange the portion of the Global Certificate beneficially owned by it only for
an equal aggregate principal amount of Registered Certificates bearing the
applicable legend set forth in the form of Registered Certificate attached to
the related Supplement and having a minimum denomination of $500,000, which may
be in temporary form if the Seller so elects. The Seller may waive the $500,000
minimum denomination requirement if it so elects, by delivery of an Officer's
Certificate to the Trustee to such effect. Upon any demand for exchange for
Definitive Euro-Certificates in accordance with this paragraph, the Seller shall
cause the Trustee to authenticate and deliver the Definitive Euro-Certificates
to the Holder and according to the instructions of the Holder, in the case of
Registered Certificates, but in either case only upon presentation to the
Trustee of a written statement substantially in the form of Exhibit F-1 with
respect to the Global Certificate or portion thereof being exchanged, signed by
a Foreign Clearing Agency and dated on the Exchange Date or a subsequent date,
to the effect that it has received in writing or by tested telex a certification
substantially in the form of (i) in the case of beneficial ownership of the
Global Certificate or a portion thereof being exchanged by a United States
institutional investor pursuant to the second preceding sentence, the
certificate in the form of Exhibit F-2 signed by the Manager which sold the
relevant Certificates or (ii) in all other cases, the certificate in the form of
Exhibit F-3, the certificate referred to in this clause (ii) being dated on the
earlier of the first actual payment of interest in respect of such Certificates
and the date of the delivery of such Certificate in definitive form. Upon
receipt of such certification, the Trustee shall cause the Global Certificate to
be endorsed in accordance with paragraph (d) below. Any exchange as provided in
this Section shall be made free of charge to the holders and the beneficial
owners of the Global Certificate and to the beneficial owners of the Definitive
Euro-Certificates issued in exchange, except that a Person receiving Definitive
Euro-Certificates must bear the cost of insurance, postage, transportation and
the like in the event that such Person does not receive such Definitive
Euro-Certificates in person at the offices of a Foreign Clearing Agency.
(c) The delivery to the Trustee by a Foreign Clearing Agency of
any written statement referred to above may be relied upon by the Seller and the
Trustee as conclusive evidence that a corresponding certification or
certifications has or have been delivered to such Foreign Clearing Agency
pursuant to the terms of this Agreement.
(d) Upon any such exchange of all or a portion of the Global
Certificate for a Definitive Euro-Certificate or Certificates, such Global
Certificate shall be endorsed by or on behalf of the Trustee to reflect the
reduction of its principal amount by an amount equal to the aggregate principal
amount of such Definitive Euro-Certificate or Certificates. Until so exchanged
in full, such Global Certificate shall in all respects be entitled to the same
benefits under this Agreement as Definitive Euro-Certificates authenticated and
delivered hereunder except that the beneficial owners of such Global Certificate
shall not be entitled to receive payments of interest on the Certificates until
they have exchanged their beneficial interests in such Global Certificate for
Definitive Euro-Certificates.
SECTION 6.12. Meetings of Certificateholders. (a) Notice of any
meeting of Investor Certificateholders, setting forth the time and place of such
meeting and in general terms
58
the action proposed to be taken at such meeting, shall be given in accordance
with Section 13.5, the first mailing and publication to be not less than 20 nor
more than 180 days prior to the date fixed for the meeting. To be entitled to
vote at any meeting of Investor Certificateholders a Person shall be (i) a
Holder of one or more Investor Certificates of the applicable Series or Class or
(ii) a Person appointed by an instrument in writing as proxy by the Holder of
one or more such Investor Certificates. The only Persons who shall be entitled
to be present or to speak at any meeting of Investor Certificateholders shall be
the Persons entitled to vote at such meeting and their counsel and any
representatives of the Seller, the Servicer and the Trustee and their respective
counsel.
(b) At a meeting of Investor Certificateholders, Persons entitled
to vote Investor Certificates evidencing a majority of the aggregate unpaid
principal amount of the applicable Series or Class or all outstanding Series, as
the case may be, shall constitute a quorum. No business shall be transacted in
the absence of a quorum, unless a quorum is present when the meeting is called
to order. In the absence of a quorum at any such meeting, the meeting may be
adjourned for a period of not less than 10 days; in the absence of a quorum at
any such adjourned meeting, such adjourned meeting may be further adjourned for
a period of not less than 10 days; at the reconvening of any meeting further
adjourned for lack of a quorum, the Persons entitled to vote Investor
Certificates evidencing at least 25% of the aggregate unpaid principal amount of
the applicable Series or Class or all outstanding Series, as the case may be,
shall constitute a quorum for the taking of any action set forth in the notice
of the original meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided above except that such notice must be given not less
than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage of the aggregate principal amount of the outstanding
applicable Investor Certificates which shall constitute a quorum.
(c) Any Investor Certificateholder who has executed an instrument
in writing appointing a person as proxy shall be deemed to be present for the
purposes of determining a quorum and be deemed to have voted; provided that such
Investor Certificateholder shall be considered as present or voting only with
respect to the matters covered by such instrument in writing. Subject to the
provisions of Section 13.1, any resolution passed or decision taken at any
meeting of Investor Certificateholders duly held in accordance with this Section
shall be binding on all Investor Certificateholders whether or not present or
represented at the meeting.
(d) The Trustee shall appoint a temporary chairman of the meeting.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Holders of Investor Certificates evidencing a majority of the
aggregate unpaid principal amount of Investor Certificates of the applicable
Series or Class or all outstanding Series, as the case may be, represented at
the meeting. No vote shall be cast or counted at any meeting in respect of any
Investors Certificate challenged as not outstanding and ruled by the chairman of
the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote except as an Investor Certificateholder or proxy. Any meeting of
Investor Certificateholders duly called at which a quorum is present may be
adjourned from time to time, and the meeting may be held as so adjourned without
further notice.
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(e) The vote upon any resolution submitted to any meeting of
Investor Certificateholders shall be by written ballot on which shall be
subscribed the signatures of Investor Certificateholders or proxies and on which
shall be inscribed the serial number or numbers of the Investor Certificates
held or represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Investor
Certificateholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was published as provided above. The record shall be
signed and verified by the permanent chairman and secretary of the meeting and
one of the duplicates shall be delivered to the Servicer and the other to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE VII
Other Matters Relating
to the Seller
SECTION 7.1. Liability of the Seller. The Seller shall be liable for
all obligations, covenants, representations and warranties of the Seller arising
under or related to this Agreement. Except as provided in the preceding
sentence, the Seller shall be liable only to the extent of the obligations
specifically undertaken by it in its capacity as Seller hereunder.
SECTION 7.2. Limitation on Liability of the Seller. Subject to
Sections 7.1, 7.3 and 7.4, neither the Seller, any of its partners, employees or
agents, nor any of the shareholders, directors, officers, employees or agents of
such partners in its capacity as Seller shall be under any liability to the
Trust, the Trustee, the Certificateholders or any other Person for any action
taken or for refraining from the taking of any action in the capacity as Seller
pursuant to this Agreement whether arising from express or implied duties under
this Agreement; provided, however, that this provision shall not protect the
Seller or any such Person against any liability which would otherwise be imposed
by reason of wilful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Seller and any of its partners and any director or officer
or employee or agent of the Seller or any of its partners may rely in good faith
on any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder.
SECTION 7.3. Seller Indemnification of the Trust and the Trustee.
The Seller shall indemnify and hold harmless the Trust, for the benefit of the
Certificateholders and the other Beneficiaries, and the Trustee, from and
against any loss, liability, expense, damage or injury suffered or sustained by
reason of any acts, omissions or alleged acts or omissions arising out of
activities of the Trust or the Trustee pursuant to this Agreement, including any
judgment, award, settlement, reasonable attorneys' fees and other costs or
expenses incurred in connection
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with the defense of any actual or threatened action, proceeding or claim;
provided, however, that the Seller shall not indemnify the Trust or the Trustee
if such acts, omissions or alleged acts or omissions constitute fraud, gross
negligence, breach of fiduciary duty or wilful misconduct by the Trustee; and
provided further that the Seller shall not indemnify the Trust, Trustee or the
Certificateholders or any other Beneficiaries for any liabilities, cost or
expense of the Trust with respect to any action taken by the Trustee at the
request of any Certificateholders or other Beneficiaries to the extent the
Trustee is fully indemnified by such Certificateholders or other Beneficiaries
with respect to such action and such action is inconsistent with their rights
hereunder or with respect to any Federal, state or local income or franchise
taxes (or any interest or penalties with respect thereto) required to be paid by
the Trust or any Certificateholder or other Beneficiary in connection herewith
to any taxing authority. Subject to Section 7.1, any indemnification pursuant to
this Section shall only be from (i) the excess of the Seller's Interest for any
date of determination over the Required Participation Amount as of such date and
(ii) any other assets of the Seller not pledged to third parties or otherwise
encumbered in a manner permitted by the Seller's agreement of limited
partnership and shall only be made after payment in full of any amounts that the
Seller is obligated to deposit in the Collection Account pursuant to this
Agreement. Any indemnification under this Article VII shall survive the
resignation or removal of the Trustee and the termination of this Agreement.
SECTION 7.4. Liabilities. Notwithstanding anything to the contrary
in this Agreement, the Seller by entering into this Agreement, and any holder of
any interest in the Seller's Certificate by its acceptance thereof, agree to be
liable, directly to the injured party, for the entire amount of any losses,
claims, damages or liabilities (other than those incurred by an Investor
Certificateholder in its capacity as an Investor Certificateholder) arising out
of or based on the arrangement created by this Agreement or the actions of
Servicer taken pursuant hereto (to the extent Trust Assets remaining after the
Investor Certificateholders and Enhancement Providers, if any, have been paid in
full are insufficient to pay any such losses, claims, damages or liabilities) as
though this Agreement created a partnership under the Delaware Revised Uniform
Partnership Act in which Seller and such holder of the Seller's Certificate were
general partners.
ARTICLE VIII
Other Matters Relating to the Servicer
SECTION 8.1. Liability of the Servicer. The Servicer shall be liable
under this Article VIII only to the extent of the obligations specifically
undertaken by the Servicer in its capacity as Servicer.
SECTION 8.2. Merger or Consolidation of, or Assumption of, the
Obligations of the Servicer. The Servicer shall not consolidate with or merge
with any other Person or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(a) the Person formed by such consolidation or with which
the Servicer is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Servicer substantially as
an entirety shall be a Person organized and existing under the laws
of the United States of America or any
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State or the District of Columbia and, if the Servicer is not the
surviving entity, such Person shall assume, without the execution or
filing of any paper or any further act on the part of any of the
parties hereto, the performance of every covenant and obligation of
the Servicer hereunder, and upon compliance with paragraph (b) below
such Person shall be the Servicer; and
(b) the Servicer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance or transfer comply with this
Section 8.2 and that all conditions provided for in paragraph (a)
relating to such transaction have been complied with.
Neither this Section 8.2 nor any other part of this Agreement shall
prevent or limit the sale or other transfer of shares of stock of DFS.
The Servicer (if DFS) shall notify the Rating Agencies promptly in
the event that DFS ceases to be a wholly-owned indirect subsidiary of Deutsche
Bank AG.
SECTION 8.3. Limitation on Liability of the Servicer and Others.
Except as provided in Sections 8.1 and 8.4, neither the Servicer nor any of the
directors or officers or employees or agents of the Servicer, shall be under any
liability to the Trust, the Trustee, the Certificateholders or any other Person
for any action taken or for refraining from the taking of any action in its
capacity as Servicer pursuant to this Agreement; provided, however, that this
provision shall not protect the Servicer or any such person against any
liability which would otherwise be imposed by reason of wilful misfeasance, bad
faith or negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder. The Servicer and any director or
officer or employee or agent of the Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Receivables in accordance with this
Agreement which in its reasonable opinion may involve it in any expense or
liability.
SECTION 8.4. Servicer Indemnification of the Trust and the Trustee.
The Servicer shall indemnify and hold harmless the Trust, for the benefit of the
Certificateholders and the other Beneficiaries, and the Trustee, from the
Servicer's own funds, from and against any loss, liability, expense, damage or
injury suffered or sustained by reason of any acts, omissions or alleged acts or
omissions arising out of activities of the Servicer, the Trust or the Trustee
pursuant to this Agreement, including any judgment, award, settlement,
reasonable attorneys' fees and other costs or expenses incurred in connection
with the defense of any actual or threatened action, proceeding or claim;
provided, however, that the Servicer shall not indemnify the Trust or the
Trustee if such acts, omissions or alleged acts or omissions constitute fraud,
gross negligence, breach of fiduciary duty or wilful misconduct by the Trustee;
and provided, further that the Servicer shall not indemnify the Trust, the
Trustee or the Certificateholders or the other Beneficiaries (i) for any
liabilities, cost or expense of the Trust with respect to any action taken by
the Trustee at the request of the Certificateholders or any other Beneficiaries
to the extent the Trustee is fully indemnified by such Certificateholders or
other Beneficiaries with
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respect to such action or (ii) with respect to any Federal, state or local
income or franchise taxes (or any interest or penalties with respect thereto)
required to be paid by the Trust or the Certificateholders or the other
Beneficiaries in connection herewith to any taxing authority or (iii) for any
loss due to the financial inability of any Dealer to make payments on or with
respect to any Receivable. Any indemnification under this Article VIII shall
survive the termination of this Agreement and the resignation and removal of the
Trustee.
SECTION 8.5. The Servicer Not to Resign. The Servicer shall not
resign from the obligations and duties hereby imposed on it except upon
determination that (a) the performance of its duties hereunder is no longer
permissible under applicable law and (b) there is no reasonable action which the
Servicer could take to make the performance of its duties hereunder permissible
under applicable law. Any such determination permitting the resignation of the
Servicer shall be evidenced as to clause (a) above by an Opinion of Counsel to
such effect delivered to the Trustee. No such resignation shall become effective
until the Trustee or a Successor Servicer shall have assumed the
responsibilities and obligations of the Servicer in accordance with Section 10.2
hereof. If the Trustee is unable within 120 days of the date of such
determination to appoint a Successor Servicer, the Trustee shall serve as
Successor Servicer hereunder.
SECTION 8.6. Access to Certain Documentation and Information
Regarding the Receivables. The Servicer shall provide to the Trustee access to
the documentation regarding the Accounts and the Receivables in such cases where
the Trustee is required in connection with the enforcement of the rights of the
Certificateholders, or by applicable statutes or regulations, to review such
documentation, such access being afforded without charge but only (a) upon
reasonable request, (b) during normal business hours, (c) subject to the
Servicer's normal security and confidentiality procedures and (d) at offices
designated by the Servicer. Nothing in this Section 8.6 shall derogate from the
obligation of the Seller, the Trustee or the Servicer to observe any applicable
law prohibiting disclosure of information regarding the Dealers and the failure
of the Servicer to provide access as provided in this Section 8.6 as a result of
such obligation shall not constitute a breach of this Section 8.6.
SECTION 8.7. Delegation of Duties. Subject to Section 3.1, in the
ordinary course of business, the Servicer may at any time delegate any duties
hereunder to any Person who agrees to conduct such duties in accordance with the
Financing Guidelines (or, in the case of a Successor Servicer, the servicing
standards required hereunder) and this Agreement. The Servicer shall give prompt
written notice of any such delegation of a material function to the Rating
Agencies, any Agent and any Enhancement Providers. Such delegation shall not
relieve the Servicer of its liability and responsibility with respect to such
duties, and shall not constitute a resignation within the meaning of Section 8.5
and the Rating Agency Condition shall have been satisfied with respect to such
delegation prior to such delegation.
SECTION 8.8. Examination of Records. The Seller and the Servicer
shall indicate generally in its computer files or other records that the
Receivables arising in the Accounts have been conveyed to the Trust pursuant to
this Agreement for the benefit of the Certificateholders and the other
Beneficiaries. The Seller and the Servicer shall, prior to the sale or transfer
to a third party of any receivable held in its custody, examine its computer and
other records to determine that such receivable is not a Receivable.
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SECTION 8.9. Custodial Arrangements. (a) The Servicer shall maintain
custody of all documents, instruments or records that evidence or relate to
Receivables as custodian for the benefit of the Trustee and the Investor
Certificateholders. The Trustee shall have no responsibility or liability for
any acts or omissions or any negligence or wilful misconduct of the Servicer as
such custodian.
(b) In performing its duties under this Section 8.9, the Servicer
agrees to act with that degree of skill and care that it exercises with respect
to similar documents, instruments or records that evidence or relate to
receivables owned or serviced by it.
ARTICLE IX
Early Amortization Events
SECTION 9.1. Early Amortization Events. If any one of the following
events shall occur:
(a) a failure by the Seller to convey Receivables in
Additional Accounts to the Trust within five Business Days after the
day on which it is required to convey such Receivables pursuant to
this Agreement; or
(b) any Specified Party shall file a petition commencing a
voluntary case under any chapter of the Federal bankruptcy laws; or
any Specified Party shall file a petition or answer or consent
seeking reorganization, arrangement, adjustment, or composition
under any other similar applicable Federal law, or shall consent to
the filing of any such petition, answer, or consent; or any
Specified Party shall appoint, or consent to the appointment of, a
custodian, receiver, liquidator, trustee, assignee, sequestrator or
other similar official in bankruptcy or insolvency or receivership
of it or of any substantial part of its property; or any Specified
Party shall make an assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts generally as
they become due; or
(c) any order for relief against any Specified Party shall
have been entered by a court having jurisdiction in the premises
under any chapter of the Federal bankruptcy laws, and such order
shall have continued undischarged or unstayed for a period of 60
days; or a decree or order by a court having jurisdiction in the
premises shall have been entered approving as properly filed a
petition seeking reorganization, arrangement, adjustment, or
composition of any Specified Party under any other similar
applicable Federal law, and such decree or order shall have
continued undischarged or unstayed for a period of 120 days; or a
decree or order of a court having jurisdiction in the premises for
the appointment of a custodian, receiver, liquidator, trustee,
assignee, sequestrator, or other similar official in bankruptcy or
insolvency or receivership of any Specified Party or of any
substantial part of its property or for the winding up or
liquidation of its affairs, shall have been entered, and such decree
or order shall have remained in force undischarged or unstayed for a
period of 120 days; or
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(d) failure on the part of the Seller, the Servicer or DFS,
as applicable, (i) to make any payment or deposit (including any
Transfer Deposit Amount or Adjustment Payment) required by the terms
of this Agreement or the Receivables Contribution and Sale Agreement
on or before the date occurring five Business Days after the date
such payment or deposit is required to be made, or (ii) with respect
to any Series, to deliver a Distribution Date Statement within ten
Business Days after notice from the Trustee of such failure to
deliver such Distribution Date Statement, or (iii) in the case of
the Seller duly to observe or perform in any material respect the
covenant of the Seller set forth in Section 2.6(a) with respect to a
Receivable, which failure, in the case of this clause (iii), has a
material adverse effect on the interests of the Holders of the
Investor Certificates and continues unremedied for a period of 60
days after the date on which notice of such failure, requiring the
same to be remedied, shall have been given to the Seller by the
Trustee or any Enhancement Provider; provided, however, that an
Early Amortization Event pursuant to this clause (iii) shall not be
deemed to have occurred if the Seller shall have repurchased the
related Receivables or, if applicable, all of the Receivables during
such period in accordance with the provisions of this Agreement; or
(iv) duly to observe or perform in any material respect any other
covenants or agreements of the Seller or the Servicer or DFS, as the
case may be, set forth in this Agreement or the Receivables
Contribution and Sale Agreement, which failure in the case of this
clause (iv) has a material adverse effect on the interests of the
Holders of the Investor Certificates and continues unremedied for a
period of 45 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to
the Seller and the Servicer by the Trustee or to the Seller and the
Servicer and the Trustee by any Enhancement Provider; or
(e) any representation or warranty made by DFS in the
Receivables Contribution and Sale Agreement or the Seller in this
Agreement or any information contained in a computer file or
microfiche or written list required to be delivered by the Seller
pursuant to Section 2.1, 2.5, 2.7 or 2.8, (i) shall prove to have
been incorrect in any material respect when made or when delivered,
and shall continue to be incorrect in any material respect for a
period of 60 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to
the Seller by the Trustee and (ii) as a result of such incorrectness
the interests of the Holders of the Investor Certificates are
materially and adversely affected (excluding, however, the
representation and warranty made by the Seller pursuant to Section
2.3(j) if this Agreement constitutes the grant of a perfected
security interest in the Receivables and the Collateral Security and
the proceeds thereof under the UCC as then in effect; provided,
however, that an Early Amortization Event shall not be deemed to
have occurred under this paragraph if the Seller has repurchased the
related Receivable or all such Receivables, if applicable, during
such period in accordance with the provisions of this Agreement; or
(f) the Trust or the Seller shall become an "investment
company" within the meaning of the Investment Company Act;
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then, subject to applicable law, and after the applicable grace
period, if any, an amortization event (an "Early Amortization
Event") shall occur without any notice or other action on the part
of the Trustee, any Agent, the Certificateholders or any other
Beneficiary, immediately upon the occurrence of such event.
SECTION 9.2. Additional Rights Upon the Occurrence of Certain
Events. (a) If an Insolvency Event occurs with respect to the Seller or the
Seller violates Section 2.6(a) for any reason, the Seller shall on the day such
Insolvency Event or violation occurs (the "Appointment Date") immediately cease
to transfer Receivables to the Trust and shall promptly give notice to the
Trustee of such Insolvency Event or violation and the Trust shall be deemed to
have terminated, subject to the liquidation, winding up and dissolution
procedures described below. Notwithstanding any cessation of the transfer to the
Trust of additional Receivables, Receivables transferred to the Trust prior to
the occurrence of such Insolvency Event or violation and Collections in respect
of such Receivables whenever created or accrued in respect of such Receivables,
shall continue to be a part of the Trust. Within 15 days of the date on which
the Trustee receives notice from the Seller of the Appointment Date, the Trustee
shall (i) publish a notice in an Authorized Newspaper that an Insolvency Event
or violation has occurred and that the Trustee intends to sell, dispose of or
otherwise liquidate the Receivables on commercially reasonable terms and in a
commercially reasonable manner and (ii) give notice to Investor
Certificateholders describing the provisions of this Section and requesting
instructions from such Holders. Unless the Trustee shall have received
instructions within 90 days from the date notice pursuant to clause (ii) above
is first given from (x) Holders of Investor Certificates evidencing more than
50% of the aggregate outstanding principal amount of each Series or, with
respect to any Series with two or more Classes, of each Class, to the effect
that such Investor Certificateholders disapprove of such sale, disposition or
liquidation of the Receivables and wish to continue having Receivables
transferred to the Trust as before such Insolvency Event or violation, and (y)
each Holder of a Supplemental Certificate to such effect, then the Trustee shall
promptly sell, dispose of or otherwise liquidate the Receivables, or cause to be
sold, disposed of or otherwise liquidated, in a commercially reasonable manner
and on commercially reasonable terms, which shall include the solicitation of
competitive bids, provided that if such sale, disposition or liquidation is
being made solely on account of the Seller's violation of Section 2.6(a), then
the Trustee shall effect such sale, disposition or liquidation, or cause such
sale, disposition or liquidation to be effected, only if the net proceeds of
such sale, disposition or liquidation, applied in accordance with Section
9.2(b), shall be sufficient to pay accrued and unpaid interest on each Series of
Certificates plus the excess of the outstanding principal balance of each Series
of Certificates over the unreimbursed investor charge-offs, if applicable, for
such Series. The Trustee may obtain and conclusively rely upon a prior
determination from any applicable conservator, receiver or liquidator that the
terms and manner of any proposed sale, disposition or liquidation are
commercially reasonable. The provisions of Sections 9.1 and 9.2 shall not be
deemed to be mutually exclusive.
(b) The proceeds from the sale, disposition or liquidation of the
Receivables pursuant to paragraph (a), net of all reasonable expenses incurred
by the Trustee in connection with such sale, liquidation or other disposition,
which shall be paid to the Trustee from such proceeds ("Insolvency Proceeds")
shall be immediately deposited in the Collection Account. The Trustee shall
determine conclusively the amount of the Insolvency Proceeds which are deemed to
be Non-Principal Receivables and Principal Receivables. The Insolvency Proceeds
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shall be allocated and distributed to Investor Certificateholders in accordance
with Article IV and the terms of each Supplement and the Trust shall terminate
immediately thereafter.
ARTICLE X
Servicer Defaults
SECTION 10.1. Servicer Defaults. If any one of the following events
(a "Servicer Default") shall occur and be continuing with respect to the
Servicer:
(a) any failure by the Servicer to make any payment, transfer or
deposit or to give instructions or to give notice to the Trustee to make any
payment, transfer or deposit or to take any action under any Enhancement
Agreement on or before the date such payment, transfer or deposit or such
instruction or notice is required to be made or given, as the case may be, under
the terms of this Agreement, which failure is not cured within five Business
Days after notice of such failure from the Trustee to the Servicer;
(b) failure on the part of the Servicer duly to observe or perform
its covenant not to create any Lien on any Receivable which failure has a
material adverse effect on the Certificateholders and which continues unremedied
for a period of sixty (60) days after written notice to it of such failure;
provided, however, that a "Servicer Default" shall not be deemed to have
occurred if the Seller or the Servicer shall have repurchased the related
Receivables or, if applicable, all of the Receivables during such period in
accordance with the provisions of this Agreement;
(c) failure on the part of the Servicer duly to observe or perform
any covenants or agreements of the Servicer set forth in this Agreement (other
than with respect to those specified in clause (a) or (b) above and with respect
to clauses (viii), (ix) and (x) under Section 3.3(a) hereof, to the extent the
terms of Section 3.3(c) hereof have been complied with) which failure has a
material adverse effect on the Certificateholders and which continues unremedied
for a period of thirty (30) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Trustee;
(d) any representation, warranty or certification made by the
Servicer in this Agreement or in any certificate delivered pursuant to this
Agreement shall prove to have been incorrect when made, which has a material
adverse effect on the rights of the Investor Certificateholders of any Series
and which material adverse effect continues for a period of 60 days after the
date on which written notice thereof, requiring the same to be remedied, shall
have been given to the Servicer by the Trustee; provided, however, that a
"Servicer Default" shall not be deemed to have occurred if the Seller or the
Servicer shall have repurchased the related Receivables or, if applicable, all
of such Receivables during such period in accordance with the provisions of this
Agreement;
(e) the Servicer shall consent to the appointment of a conservator
or receiver or liquidator or other similar official in any bankruptcy,
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to the Servicer or of or relating to all or
substantially all of its property, or a decree or order of a court or agency or
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supervisory authority having jurisdiction in the premises for the appointment of
a conservator or receiver or liquidator or other similar official in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty days; or the
Servicer shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable bankruptcy,
insolvency or reorganization statute, make any assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations;
then, in the event of any Servicer Default, so long as the Servicer Default
shall not have been remedied, the Trustee, by notice then given in writing to
the Servicer (a "Termination Notice"), may terminate all but not less than all
of the rights and obligations (other than its obligations that have accrued up
to the time of such termination) of the Servicer as Servicer under this
Agreement and in and to the Receivables and the proceeds thereof. After receipt
by the Servicer of a Termination Notice, and on the date that a Successor
Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all
authority and power of the Servicer under this Agreement shall pass to and be
vested in a Successor Servicer (a "Service Transfer") and, without limitation,
the Trustee is hereby authorized and empowered (upon the failure of the Servicer
to cooperate) to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, all documents and other instruments upon the
failure of the Servicer to execute or deliver such documents or instruments, and
to do and accomplish all other acts or things necessary or appropriate to effect
the purposes of such Service Transfer; provided that in no event shall the
Servicer incur any liability for any such action by the Trustee. The Servicer
agrees to cooperate with the Trustee and such Successor Servicer in effecting
the termination of the responsibilities and rights of the Servicer to conduct
servicing hereunder, including the transfer to such Successor Servicer of all
authority of the Servicer to service the Receivables provided for under this
Agreement, including all authority over all Collections which shall on the date
of transfer be held by the Servicer for deposit, or which have been deposited by
the Servicer, in the Collection Account, or which shall thereafter be received
with respect to the Receivables, and in assisting the Successor Servicer. The
Servicer shall promptly transfer its electronic records relating to the
Receivables to the Successor Servicer in such electronic form as the Successor
Servicer may reasonably request and shall promptly transfer to the Successor
Servicer all other records, correspondence and documents necessary for the
continued servicing of the Receivables in the manner and at such times as the
Successor Servicer shall reasonably request. To the extent that compliance with
this Section 10.1 shall require the Servicer to disclose to the Successor
Servicer information of any kind which the Servicer reasonably deems to be
confidential, the Successor Servicer shall be required to enter into such
customary licensing and confidentiality agreements as the Servicer shall deem
necessary to protect its interest.
Notwithstanding the foregoing, a delay in or failure of performance
under Section 10.1(a) for a period of 10 Business Days or under Section 10.1(b),
(c) or (d) for a period of 60 Business Days, shall not constitute a Servicer
Default if such delay or failure could not be prevented by the exercise of
reasonable diligence by the Servicer and such delay or failure was caused by an
act of God or the public enemy, acts of declared or undeclared war, public
disorder, rebellion or sabotage, epidemics, landslides, lightning, fire,
hurricanes, earthquakes, floods or similar causes. The preceding sentence shall
not relieve the Servicer from using its best efforts to perform its obligations
in a timely manner in accordance with the terms of this Agreement,
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and the Servicer shall provide the Trustee, any Agents, any Enhancement
Providers, the Seller and the Certificateholders with an Officers' Certificate
giving prompt notice of such failure or delay by it, together with a description
of its efforts so to perform its obligations. The Servicer shall immediately
notify the Trustee in writing of any Servicer Default.
SECTION 10.2. Trustee to Act; Appointment of Successor. (a) On and
after the receipt by the Servicer of a Termination Notice pursuant to Section
10.1, the Servicer shall continue to perform all servicing functions under this
Agreement until the date specified in the Termination Notice or otherwise
specified by the Trustee in writing or, if no such date is specified in such
Termination Notice, or as otherwise specified by the Trustee, until a date
mutually agreed upon by the Servicer and Trustee. The Trustee shall as promptly
as possible after the giving of a Termination Notice appoint an Eligible
Servicer as a successor servicer (the "Successor Servicer"), subject to the
consent of any Enhancement Providers and any Agents, which consent shall not be
unreasonably withheld, and such Successor Servicer shall accept its appointment
by a written assumption in a form acceptable to the Trustee. In the event that a
Successor Servicer has not been appointed or has not accepted its appointment at
the time when the Servicer ceases to act as Servicer, the Trustee without
further action shall automatically be appointed the Successor Servicer. The
Trustee may delegate any of its servicing obligations to an affiliate or agent
in accordance with Sections 3.1 and 8.7. Notwithstanding the above, the Trustee
shall, if it is legally unable so to act, petition a court of competent
jurisdiction to appoint any established institution having a net worth of not
less than $100,000,000 and whose regular business includes the servicing of
wholesale receivables as the Successor Servicer hereunder. The Trustee shall
promptly give notice to the Rating Agencies, any Enhancement Providers, any
Agents and the Certificateholders upon the appointment of a Successor Servicer.
(b) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing functions
under this Agreement and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof (except that the Successor Servicer shall not be liable for
any liabilities incurred by the predecessor Servicer), and all references in
this Agreement to the Servicer shall be deemed to refer to the Successor
Servicer, except for references in Sections 3.3 (as it relates to the Initial
Servicer) and 8.4 (exclusive of indemnification for acts, omissions, alleged
acts and alleged omissions that constitute fraud, gross negligence, breach of
fiduciary duty or wilful misconduct by the Successor Servicer) and 11.5, which
shall continue to refer to the Initial Servicer. Any Successor Servicer, by its
acceptance of its appointment, shall automatically agree to be bound by the
terms and provisions of any Enhancement Agreement.
(c) In connection with any Termination Notice, the Trustee shall
review any bids which it obtains from Eligible Servicers and shall be permitted
to appoint any Eligible Servicer submitting such a bid as a Successor Servicer
for servicing compensation not in excess of the Servicing Fee (provided that if
all such bids exceed the Servicing Fee the Seller at its own expense shall pay
when due the amount of any compensation in excess of the Servicing Fee);
provided, however, that the Seller shall be responsible for payment of the
Seller's portion of the Servicing Fee as determined pursuant to this Agreement
and all other amounts in excess of the Investors' Servicing Fee, and that no
such monthly compensation paid out of Collections shall be in excess of the
Investors' Servicing Fee permitted to the Servicer. The Holders of the Seller's
Certificates agree that if DFS (or any Successor Servicer) is terminated as
Servicer hereunder,
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the portion of Collections to be paid to the Seller shall be reduced by an
amount sufficient to pay Seller's share of the compensation of the Successor
Servicer.
(d) All authority and power granted to the Successor Servicer
under this Agreement shall automatically cease and terminate upon termination of
the Trust pursuant to Section 12.1, and shall pass to and be vested in the
Seller and, without limitation, the Seller is hereby authorized and empowered to
execute and deliver, on behalf of the Successor Servicer, as attorney-in-fact or
otherwise, all documents and other instruments, and to do and accomplish all
other acts or things necessary or appropriate to effect the purposes of such
transfer of servicing rights. The Successor Servicer agrees to cooperate with
the Seller in effecting the termination of the responsibilities and rights of
the Successor Servicer to conduct servicing on the Receivables. The Successor
Servicer, at the expense of the Seller, shall transfer its electronic records
relating to the Receivables to the Seller in such electronic form as the Seller
may reasonably request and shall transfer all other records, correspondence and
documents to the Seller in the manner and at such times as the Seller shall
reasonably request. To the extent that compliance with this Section 10.2 shall
require the Successor Servicer to disclose to the Seller information of any kind
which the Successor Servicer deems to be confidential, the Seller shall be
required to enter into such customary licensing and confidentiality agreements
as the Successor Servicer shall deem necessary to protect its interests.
All reasonable costs and expenses (including attorneys' fees)
incurred in connection with transferring the Receivables and the other Trust
Assets to the Successor Servicer and amending this Agreement to reflect such
succession as Successor Servicer pursuant to this Article X shall be paid by the
Servicer (or, if the Trustee is the Successor Servicer, the initial Servicer)
upon presentation of reasonable documentation of such costs and expenses.
ARTICLE XI
The Trustee
SECTION 11.1. Duties of Trustee. (a) The Trustee, prior to the
occurrence of a Servicer Default of which a Responsible Officer of the Trustee
has knowledge and after the curing of all Servicer Defaults which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If a Servicer Default to the knowledge
of a Responsible Officer of the Trustee has occurred (which has not been cured
or waived), the Trustee shall exercise such of the rights and powers vested in
it by this Agreement and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
substantially conform to the requirements of this Agreement.
(c) Subject to Section 11.1(a), no provision of this Agreement
shall be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own wilful misconduct; provided,
however, that:
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(i) the Trustee shall not be personally liable for an error
of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(ii) the Trustee shall not be charged with knowledge of any
Servicer Default or the failure by the Servicer to comply with the
obligations of the Servicer referred to in Section 10.1(a) and (b)
unless a Responsible Officer of the Trustee obtains actual knowledge
of such failure;
(iii) the Trustee shall not be charged with knowledge of an
Early Amortization Event (or the related Early Amortization Period)
unless a Responsible Officer of the Trustee obtains actual knowledge
thereof;
(iv) the Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of the Holders of Investor
Certificates relating to the time, method or place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Agreement
or any Supplement; and
(v) prior to the occurrence of a Servicer Default of which a
Responsible Officer has knowledge, and after the curing or waiver of
such Servicer Defaults that may have occurred, the duties and
obligations of the Trustee shall be determined solely by the express
provisions of this Agreement and any Supplements, the Trustee shall
not be liable except for the performance of such duties and
obligations as shall be specifically set forth in this Agreement and
any Supplement, no implied covenants or obligations shall be read
into this Agreement or any Supplement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and, if specifically required
to be furnished pursuant to any provision of this Agreement or any
Supplement, conforming to the requirements of this Agreement or such
Supplement.
(d) The Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of, any
obligations of the Servicer under this Agreement except during such time, if
any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Servicer in accordance with the terms of
this Agreement. Notwithstanding the prior sentence, the Trustee when acting as
Successor Servicer, is still entitled to indemnification under Sections 7.3 and
8.4.
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(e) Except as expressly provided in this Agreement, the Trustee
shall have no power to vary the corpus of the Trust including the power to (i)
accept any substitute obligation for a Receivable initially assigned to the
Trust under Section 2.1 or 2.5, (ii) add any other investment, obligation or
security to the Trust or (iii) withdraw from the Trust any Receivables.
(f) In the event that the Transfer Agent and Registrar shall fail
to perform any obligation, duty or agreement in the manner or on the day
required to be performed by the Transfer Agent and Registrar, as the case may
be, under this Agreement, the Trustee shall be obligated promptly upon a
Responsible Officer of the Trustee obtaining actual knowledge of such failure to
perform such obligation, duty or agreement in the manner so required.
(g) If the Seller has agreed to transfer any of its wholesale
receivables (other than the Receivables) to another Person, then upon the
written request of the Seller, the Trustee shall enter into such intercreditor
agreements with the transferee of such receivables as are customary and
necessary to identify separately the rights of the Trustee and the Trust, on the
one hand, and such other Person, on the other hand, in the Seller's wholesale
receivables; provided, however, that the Trustee shall not be required to enter
into any intercreditor agreement which could, in the sole opinion of the
Trustee, adversely affect the interests of the Investor Certificateholders or
the Trustee and, upon the request of the Trustee, the Seller shall deliver an
Opinion of Counsel on any matters relating to such intercreditor agreement,
reasonably requested by the Trustee.
(h) Notwithstanding any other provision contained herein, the
Trustee is not acting as, and shall not be deemed to be, a fiduciary for any
Enhancement Provider in its capacity as such or as a Beneficiary, and the
Trustee's sole responsibility with respect to said parties shall be to perform
those duties with respect to said parties as are specifically set forth herein
and no implied duties or obligations shall be read into this Agreement against
the Trustee with respect to any such party.
SECTION 11.2. Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 11.01:
(a) the Trustee may rely on and shall be protected in acting on,
or in refraining from acting in accord with, any resolution, Officers'
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been signed or
presented to it pursuant to this Agreement by the proper party or parties;
(b) the Trustee may consult with counsel and any advice or Opinion
of Counsel shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(c) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation hereunder or in relation hereto, at the request, order or
direction of any of the Certificateholders, pursuant to the provisions of this
Agreement, unless such Certificateholders shall have offered to the Trustee
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reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; provided, however, that nothing
contained herein shall relieve the Trustee of the obligations, upon the
occurrence of a Servicer Default (which has not been cured or waived) of which a
Responsible Officer of the Trustee has knowledge, to exercise such of the rights
and powers vested in it by this Agreement or any Supplement, and to use the same
degree of care and skill in their exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs;
(d) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(e) the Trustee shall not be bound to make any investigation into
the facts of matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document believed by it to be genuine, unless requested so to do
by (i) Holders of Investor Certificates evidencing more than 25% of the
aggregate unpaid principal amount of all Investor Certificates (or, with respect
to any such matters that do not relate to all Series, 25% of the aggregate
unpaid principal amount of the Investor Certificates of all Series to which such
matters relate); provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation shall be, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of
this Agreement, the Trustee may require reasonable indemnity against such cost,
expense or liability as a condition to so proceeding. The reasonable expense of
every such examination shall be paid by the Servicer or, if paid by the Trustee,
shall be reimbursed by the Servicer upon demand;
(f) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys or a custodian, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent, attorney or custodian
appointed with due care by it hereunder;
(g) except as may be required by Section 11.1(a) hereof, the
Trustee shall not be required to make any initial or periodic examination of any
documents or records related to the Receivables or the Accounts for the purpose
of establishing the presence or absence of defects, the compliance by the Seller
with its representations and warranties or for any other purpose; and
(h) the right of the Trustee to perform any discretionary act
enumerated in this Agreement or any Supplement shall not be construed as a duty,
and the Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act.
SECTION 11.3. Trustee Not Liable for Recitals in Certificates. The
Trustee assumes no responsibility for the correctness of the recitals contained
herein and in the Certificates (other than the certificate of authentication on
the Certificates). Except as set forth in Section 11.14, the Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates (other than the certificate of authentication on the Certificates)
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or of any Receivable or related document or any security interest of the Trust
therein. The Trustee shall not be accountable for the use or application by the
Seller of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Seller in respect of the
Receivables or deposited in or withdrawn from the Collection Account or any
Series Account.
SECTION 11.4. Trustee May Own Certificates. Subject to compliance
with subsection (a)(4)(i) of Rule 3a-7 of the Investment Company Act: (x) the
Trustee in its individual or any other capacity may become the owner or pledgee
of Investor Certificates and (y) the Trustee in its individual or any other
capacity may deal with the Seller and Servicer in banking and other transactions
with the same rights as it would have if it were not the Trustee.
SECTION 11.5. The Servicer to Pay Trustee's Fees and Expenses. The
Servicer covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to receive, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) for all services rendered by it in the execution of the trust
hereby created and in the exercise and performance of any of the power and
duties hereunder of the Trustee, and, subject to Section 8.4, the Servicer shall
pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee accordance with any
of the provisions of this Agreement (including the reasonable fees and expenses
of its agents, any co-trustee and counsel) except any such expense, disbursement
or advance as may arise from its negligence or bad faith and except as provided
in the second following sentence. The Servicer's covenants to pay the expenses,
disbursements and advances provided for in the preceding sentence shall survive
the resignation or removal of the Trustee and the termination of this Agreement.
If the Trustee is appointed Successor Servicer pursuant to Section 10.2, the
provisions of this Section 11.5 shall not apply to expenses, disbursements and
advances made or incurred by the Trustee in its capacity as Successor Servicer,
which shall be covered out of the Servicing Fee; provided, however, if such
expenses, disbursements and advances incurred by the Trustee are in amount in
excess of the Servicing Fee, such excess amount shall be paid in full to the
Trustee by DFS. To the extent, if any, that any Federal, state or local taxes
are payable by the Trust, such taxes shall be payable solely out of Trust Assets
an not out of the personal assets of the Trustee.
SECTION 11.6. Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be a bank (a) organized and doing business under
the laws of the United States of America or any state thereof authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
Federal or state authority and (b) which is in compliance with subsection
(a)(4)(i) of Rule 3a-7 of the Investment Company Act. If such bank publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority then, for the purpose of
this Section 11.6, the combined capital and surplus of such bank shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 11.6, the Trustee
shall resign immediately in the manner and with the effect specified in Section
11.7.
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SECTION 11.7. Resignation or Removal of Trustee. (a) The Trustee may
at any time resign and be discharged from the trust hereby created by giving
written notice thereof to the Seller and the Servicer. Upon receiving such
notice of resignation, the Seller shall promptly appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
(b) The Servicer may remove the Trustee at any time and from time
to time by giving written notice of such removal to the Trustee if any of the
following events or circumstances occurs at any time (such notice to be sent at
least thirty days prior to the date of removal in the case of clause (vi)
below):
(i) the Trustee shall cease to be eligible in accordance
with Section 11.6 and shall fail to resign after written
request therefor by the Servicer; or
(ii) the Trustee shall be legally unable to act; or
(iii) the Trustee shall be adjudged a bankrupt or insolvent;
or
(iv) a receiver of the Trustee or of its property shall be
appointed; or
(v) any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation; or
(vi) the Trustee shall fail to perform, as determined by the
Servicer in its sole discretion, any of the Trustee's
duties or responsibilities under this Agreement or any
Supplement in a manner and at a cost that is
satisfactory to the Servicer.
The Servicer shall promptly appoint a successor trustee by written instrument,
in duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee.
(c) Any resignation or removal of the Trustee and appointment of
successor trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee as
provided in Section 11.8 hereof.
SECTION 11.8. Successor Trustee. (a) Any successor trustee appointed
as provided in Section 11.7 hereof shall execute, acknowledge and deliver to the
Seller and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee herein. The predecessor Trustee shall deliver to the successor
trustee all
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documents or copies thereof, at the expense of the Servicer, and statements held
by it hereunder; and the Seller and the predecessor Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor trustee all such
rights, power, duties and obligations. The Servicer shall immediately give
notice to each Rating Agency and the Certificateholders upon the appointment of
a successor trustee.
(b) No successor trustee shall accept appointment as provided in
this Section 11.8 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 11.6 hereof.
SECTION 11.9. Merger or Consolidation of Trustee. Any Person into
which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
all or substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such corporation shall be
eligible under the provisions of Section 11.6 hereof, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 11.10. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust may at the time be located, the Trustee shall have the power and
may execute and deliver all instruments to appoint one or more Persons to act as
a co-trustee or co-trustees, or separate trustee or separate trustees, of all or
any part of the Trust, and to vest in such Person or Persons, in such capacity
and for the benefit of the Certificateholders, such title to the Trust, or any
part thereof, and, subject to the other provisions of this Section 11.10, such
powers, duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
11.6 and no notice to Certificateholders of the appointment of any co-trustee or
separate trustee shall be required under Section 11.8 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the
Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to
be performed (whether as Trustee hereunder or as successor to the
Servicer hereunder), the Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
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(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article XI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee and a
copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 11.11. Tax Returns. In the event the Trust shall be required
to file tax returns, the Servicer shall prepare, or shall cause to be prepared,
and shall deliver, or shall cause to be delivered, to the Trustee no later than
five Business Days immediately preceding any applicable due date; the Trustee
shall promptly execute, to the extent it is the appropriate person to so
execute, file any such tax returns to be filed by the Trust and deliver such
executed returns to the Servicer, and such returns shall be filed by the
Servicer. The Servicer in accordance with the terms of the Supplements shall
also prepare or shall cause to be prepared all tax information required by law
to be distributed to the Investor Certificateholders. The Trustee shall
distribute or cause to be distributed such information to the Investor
Certificateholders. The Trustee, upon request, shall furnish the Servicer with
all such information known to the Trustee as may be reasonably required in
connection with the preparation of all tax returns of the Trust or in connection
with the distribution of tax information to the Investor Certificateholders.
SECTION 11.12. Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Certificateholders in respect of which such judgment has
been obtained.
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SECTION 11.13. Suits for Enforcement. If a Servicer Default shall
occur and be continuing, the Trustee, in its discretion may, subject to the
provisions of Section 10.1, proceed to protect and enforce its rights and the
rights of the Certificateholders under this Agreement by suit, action or
proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this Agreement or in aid
of the execution of any power granted in this Agreement or for the enforcement
of any other legal, equitable or other remedy as the Trustee, being advised by
counsel, shall deem most effectual to protect and enforce any of the rights of
the Trustee or the Certificateholders. Nothing herein contained shall be deemed
to authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Certificateholder any plan of reorganization, arrangement, adjustment or
composition affecting the Certificates or the rights of any Holder thereof, or
authorize the Trustee to vote in respect of the claim of any Certificateholder
in any such proceeding.
SECTION 11.14. Representations and Warranties of Trustee. The
Trustee represents and warrants that:
(i) the Trustee is a banking corporation organized, existing
and in good standing under the laws of the State of New York;
(ii) the Trustee has full power, authority and right to
execute, deliver and perform this Agreement, and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Agreement; and
(iii) this Agreement has been duly executed and delivered by
the Trustee.
SECTION 11.15. Maintenance of Office or Agency. The Trustee shall
maintain at its expense in the Borough of Manhattan, The City of New York, an
office or offices or agency or agencies where notices and demands to or upon the
Trustee in respect of the Certificates and this Agreement may be served. The
Trustee initially designates its Corporate Trust Office as its office such
purposes in New York. The Trustee shall give prompt written notice to the
Servicer and to Holders of the Certificates of a change in the location of the
Certificate Register or any such office or agency. So long as any of the
Certificates are listed on the Luxembourg Stock Exchange and such stock exchange
shall so require, the Trustee shall maintain an additional Paying Agent in
Luxembourg.
ARTICLE XII
Termination
SECTION 12.1. Termination of Trust. The Trust and the respective
obligations and responsibilities of the Seller, the Servicer and the Trustee
created hereby (other than the obligation of the Trustee to make payments to
Investor Certificateholders as hereafter set forth) shall terminate, except with
respect to the duties described in Sections 7.3, 8.4, 11.5 and 12.2(b), upon the
earlier of (i) December 31, 2014 (the "Final Maturity Date"), (ii) the day
following the Distribution Date on which the Invested Amount for all Series is
zero, but only if the Seller has notified the Trustee that it wishes the Trust
to terminate upon such event and (iii) the time
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provided in Section 9.2(b) (the "Trust Termination Date"). The Servicer shall
give the Rating Agencies prompt notice of the termination of the Trust.
SECTION 12.2. Final Distribution. (a) The Servicer shall give the
Trustee notice of the Distribution Date on which the Investor Certificateholders
of any Series or Class may surrender their Investor Certificates for payment of
the final distribution on and cancellation of such Investor Certificates
promptly after the Servicer has determined that a final distribution shall
occur. Such notice shall be accompanied by an Officer's Certificate setting
forth the information specified in Section 3.5 covering the period during the
then-current calendar year through the date of such notice. Upon at least one
Business Day's prior written notice by the Servicer, not later than the fifth
day of the month in which the final distribution in respect of such Series or
Class is payable to Investor Certificateholders, the Trustee shall provide
notice to Investor Certificateholders of such Series or Class specifying (i) the
date upon which final payment of such Series or Class shall be made upon
presentation and surrender of Investor Certificates of such Series or Class at
the office or offices therein designated, (ii) the amount of any such final
payment and (iii) that the Record Date otherwise applicable to such payment date
is not applicable, payments being made only upon presentation and surrender of
such Investor Certificates at the office or office therein specified. The
Trustee shall give such notice to the Transfer Agent and Registrar and the
Rating Agencies at the time such notice is given to Investor Certificateholders.
Notice of the final distribution with respect to any Class of
Certificates listed on the Luxembourg Stock Exchange (so long as the rules
thereof so require) shall be published by the Trustee once in an Authorized
European Newspaper.
(b) Notwithstanding a final distribution to the Investor
Certificateholders of any Series or Class (or the termination of the Trust),
except as otherwise provided in this paragraph, all funds then on deposit in the
Collection Account and any Series Account allocated to such Investor
Certificateholders shall continue to be held in trust for the benefit of such
Investor Certificateholders and the Trustee shall pay such funds to such
Investor Certificateholders upon surrender of their Investor Certificates (and
any excess shall be paid in accordance with the terms of any Enhancement
Agreement). In the event that all such Investor Certificateholders shall not
surrender their Investor Certificates for cancellation within six months after
the date specified in the notice from the Trustee described in paragraph (a),
the Trustee shall give a second notice to the remaining such Investor
Certificateholders to surrender their Investor Certificates for cancellation and
receive the final distribution with respect thereto. If within one year after
the second notice all such Investor Certificates shall not have been surrendered
for cancellation, the Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact the remaining such Investor
Certificateholders concerning surrender of their Investor Certificates, and the
cost thereof shall be paid out of the funds in the Collection Account or any
Series Account held for the benefit of such Investor Certificateholders. The
Trustee shall pay to the Seller any monies held by it for the payment of
principal or interest with respect to a Series that remain unclaimed for two
years after the date of the first notice of final distribution with respect to
such Series. After such payment to the Seller, Investor Certificateholders
entitled to the money must look to the Seller for payment as general creditors
unless an applicable abandoned property law designates another Person.
79
(c) In the event that the Invested Amount with respect to any
Series is greater than zero on its Termination Date (after giving effect to
deposits and distributions otherwise to be made on such Termination Date), the
Trustee shall sell or cause to be sold on such Termination Date Receivables (or
interests therein) in an amount equal to the sum of (i) the Invested Amount with
respect to such Series on such Termination Date (after giving effect to such
deposits and distributions) plus (ii) accrued and unpaid interest with respect
to such Series; provided, however, that in no event shall such amount exceed the
lesser of (x) such Series' Allocation Percentage (as defined in the Series
Supplements and for the Collection Period in which such Termination Date occurs)
of the aggregate unpaid balance of the Principal Receivables on such Termination
Date and (y) 110% of such Invested Amount. The proceeds, net of all reasonable
expenses incurred by the Trustee in connection with such sale, which shall be
paid to the Trustee from such proceeds (the "Termination Proceeds") from such
sale shall be immediately deposited into the Collection Account for the benefit
of the Investor Certificateholders of such Series. The Termination Proceeds
shall be allocated and distributed to the Investor Certificateholders of such
Series in accordance with the terms of the applicable Supplement.
SECTION 12.3. Seller's Termination Rights. Upon the termination of
the Trust pursuant to Section 12.1, and the surrender of the Seller's
Certificates the Trustee shall sell, assign and convey to the Seller or its
designee, without recourse, representation or warranty, all right, title and
interest of the Trust in the Receivables, whether then existing or thereafter
created, all Collateral Security with respect thereto, all monies due or to
become due and all amounts received with respect thereto and all proceeds
thereof, except for amounts held by the Trustee pursuant to Section 12.2(b), and
all of the Seller's rights, remedies, powers and privileges with respect to such
Receivables under the Receivables Contribution and Sale Agreement. The Trustee
shall execute and deliver such instruments of transfer and assignment, in each
case without recourse, representation or warranty, as shall be reasonably
requested by the Seller to vest in the Seller or its designee all right, title
and interest which the Trust had in all such property.
ARTICLE XIII
Miscellaneous Provisions
SECTION 13.1. Amendment. (a) This Agreement or any Supplement may be
amended from time to time (including in connection with the issuance of a
Supplemental Certificate) by the Servicer, the Seller and the Trustee without
the consent of any of the Certificateholders, but with prior notice to each
Rating Agency, provided that such amendment shall not, as evidenced by an
Officer's Certificate of the Seller, addressed and delivered to the Trustee,
adversely affect in any material respect the interests of any Investor
Certificateholder. In addition, this Agreement and any Supplement may be amended
by the Servicer and the Trustee at the direction of the Seller without the
consent of any of the Certificateholders: (1) to add, modify or eliminate such
provisions as may be necessary or advisable in order to enable the Seller or any
of its Affiliates (including Deutsche Bank AG) to minimize or avoid capital
charges under any applicable law, rule, regulation or guideline relating to
regulatory or risk-based capital, or (2) to enable all or a portion of the Trust
to qualify as a partnership for federal income tax purposes under applicable
regulations on the classification of entities as partnerships or
80
corporations under the Internal Revenue Code, and to the extent that such
regulations eliminate or modify the need therefor, to modify or eliminate
existing provisions of this Agreement or any Supplement relating to the intended
availability of partnership treatment of the Trust for federal income tax
purposes, or (3) to enable all or a portion of the Trust to qualify as, and to
permit an election to be made to cause the Trust to be treated as, a "financial
asset securitization investment trust," as described in the provisions of the
"Small Business Job Protection Act of 1996," H.R. 3448 (and, in connection with
any such election, to modify or eliminate existing provisions of this Agreement
or any Supplement relating to the intended Federal income tax treatment of the
Certificates and the Trust in the absence of such election, which may include
elimination of the sale of Receivables, upon the occurrence of an insolvency
event with respect to Seller, pursuant to the Agreement and certain provisions
of the Agreement relating to the liability of the Seller), or (4) to enable the
Seller or any of its Affiliates to comply with or obtain more favorable
treatment under any law or regulation or any accounting rule or principle, so
long as in each case the Rating Agency Condition has been satisfied and, in the
case of (2) or (3), the Seller and the Trustee have received an Opinion of
Counsel to the effect that such amendment shall not adversely affect the
characterization of the Investor Certificates of any outstanding Series or Class
as debt or as interests in a partnership. Notwithstanding anything contained
herein to the contrary, the Trustee, with the consent of any Enhancement
Providers, may at any time and from time to time amend, modify or supplement the
form of Distribution Date Statement. Notwithstanding anything contained herein
to the contrary, this Agreement or any Supplement may be amended from time to
time by the Servicer, the Seller and the Trustee without the consent of any of
the Certificateholders, but only upon satisfaction of the Rating Agency
Condition, to change in any manner the treatment of Delayed Funding Receivables
under this Agreement or any such Supplement. In addition, this Agreement or any
Supplement may be amended from time to time by the Seller, the Servicer and the
Trustee, without the consent of any Certificateholder, in order to make changes
required in order to obtain a listing of any Class of any Series on the
Luxembourg Stock Exchange.
(b) In the event that Section 13.1(a) is not then applicable, this
Agreement or any Supplement may be amended from time to time (including in
connection with the issuance of a Supplemental Certificate) by the Servicer, the
Seller and the Trustee, with the consent of the Holders of Investor Certificates
evidencing more than 50% of the aggregate unpaid principal amount of the
Investor Certificates of all adversely affected Series and with prior notice to
each Rating Agency, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or any
Supplement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, any distributions required to be made to any
Investor Certificateholders or deposits of amounts to be so distributed or the
amount available under any Enhancement without the consent of each affected
Investor Certificateholder, (ii) change the definition of or the manner of
calculating the interest of any Investor Certificateholder without the consent
of each affected Investor Certificateholder, (iii) reduce the aforesaid
percentage required to consent to any such amendment without the consent of each
Investor Certificateholder or (iv) adversely affect the rating of any Series or
Class by any Rating Agency without the consent of all of the Holders of the
Investor Certificates of such Series or Class. Any amendment to be effected
pursuant to this paragraph shall be deemed to adversely affect all outstanding
Series, other than any Series with respect to which such action shall not, as
evidenced by an Officer's Certificate of the Seller, addressed and delivered to
the
81
Trustee, adversely affect in any material respect the interests of any Investor
Certificateholder of such Series. The Trustee may, but shall not be obligated
to, enter into any such amendment which affects the Trustee's rights, duties or
immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent
(other than an amendment pursuant to paragraph (a)), the Trustee shall furnish
notification of the substance of such amendment to each Investor
Certificateholder, and the Servicer shall furnish notification of the substance
of such amendment to each Rating Agency, each Agent and each Enhancement
Provider.
(d) It shall not be necessary for the consent of Investor
Certificateholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Investor Certificateholders shall be
subject to such reasonable requirements as the Trustee may prescribe.
(e) Notwithstanding anything in this Section to the contrary, no
amendment may be made to this Agreement or any Supplement which would adversely
affect in any material respect the interests of any Enhancement Provider without
the written consent of such Enhancement Provider.
(f) Any Supplement executed in accordance with the provisions of
Section 6.3 shall not be considered an amendment to this Agreement for the
purposes of this Section.
(g) Prior to the execution of any amendment to this Agreement, the
Trustee shall be entitled to receive and rely upon (i) an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement and that all conditions precedent to such execution and delivery have
been satisfied and (ii) the Opinion of Counsel required by Section 13.2(d). The
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Trustee's own rights, duties or immunities under this Agreement.
SECTION 13.2. Protection of Right, Title and Interest to Trust. (a)
The Servicer shall cause this Agreement, all amendments hereto and/or all
financing statements and continuation statements and any other necessary
documents covering the Certificateholders' and the Trustee's right, title and
interest in and to the Trust Assets to be promptly recorded, registered and
filed, and at all times to be kept recorded, registered and filed, all in such
manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of the Certificateholders and the Trustee
hereunder to all property comprising the Trust. The Servicer shall deliver to
the Trustee file-stamped copies of, or filing receipts for, any document
recorded, registered or filed as provided above, as soon as available following
such recording, registration or filing. The Seller shall cooperate fully with
the Servicer in connection with the obligations set forth above and shall
execute any and all documents reasonably required to fulfill the intent of this
Section 13.2(a).
(b) Within 30 days after the Seller or the Servicer makes any
change in its name, identity or corporate structure which would make any
financing statement or continuation
82
statement filed in accordance with Section 13.2(a) seriously misleading within
the meaning of Section 9-402(7) of the UCC as in effect in the applicable
jurisdiction (including as a result of a Designated Affiliate Transfer), the
Seller shall give the Trustee and any Agent notice of any such change and shall
file such financing statements or amendments as may be necessary to continue the
perfection of the Trust's security interest in the Receivables and the proceeds
thereof.
(c) The Seller and the Servicer shall give the Trustee and any
Agent prompt written notice of any relocation of any office from which it
services Receivables or keeps Records concerning the Receivables or of its
principal executive office if, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement and shall file such financing statements or amendments as may be
necessary to perfect or to continue the perfection of the Trust's security
interest in the Receivables and the proceeds thereof. The Seller and the
Servicer shall at all times maintain each office from which it services
Receivables and its principal executive office within the United States of
America.
(d) The Servicer shall deliver to the Trustee, any Agent and any
Enhancement Provider, upon the execution and delivery of each amendment of this
Agreement or any Supplement, an Opinion of Counsel to the effect specified in
Exhibit G-1.
SECTION 13.3. Limitation on Rights of Certificateholders. (a) The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor shall such death or incapacity entitle such
Certificateholders' legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding-up of the Trust, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
(b) No Investor Certificateholder shall have any right to vote
(except as expressly provided in this Agreement) or in any manner otherwise
control the operation and management of the Trust, or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Certificates, be construed so as to constitute the Investor
Certificateholders from time to time as partners or members of an association,
nor shall any Investor Certificateholder be under any liability to any third
person by reason of any action taken by the parties to this Agreement pursuant
to any provision hereof.
(c) No Investor Certificateholder shall have any right by virtue
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless such
Investor Certificateholder previously shall have made, and unless the Holders of
Investor Certificates evidencing more than 50% of the aggregate unpaid principal
amount of all Investor Certificates (or, with respect to any such action, suit
or proceeding that does not relate to all Series, 50% of the aggregate unpaid
principal amount of the Investor Certificates of all Series to which such
action, suit or proceeding relates) shall have made, a request to the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee, for 60 days after such request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being
83
expressly covenanted by each Investor Certificateholder with every other
Investor Certificateholder and the Trustee, that no one or more Investor
Certificateholders shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb or prejudice the rights of the holders of any other of the Investor
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Investor Certificateholder, or to enforce any right under this
Agreement, except in the manner herein provided and for the equal, ratable and
common benefit of all Investor Certificateholders except as otherwise expressly
provided in this Agreement. For the protection and enforcement of the provisions
of this Section, each and every Investor Certificateholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 13.4. No Petition. The Servicer, DFS (if it is no longer the
Servicer) and the Trustee (not in its individual capacity but solely as
Trustee), by entering into this Agreement, each Investor Certificateholder, by
accepting an Investor Certificate or an interest in an Investor Certificate,
each holder of a Supplemental Certificate by accepting a Supplemental
Certificate and any Successor Servicer and each other Beneficiary and each
Certificate Owner, by accepting the benefits of this Agreement, hereby covenants
and agrees or is deemed to covenant and agree, that they shall not at any time
institute against, or encourage or solicit any Person to institute against,
Deutsche FRLP, the general partner of Deutsche FRLP or the Trust, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States Federal or state bankruptcy or
similar law.
SECTION 13.5. GOVERNING LAW. THIS AGREEMENT AND THE CERTIFICATES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 13.6. Notices. (a) All demands, notices, instructions,
directions and communications (collectively, "Notices") under this Agreement
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, to (i) in
the case Deutsche FRLP, 655 Maryville Centre Drive, St. Louis, Missouri 63141,
Attention: Secretary, (ii) in the case of DFS, 655 Maryville Centre Drive, St.
Louis, Missouri 63141, Attention: Secretary, (iii) in the case of the Trustee,
450 West 33rd Street, 14th Floor, New York, New York 10001, Attention: Capital
Markets Fiduciary Services, Deutsche Floorplan Receivables, (iv) in the case of
Standard & Poor's, 55 Water Street, 40th Floor, New York, New York 10041,
Attention: Asset Backed Surveillance Department, (v) in the case of Moody's, 99
Church Street, New York, New York 10007, Attention: Structured Finance
Surveillance, (vi) in the case of Fitch, One State Street Plaza, New York, New
York 10004, or, as to each party and Rating Agency, at such other address as
shall be designated by such party or Rating Agency in a written notice to each
other party.
(b) Any Notice required or permitted to be given to a Holder of
Registered Certificates shall be given by first-class mail, postage prepaid, at
the address of such Holder as shown in the Certificate Register. Any Notice so
mailed within the time prescribed in this
84
Agreement shall be conclusively presumed to have been duly given, whether or not
the Investor Certificateholder receives such Notice.
SECTION 13.7. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or rights of the Certificateholders.
SECTION 13.8. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 8.2, this Agreement may not be
assigned by the Servicer.
SECTION 13.9. Certificates Nonassessable and Fully Paid. It is the
intention of the parties to this Agreement that the Investor Certificateholders
shall not be personally liable for obligations of the Trust, that the interests
in the Trust represented by the Investor Certificates shall be nonassessable for
any losses or expenses of the Trust or for any reason whatsoever and that
Investor Certificates upon authentication thereof by the Trustee are and shall
be deemed fully paid.
SECTION 13.10. Further Assurances. The Seller and the Servicer agree
to do and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested by the Trustee more
fully to effect the purposes of this Agreement, including the execution of any
financing statements or continuation statements relating to the Receivables for
filing under the provisions of the UCC of any applicable jurisdiction.
SECTION 13.11. No Waiver, Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trustee or the
Certificateholders, any right, remedy, power or privilege under this Agreement
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege under this Agreement preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges provided under this
Agreement are cumulative and not exhaustive of any rights, remedies, powers and
privileges provided by law.
SECTION 13.12. Counterparts. This Agreement may be executed in two
or more counterparts (and by different parties on separate counterparts), each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
SECTION 13.13. Third-Party Beneficiaries. This Agreement shall inure
to the benefit of and be binding upon the parties hereto, the Certificateholders
and the other Beneficiaries and their respective successors and permitted
assigns. Except as otherwise expressly provided in this Agreement, no other
Person shall have any right or obligation hereunder.
SECTION 13.14. Actions by Certificateholders. Any request, demand,
authorization, direction, notice, consent, waiver or other act by a
Certificateholder shall bind
85
such Certificateholder and every subsequent holder of any Certificate issued
upon the registration of transfer of the Certificates of such Certificateholder
or in exchange therefor or in lieu thereof in respect of anything done or
omitted to be done by the Trustee or the Servicer in reliance thereon, whether
or not notation of such action is made upon any such Certificate.
SECTION 13.15. Rule 144A Information. For so long as any of the
Investor Certificates of any Series or Class are "restricted securities" within
the meaning of Rule 144(a)(3) under the Act, each of the Seller, the Trustee,
the Servicer and any Enhancement Providers agree to cooperate with each other to
provide to any Investor Certificateholders of such Series or Class and to any
prospective purchaser of Investor Certificates designated by such an Investor
Certificateholder, upon the request of such Investor Certificateholder or
prospective purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act.
SECTION 13.16. Action by Trustee. Upon any application or request by
the Seller or Servicer to the Trustee to take any action under any provision
under this Agreement, the Seller or Servicer, as the case may be, shall furnish
to the Trustee an Officer's Certificate stating that all conditions precedent,
if any, provided for in this Agreement relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
Counsel all such conditions precedent, if any, have been complied with. The
Trustee shall be entitled to conclusively rely on the Officer's Certificate or
the Opinion of Counsel, as the case may be, as authority for any action
undertaken in connection therewith.
SECTION 13.17. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 13.18. Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation or
any provision hereof.
SECTION 13.19. Continued Effectiveness of the Existing Pooling and
Servicing Agreement. As amended and restated hereby, the Existing Pooling and
Servicing Agreement shall continue to be in full force and effect and is hereby
ratified and confirmed in all respects.
SECTION 13.20. Submission to Jurisdiction. Each of the parties
hereto hereby irrevocably and unconditionally: (a) submits for itself and its
property in any legal action or proceeding relating to this Agreement, any
Supplement, the Assignments, the Reassignments or the other documents executed
and delivered in connection herewith or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of such action or
86
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such
Person at its address determined in accordance with Section 13.6; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to sue in any other jurisdiction.
SECTION 13.21. Actions by Seller on Behalf of Trust. The Seller
shall have the right on behalf of the Trust to make any filings, reports,
notices, applications, registrations with, and to seek any consents or
authorizations from, the Securities and Exchange Commission and any State
securities authority on behalf of the Trust as may be necessary or advisable to
comply with any Federal or State securities laws or reporting requirement, and
the parties hereto hereby ratify and approve all such filings, reports, notices,
applications, registrations with, consents or authorizations made, sought or
obtained by the Seller prior to the date hereof.
87
IN WITNESS WHEREOF, the Seller, the Servicer and the Trustee have
caused this Pooling and Servicing Agreement to be duly executed as of the day
and year first above written.
DEUTSCHE FLOORPLAN RECEIVABLES,
L.P., Seller
By: DEUTSCHE FLOORPLAN RECEIVABLES,
INC., General Partner
By: /s/ RICHARD H. SCHUMACHER
---------------------------------------
Name: Richard H. Schumacher
Title: President
By: /s/ RICHARD C. GOLDMAN
---------------------------------------
Name: Richard C. Goldman
Title: Senior Vice President
|
DEUTSCHE FINANCIAL SERVICES
CORPORATION, Servicer
By: /s/ RICHARD H. SCHUMACHER
---------------------------------------
Name: Richard H. Schumacher
Title: Senior Vice President
By: /s/ RICHARD C. GOLDMAN
---------------------------------------
Name: Richard C. Goldman
Title: Senior Vice President
|
THE CHASE MANHATTAN BANK,
Trustee
By: /s/ KRISTIN DRISCOLL
---------------------------------------
Name: Kristin Driscoll
Title: Trust Officer
|
EXHIBIT A
[RESERVED]
A-1
EXHIBIT B
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.05
of the Pooling and Servicing Agreement)
ASSIGNMENT No. OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of , ,
among Deutsche Floorplan Receivables, L.P., as seller (the "Seller"), Deutsche
Financial Services Corporation ("DFS"), as servicer (the "Servicer"), and The
Chase Manhattan Bank, as trustee (the "Trustee"), pursuant to the Pooling and
Servicing Agreement referred to below.
W I T N E S S E T H :
WHEREAS the Seller, the Servicer and the Trustee are parties to the
Amended and Restated Pooling and Servicing Agreement dated as of April 1, 2000
(as amended, amended and restated or otherwise modified from time to time, the
"Agreement");
WHEREAS, pursuant to the Agreement, the Seller wishes to designate
Additional Accounts to be included as Accounts and to convey the Receivables and
related Collateral Security of such Additional Accounts, whether now existing or
hereafter created, to the Trust as part of the corpus of the Trust (as each such
term is defined in the Agreement); and
WHEREAS the Trustee is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, the Seller, the Servicer and the Trustee hereby
agree as follows:
1. Defined Terms. All capitalized terms used herein shall have
the meanings ascribed to them in the Agreement unless otherwise defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
designated hereby, ___, 20__.
2. Designation of Additional Accounts. The Seller hereby delivers
herewith a computer file or microfiche or written list containing a true and
complete list of all such Additional Accounts specifying for each such Account,
as of the Additional Cut-Off Date, its account number, the aggregate amount of
Receivables outstanding in such Account and the aggregate amount of
Principal Receivables in such Account. Such file or list shall, as of the date
of this Assignment, supplement Schedule 1 to the Agreement.
B-1
3. Conveyance of Receivables. (a) The Seller does hereby sell,
transfer, assign, set over and otherwise convey, without recourse (except as
expressly provided in the Agreement), to the Trust for the benefit of the
Certificateholders and the other Beneficiaries, all its right, title and
interest in, to and under the Receivables in such Additional Accounts and all
Collateral Security with respect thereto, owned by the Seller and existing at
the close of business on the Additional Cut-Off Date and thereafter created from
time to time until the termination of the Trust, all monies due or to become due
and all amounts received with respect thereto and all proceeds (including
"proceeds" as defined in Section 9-306 of the UCC as in effect in the State of
Missouri and Recoveries) thereof. The foregoing sale, transfer, assignment,
set-over and conveyance does not constitute and is not intended to result in the
creation or an assumption by the Trust, the Trustee, any Agent or any
Beneficiary of any obligation of the Servicer, the Seller or any other Person in
connection with the Accounts, the Receivables or under any agreement or
instrument relating thereto, including any obligation to any Dealers.
(b) In connection with such sale, the Seller agrees to record and
file, at its own expense, a financing statement on form UCC-1 (and continuation
statements when applicable) with respect to the Receivables now existing and
hereafter created for the sale of chattel paper (as defined in Section 9-105 of
the UCC as in effect in any state where the Seller's or the Servicer's chief
executive offices or books and records relating to the Receivables are located)
meeting the requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect the sale and assignment of the
Receivables and the Collateral Security to the Trust, and to deliver a
file-stamped copy of such financing statements or other evidence of such filing
to the Trustee on or prior to the Addition Date. The Trustee shall be under no
obligation whatsoever to file such financing statement, or a continuation
statement to such financing statement, or to make any other filing under the UCC
in connection with such sales.
(c) In connection with such sale, the Seller further agrees, at
its own expense, on or prior to the Addition Date, to indicate in its computer
files that the Receivables created in connection with the Additional Accounts
designated hereby have been sold and the Collateral Security assigned to the
Trust pursuant to this Assignment for the benefit of the Certificateholders and
the other Beneficiaries.
4. Acceptance by Trustee. Subject to the satisfaction of the
conditions set forth in Section 6 of this Assignment, the Trustee hereby
acknowledges its acceptance, on behalf of the Trust, of all right, title and
interest previously held by the Seller to the property, now existing and
hereafter created, conveyed to the Trust pursuant to Section 3(a) of this
Assignment, and declares that it shall maintain such right, title and interest,
upon the trust set forth in the Agreement for the benefit of the
Certificateholders and other Beneficiaries. The Trustee further acknowledges
that, prior to or simultaneously with the execution and delivery of this
Assignment, the Seller delivered to the Trustee the computer file or microfiche
or written list relating to the Additional Accounts described in Section 2 of
this Assignment. The Trustee shall be under no obligation whatsoever to verify
the accuracy or completeness of the information contained in such file or list.
5. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Trustee, on behalf of the Trust, as of the
date of this Assignment and as of the Addition Date that:
B-2
(a) Legal, Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect affecting creditors, rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity);
(b) Organization and Good Standing. The Seller is a limited
partnership duly organized and validly existing and in good standing under
the law of the State of Delaware and has, in all material respects, full
power, authority and legal right to own its properties and conduct its
business as such properties are presently owned and such business is
presently conducted, and to execute, deliver and perform its obligations
under this Assignment.
(c) Due Qualification. The Seller is duly qualified to do business
and, where necessary, is in good standing as a foreign partnership (or is
exempt from such requirement) and has obtained all necessary licenses and
approvals in each jurisdiction in which the conduct of its business
requires such qualification except where the failure to so qualify or
obtain licenses or approvals would not have a material adverse effect on
its ability to perform its obligations hereunder;
(d) Eligible Accounts. Each Additional Account designated hereby
is an Eligible Account;
(e) Selection Procedures. No selection procedures believed by the
Seller to be adverse to the interests of the Beneficiaries were utilized
in selecting the Additional Accounts designated hereby;
(f) Insolvency. As of the Notice Date and the Addition Date,
neither DFS nor the Seller are insolvent nor, after giving effect to the
conveyance set forth in Section 3 of this Assignment, shall any of them
have been made insolvent, nor are any of them aware of any pending
insolvency;
(g) Valid Transfer. This Assignment constitutes a valid sale,
transfer and assignment to the Trust of all right, title and interest of
the Seller in the Receivables and the Collateral Security and the proceeds
thereof and upon the filing of the financing statements described in
Section 3 of this Assignment with the Secretary of State of the State of
Missouri and other applicable states and, in the case of the Receivables
and the Collateral Security hereafter created and the proceeds thereof,
upon the creation thereof, the Trust shall have a first priority perfected
ownership interest in such property, except for Liens permitted under
Section 2.6(a) of the Agreement. Except as otherwise provided in the
Pooling and Servicing Agreement, neither the Seller nor any Person
claiming through or under the Seller has any claim to or interest in the
Trust Assets;
(h) Due Authorization. The execution and delivery of this
Assignment and the consummation of the transactions provided for or
contemplated by this Assignment
B-3
have been duly authorized by the Seller by all necessary partnership
action on the part of the Seller.
(i) No Conflict. The execution and delivery of this Assignment,
the performance of the transactions contemplated by this Assignment and
the fulfillment of the terms hereof, shall not conflict with, result in
any breach of any of the material terms and provisions of, or constitute
(with or without notice or lapse of time or both) a material default
under, any indenture, contract, agreement, mortgage, deed of trust, or
other instrument to which the Seller is a party or by which it or its
properties are bound;
(j) No Violation. The execution and delivery of this Assignment by
the Seller, the performance of the transactions contemplated by this
Assignment and the fulfillment of the terms hereof applicable to the
Seller shall not conflict with or violate any material Requirements of Law
applicable to the Seller;
(k) No Proceedings. There are no proceedings or, to the best
knowledge of the Seller, investigations pending or threatened against the
Seller before any Governmental Authority (i) asserting the invalidity of
this Assignment, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Assignment, (iii) seeking any
determination or ruling that, in the reasonable judgment of the Seller,
would materially and adversely affect the performance by the Seller of its
obligations under this Assignment, (iv) seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Assignment or (v) seeking to affect adversely the
income tax attributes of the Trust under the United States Federal or any
State income, single business or franchise tax systems;
(l) Record of Accounts. As of the Addition Date, Schedule 1 to
this Assignment is an accurate and complete listing in all material
respects of all the Additional Accounts as of the Additional Cut-Off Date
and the information contained therein with respect to the identity of such
Accounts and the Receivables existing thereunder is true and correct in
all material respects as of the Additional Cut-Off Date;
(m) No Liens. Each Receivable and all Collateral Security existing
on the Addition Date has been conveyed to the Trust free and clear of any
Lien, except for Liens permitted under Section 2.6(a) of the Agreement;
(n) All Consents Required. With respect to each Receivable and all
Collateral Security existing on the Addition Date, all consents, licenses,
approvals or authorizations of or registrations or declarations with any
Governmental Authority required to be obtained, effected or given by the
Seller in connection with the conveyance of such Receivable or Collateral
Security to the Trust, the execution and delivery of this Assignment and
the performance of the transactions contemplated hereby have been duly
obtained, effected or given and are in full force and effect; and
(o) Eligible Receivables. On the Additional Cut-Off Date each
Receivable conveyed to the Trust as of such date is an Eligible Receivable
or, if such Receivable is
B-4
not an Eligible Receivable, such Receivable is conveyed to the Trust in
accordance with Section 2.9 of the Agreement.
6. Conditions Precedent. The acceptance of the Trustee set forth
in Section 4 of this Assignment is subject to the satisfaction, on or prior to
the Addition Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by the Seller in Section 5 of this Assignment shall be
true and correct as of the date of this Assignment and as of the Addition
Date;
(b) Agreement. Each of the conditions set forth in Section 2.5(d)
of the Agreement applicable to the designation of the Additional Accounts
to be designated hereby shall have been satisfied; and
(c) Officer's Certificate. The Seller shall have delivered to the
Trustee an Officer's Certificate, dated the date of this Assignment, in
which an officer of the Seller shall state that the representations and
warranties of the Seller under Section 5 hereof are true and correct. The
Trustee may conclusively rely on such Officers' Certificate, shall have no
duty to make inquiries with regard to the matters set forth therein and
shall incur no liability in so relying.
7. Ratification of Agreement. As supplemented by this Assignment,
the Agreement is in all respects ratified and confirmed and the Agreement as so
supplemented by this Assignment shall be read, taken and construed as one and
the same instrument.
8. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties in separate counterparts), each of which
shall be an original but all of which together shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
B-5
IN WITNESS WHEREOF, the Seller, the Servicer and the Trustee have
caused this Assignment to be duly executed and delivered by their respective
duly authorized officers as of the day and the year first above written.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.,
Seller,
By: DEUTSCHE FLOORPLAN
RECEIVABLES, INC., General Partner
By:
Name:
Title:
By:
Name:
Title:
DEUTSCHE FINANCIAL SERVICES
CORPORATION, as Servicer
By:
Name:
Title:
By:
Name:
Title:
THE CHASE MANHATTAN BANK, as Trustee,
By:
Name:
Title:
B-6
EXHIBIT C
FORM OF ANNUAL SERVICER'S CERTIFICATE
(As required to be delivered on or before March 31
of each calendar year pursuant to Section 3.5 of
the Pooling and Servicing Agreement)
Deutsche Financial Services Corporation
DISTRIBUTION FINANCIAL SERVICES
FLOORPLAN MASTER TRUST
The undersigned, duly authorized representatives of Deutsche Financial
Services Corporation ("DFS"), as Servicer, pursuant to the Amended and Restated
Pooling and Servicing Agreement dated as of April 1, 2000 (as amended, amended
and restated or otherwise modified from time to time, the "Agreement"), by and
among Deutsche Floorplan Receivables, L.P., as seller, DFS, as servicer, and The
Chase Manhattan Bank, as trustee, do hereby certify that:
1. DFS is, as of the date hereof, the Servicer under the
Agreement.
2. The undersigned are Servicing Officers and are duly authorized
pursuant to the Agreement to execute and deliver this Certificate to the
Trustee, any Agent and any Enhancement Providers.
3. A review of the activities of the Servicer during the calendar
year ended December 31, , and of its performance under the Agreement was
conducted under our supervision.
4. Based on such review, the Servicer has, to the best of our
knowledge, performed in all material respects all of its obligations under
the Agreement throughout such year and no default in the performance of
such obligations has occurred or is continuing except as set forth in
paragraph 5 below.
5. The following is a description of each default in the
performance of the Servicer's obligations under the provisions of the
Agreement known to us to have been made by
the Servicer during the year ended December 31, _____, which sets forth in
detail the (a) nature of each such default, (b) the action taken by the
Servicer, if any, to remedy each such default and (c) the current status
of each such default: [If applicable, insert "None."]
Capitalized terms used but not defined herein are used as defined in the
Agreement.
C-1
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Certificate this ____ day of _______, ______.
Name:
Title:
Name:
Title:
C-2
EXHIBIT D-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"). NEITHER THIS CERTIFICATE NOR ANY PORTION HEREOF MAY
BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE
1933 ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES LAWS
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
D-1-1
EXHIBIT D-2
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A BENEFIT PLAN (AS
DEFINED BELOW). */
*/ The following should be inserted in any Certificate bearing such legend:
This Certificate may not be acquired by or for the account of any
employee benefit plan, trust or account, including an individual retirement
account, that is subject to the Employee Retirement Income Security Act of 1974,
as amended, or that is described in Section 4975(e)(1) of the Internal Revenue
Code of 1986, as amended, or an entity whose underlying assets include plan
assets by reason of a plan's investment in such entity (a "Benefit Plan"). By
accepting and holding this Certificate or any interest in this Certificate, the
Holder hereof shall be deemed to have represented and warranted that it is not
funding its acquisition with the assets of any Benefit Plan.
D-2-1
EXHIBIT E
[RESERVED]
E-1
EXHIBIT F-1
[FORM OF CLEARANCE SYSTEM CERTIFICATE
TO BE GIVEN TO THE TRUSTEE BY
EUROCLEAR OR CEDEL FOR
DELIVERY OF DEFINITIVE CERTIFICATES
IN EXCHANGE FOR A PORTION OF A
TEMPORARY GLOBAL SECURITY]
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
[ %] [Floating Rate] Asset Backed Certificates, Series [ ]
[Insert title or sufficient description
of Certificates to be delivered]
We refer to that portion of the temporary Global Certificate in
respect of the above-captioned issue which is herewith submitted to be exchanged
for definitive Certificates (the "Submitted Portion") as provided in the Amended
and Restated Pooling and Servicing Agreement dated as of April 1, 2000 (as
amended, amended and restated or otherwise modified from time to time, the
"Agreement"), in respect of such issue. This is to certify that (i) we have
received a certificate or certificates, in writing or by tested telex, with
respect to each of the persons appearing in our records as being entitled to a
beneficial interest in the Submitted Portion and with respect to such persons
beneficial interest either (a) from such person, substantially in the form of
Exhibit F-2 to the Agreement, or (b) from [ ], substantially in the form of
Exhibit F-3 to the Agreement, and (ii) the Submitted Portion includes no part of
the temporary Global Certificate excepted in such certificates.
We further certify that as of the date hereof we have not received
any notification from any of the persons giving such certificates to the effect
that the statements made by them with respect to any part of the Submitted
Portion are no longer true and cannot be relied on as of the date hereof.
We understand that this certificate is required in connection with
certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings.
F-1-1
Dated: 1/
[Morgan Guaranty Trust
Company of New York,
Brussels office, as
operator of the
Euroclear System]2/
[Centrale de Livraison
de Valeurs Mobiliere S.A.]2/
By: ____________________________
1/ To be dated on the Exchange Date.
2/ Delete the inappropriate reference.
F-1-2
EXHIBIT F-2
[FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CEDEL
BY [ ]
WITH RESPECT TO REGISTERED CERTIFICATES SOLD TO
QUALIFIED INSTITUTIONAL BUYERS]
DISTRIBUTION FINANCIAL SERVICES
FLOORPLAN MASTER TRUST,
[ %] [Floating Rate] Asset Backed Certificates, Series [ ]
In connection with the initial issuance and placement of the above
referenced Asset Backed Certificates (the "Certificates"), an institutional
investor in the United States ("institutional investor") is purchasing U.S. $
aggregate principal amount of the Certificates held in our account at [Morgan
Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System] [Cedel S.A.] on behalf of such investor.
We reasonably believe that such institutional investor is a
qualified institutional buyer as such term is defined under Rule 144A of the
Securities and Exchange Commission under the Securities Act of 1933, as amended.
[We understand that this certificate is required in connection with
United States laws. We irrevocably authorize you to produce this certificate or
a copy hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered by this certificate.]
The Definitive Certificates in respect of this certificate are to be
issued in registered form in the minimum denomination of U.S. $ 00,000 and such
Definitive Certificates (and, unless the Pooling and Servicing Agreement or
Supplement relating to the Certificates otherwise provides, any Certificates
issued in exchange or substitution for or on registration of transfer of
Certificates) shall bear the following legend:
"THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933. NEITHER THIS CERTIFICATE NOR ANY PORTION
HEREOF MAY BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED
STATES OR TO U.S. PERSONS (EACH AS DEFINED HEREIN), EXCEPT IN
COMPLIANCE WITH THE REGISTRATION
F-2-1
PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM
SUCH REGISTRATION PROVISIONS. THE TRANSFER OF THIS CERTIFICATE IS
SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. THIS CERTIFICATE CANNOT BE EXCHANGED
FOR A BEARER CERTIFICATE."
Dated:
[_________________________________]
Authorized Officer
F-2-2
EXHIBIT F-3
[FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CEDEL BY A BENEFICIAL OWNER
OF CERTIFICATES, OTHER THAN A QUALIFIED INSTITUTIONAL BUYER]
DISTRIBUTION FINANCIAL SERVICES
FLOORPLAN MASTER TRUST
[ %] [Floating Rate] Asset Backed Certificates, Series [ ]
This is to certify that as of the date hereof and except as provided
in the third paragraph hereof, the above-captioned Certificates held by you for
our account (i) are not owned by a person that is a United States person, (ii)
are owned by a United States person that is (A) the foreign branch of a United
States financial institution (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) (a "financial institution") purchasing for its own account or
for resale, or (B) a United States person who acquired the Certificates through
the foreign branch of a financial institution and who holds the Certificates
through the financial institution on the date hereof (and in either case (A) or
(B), the financial institution hereby agrees to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by a financial
institution for purposes of resale during the Restricted Period (as defined in
U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) . In addition,
financial institutions described in clause (iii) of the preceding sentence
(whether or not also described in clause (i) or (ii)) certify that they have not
acquired the Certificates for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
We undertake to advise you by tested telex if the above statement as
to beneficial ownership is not correct on the date of delivery of the
above-captioned Certificates in bearer form with respect to such of said
Certificates as then appear in your books as being held for our account.
This certificate excepts and does not relate to U.S. $ principal
amount of Certificates held by you for our account, as to which we are not yet
able to certify beneficial ownership. We understand that delivery of Definitive
Certificates in such principal amount cannot be made until we are able to so
certify.
We understand that this certificate is required in connection with
certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings. As used herein, "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction; and "United States
Person" means a citizen or resident of the United States, a
F-3-1
corporation, partnership or other entity created or organized in or under the
laws of the United States, or any political subdivision thereof, or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
Dated: 1/ By: As, or as agent for, the
beneficial owner(s) of
the interest in the
Certificates to which
this certificate relates.
-------------------------
|
1/ This Certificate must be dated on the earlier of the date of the first actual
payment of interest in respect of the Certificates and the date of the delivery
of the Certificates in definitive form.
F-3-2
EXHIBIT G-1
FORM OF OPINION OF COUNSEL
Provisions to be Included in
Opinion of Counsel Delivered Pursuant
to Section 13.2(d)
(a) The Amendment to the [Pooling and Servicing Agreement]
[Supplement], attached hereto as Schedule 1 (the "Amendment"), has been duly
authorized, executed and delivered by the Seller and constitutes the legal,
valid and binding agreement of the Seller, enforceable in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally from time to time in effect. The enforceability of the Seller's
obligations is also subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(b) The Amendment has been entered into in accordance with the
terms and provisions of Section 13.1 of the Pooling and Servicing Agreement.
G-1-1
EXHIBIT G-2
TO PSA
FORM OF OPINION OF COUNSEL
Provisions to be Included in Opinion of Counsel to be
Delivered Pursuant to Sections 2.5 and 13.2(g)(i) and (ii)(1)
The opinions set forth below may be subject to all the
qualifications, assumptions, limitations and exceptions taken or made in the
opinion of counsel to Deutsche Floorplan Receivables, L.P. (the "Seller")
delivered on any Closing Date. Capitalized terms used but not defined herein are
used as defined in the Amended and Restated Pooling and Servicing Agreement,
dated as of April 1, 2000 (as amended, amended and restated or otherwise
modified from time to time, the "Agreement"), among the Seller, as seller,
Deutsche Financial Services Corporation, as servicer, and The Chase Manhattan
Bank, as trustee.
[(a) The Assignment has been duly authorized, executed and delivered
by the Seller, and constitutes the valid and legally binding obligation of the
Seller, enforceable against the Seller in accordance with its terms.]
(b) Assuming the Receivables [in the Additional Accounts] are
created under, and are evidenced solely by, Wholesale Financing Agreements,
Accounts Receivable Financing Agreements, or Asset Based Financing Agreements,
such Receivables shall constitute "chattel paper", "accounts" or "general
intangibles" as defined under Section 9-105 of the UCC. We note that the Seller
has given us an Officer's Certificate to the effect that the Receivables are
created under Wholesale Financing Agreements, Accounts Receivable Financing
Agreements, or Asset Based Financing Agreements.
(c) [True sale opinion regarding transfer of Receivables from DFS
to the Seller.]
(d) If the transfer of the Receivables [in the Additional
Accounts] and all [of the related] Collateral Security to the Trust pursuant to
the Pooling and Servicing Agreement constitutes a true sale of such Receivables
and Collateral Security to the Trust:
(i) with respect to such Receivables and Collateral Security
in existence on the date hereof, such sale transfers all of the
right, title and interest of the Seller in and to such Receivables
and Collateral Security to the Trust, free and clear of any liens
now existing or hereafter created, but subject to the rights of the
holder of the Deutsche FRLP Certificate and except for Liens
permitted under Section 2.6(a) of the Agreement;
(ii) with respect to such Receivables and Collateral Security
which come into existence after the date hereof, upon the creation
of such Receivables and Collateral Security and the subsequent
transfer of such Receivables and Collateral
(1) Include bracketed language only in the case of additions of Accounts
effected pursuant to Section 2.05 of the Pooling and Servicing Agreement.
G-2-1
Security to the Trust in accordance with the Pooling and Servicing
Agreement and receipt by the Seller of the consideration therefor
required pursuant to the Pooling and Servicing Agreement, such sale
shall transfer all of the right, title and interest of the Seller in
and to such Receivables and Collateral Security to the Trust free
and clear of any liens but subject to the rights of the holder of
the Deutsche FRLP Certificate and except for Liens permitted under
Section 2.6(a) of the Agreement;
and, in either case, no further action shall thereafter be required
under Missouri or federal law to protect the Trust's ownership
interest in the Receivables and the Collateral Security against
creditors of, or subsequent purchasers from, the Seller.
(e) If the transfer of the Receivables and Collateral Security to
the Trust pursuant to the Pooling and Servicing Agreement does not constitute a
true sale of the Receivables and the Collateral Security to the Trust, then the
Pooling and Servicing Agreement as amended and supplemented by the Assignment
creates a valid security interest in favor of the Trustee, for the benefit of
the Certificateholders, in the Seller's right, title and interest in and to the
Receivables and the Collateral Security and the proceeds thereof securing the
obligations of the Seller thereunder. Financing statements on form UCC-1 having
been filed in the Offices of the Secretaries of State of the State of Missouri
and [other applicable states] [and counties) and accordingly, such security
interest constitutes a perfected security interest in such Receivables and
Collateral Security and the proceeds thereof subject to no prior liens (but
subject to the Liens permitted by Section 2.6(a) of the Agreement), enforceable
as such against creditors of, and subsequent purchasers from, the Seller,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws relating to or affecting creditors' rights generally
and to general equity principles.
G-2-2
EXHIBIT H
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
(As required by Section 2.7 of the Pooling and
Servicing Agreement referred to below)
REASSIGNMENT NO. OF RECEIVABLES,
dated as of , 20__, by and between DEUTSCHE FLOORPLAN
RECEIVABLES, L.P., a limited partnership organized
under the laws of the State of Delaware (the
"Seller"), and The Chase Manhattan Bank, a New York
banking corporation, as trustee (the "Trustee")
pursuant to the Pooling and Servicing Agreement
referred to below.
WITNESSETH
WHEREAS the Seller, Deutsche Financial Services Corporation, as
servicer (the "Servicer"), and the Trustee are parties to the Amended and
Restated Pooling and Servicing Agreement dated as of April 1, 2000 (as amended,
amended and restated or otherwise modified from time to time, the"Agreement");
WHEREAS, pursuant to the Agreement, the Seller wishes (a) to remove
certain Accounts (the "Removed Accounts") and (b) if and only if permitted by
Section 2.8(d) of the Agreement, to cause the Trustee to reconvey the
Receivables of such Removed Accounts and the related Collateral Security,
whether now existing or hereafter created, and all amounts currently held by the
Trust or thereafter received by the Trust in respect of such Removed Accounts,
from the Trust to the Seller (as each such term is defined in the Agreement);
and
WHEREAS the Trustee is willing to accept such removal and to
reconvey the Receivables in the Removed Accounts, such Collateral Security and
any related amounts held or received by the Trust subject to the terms and
conditions hereof.
NOW, THEREFORE, the Seller and the Trustee hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used
herein shall have such defined meanings when used herein, unless otherwise
defined herein.
"Removal Date" shall mean, with respect to the Removed Accounts
designated hereby,
2. Notice of Removed Accounts. (a) Not less than five Business
Days prior to the Removal Date, the Seller shall furnish to the Trustee, any
Agent, any Enhancement Providers and the Rating Agencies a written notice
specifying the Determination Date (which may be the Determination Date on which
such notice is given) on which removal of one or more Accounts shall occur, such
date being a Removal Date.
H-1
(b) On or before the fifth Business Day after the Removal Date,
the Seller shall furnish to the Trustee a computer file, microfiche list or
other list of the Removed Accounts that were removed on the Removal Date,
specifying for each Removed Account as of the date of the Removal Notice its
number, the aggregate amount outstanding in such Removed Account and the
aggregate amount of Principal Receivables therein and represent that such
computer file, microfiche list or other list of the Removed Accounts is true and
complete in all material respects.
3. Conveyance of Receivables and Accounts. (a) The Trustee does
hereby transfer, assign, set over and otherwise convey to the Seller, without
recourse, representation or warranty on and after the Removal Date, all right,
title and interest of the Trust in, to and under all [in the case of Removed
Accounts which were Ineligible Accounts at the time they were originally
designated as Accounts, use the following language: Receivables now existing at
the close of business on the Removal Date and thereafter created from time to
time until the termination of the Trust in Removed Accounts designated hereby,
all Collateral Security thereof, all monies due or to become due and all amounts
received with respect thereto (including all Non-Principal Receivables), all
proceeds (as defined in Section 9-306 of the UCC as in effect in the State of
Missouri) and Recoveries thereof relating thereto] [in the case of Removed
Accounts which were not Ineligible Accounts at the time they were originally
designated as Accounts, replace the immediately preceding bracketed text with
the following: the Removed Accounts but not any right, title and interest of the
Trust in, to and under (i) all Receivables existing at the close of business on
the Removal Date in Removed Accounts designated hereby, (ii) all Collateral
Security relating to such Receivables, (iii) all monies due or to become due and
all amounts received with respect to such Receivables (including all
Non-Principal Receivables), (iv) all proceeds (as defined in Section 9-306 of
the UCC in effect in the State of Missouri) of such Receivables and (v) all
Recoveries of such Receivables relating thereto, it being understood that the
items described in clauses (i)-(v) shall continue to be Trust Assets].
(b) If requested by the Seller, in connection with such transfer,
the Trustee agrees to execute and deliver to the Seller on or prior to the date
of this Reassignment, a termination statement under the UCC of each applicable
jurisdiction with respect to the Receivables existing at the close of business
on the Removal Date and thereafter created from time to time and Collateral
Security thereof in the Removed Accounts reassigned hereby (which may be a
single termination statement with respect to all such Receivables and Collateral
Security) evidencing the release by the Trust of its lien on the Receivables in
the Removed Accounts and the Collateral Security, and meeting the requirements
of applicable state law, in such manner and such jurisdictions as are necessary
to remove such lien.
4. Acceptance by Trustee. The Trustee hereby acknowledges that,
prior to or simultaneously with the execution and delivery of this Reassignment,
the Seller delivered to the Trustee the computer file or such microfiche or
written list described in Section 2(b) of this Reassignment.
5. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Trustee, on behalf of the Trust, as of the
date of this Reassignment and as of the Removal Date:
H-2
(a) Legal, Valid and Binding Obligation. This Reassignment
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights
generally and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or
in equity);
(b) No Early Amortization Event. The removal of the Accounts
hereby removed shall not, in the reasonable belief of the Seller,
cause an Early Amortization Event to occur or cause the Pool Balance
to be less than the Required Participation Amount;
(c) Selection Procedures. No selection procedures believed
by the Seller to be adverse to the interests of the Beneficiaries
were utilized in selecting the Accounts to be removed;
(d) True and Complete List. The list of Removed Accounts
described in Section 2 of this Assignment is, as of the Removal
Commencement Date, true and complete in all material respects; and
(e) Rating of Certificates. The removal of such Accounts
shall not result in a reduction or withdrawal of the rating of any
outstanding series or Class by the applicable Rating Agency;
provided, however, that in the event that the removal on such
Removal Date relates solely to Ineligible Accounts, the Seller shall
be deemed to make only the representations and warranties contained
in paragraph 5(a) above.
6. Conditions Precedent. In addition to the conditions precedent
set forth in Section 2.7 of the Agreement, the obligation of the Trustee to
execute and deliver this Reassignment is subject to the satisfaction, on or
prior to the Removal Date, of the following additional conditions precedent:
(a) Officers' Certificate. The Seller shall have delivered to the
Trustee, any Agent, and any Enhancement Providers an Officers' Certificate
certifying that (i) as of the Removal Date, all requirements set forth in
Section 2.7 of the Agreement for removing such Accounts and reconveying the
Receivables of such Removed Accounts and the Collateral Security, whether
existing at the close of business on the Removal Date or thereafter created from
time to time until the termination of the Trust, have been satisfied, and (ii)
each of the representations and warranties made by the Seller in Section 5
hereof is true and correct as of the date of this Reassignment and as of the
Removal Date. The Trustee may conclusively rely on such Officers' Certificate,
shall have no duty to make inquiries with regard to the matters set forth
therein and shall incur no liability in so relying.
(b) The Seller shall have delivered to the Trustee, any Agent, any
Enhancement Providers and each Rating Agency a Tax Opinion, dated the Removal
Date, with respect to the removal of Accounts.
H-3
7. Ratification of Agreement. As supplemented by this
Reassignment, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Reassignment shall be read, taken and
construed as one and the same instrument.
8. Counterparts. This Reassignment may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
H-4
IN WITNESS WHEREOF, the undersigned have caused this Reassignment to
be duly executed and delivered by their respective duly authorized officers on
the day and year first above written.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.,
Seller,
By: DEUTSCHE FLOORPLAN
RECEIVABLES, INC., General Partner
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, Trustee
By: ________________________________________
Name:
Title:
H-5
Schedule 1
List of Accounts
Delivered separately to the Trustee and deemed to be incorporated
herein.
1
Schedule 2
The Collection Account for the Trust has been established with The
Chase Manhattan Bank, Account #507-865677.
2
Exhibit 4.6
FIRST OMNIBUS AMENDMENT TO
AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
AND SUPPLEMENTS
THIS FIRST OMNIBUS AMENDMENT TO AMENDED AND RESTATED POOLING AND SERVICING
AGREEMENT AND SUPPLEMENTS, dated as of as of December 31, 2002 (this
"Amendment"), is among Deutsche Floorplan Receivables, L.P. ("Limited
Partnership"), a Delaware limited partnership, GE Commercial Distribution
Finance Corporation ("CDF"), a Nevada corporation (formerly known as Deutsche
Financial Services Corporation), as Servicer, Wilmington Trust Company ("WTC")
(successor to The Chase Manhattan Bank), as Trustee, and CDF Financing, L.L.C.
("LLC"), a Delaware limited liability company.
BACKGROUND
The parties hereto include the parties to the following agreements:
1. Amended and Restated Pooling and Servicing Agreement, dated as of
April 1, 2000, among Limited Partnership as Seller, CDF as Servicer and WTC as
Trustee (as amended from time to time, the "PSA");
2. Series 2000-1 Supplement, dated as of April 1, 2000 (as amended from
time to time, the "Series 2000-1 Supplement"), among Limited Partnership as
Seller, CDF as Servicer and WTC as Trustee;
3. Series 2000-2 Supplement, dated as of April 1, 2000 (as amended from
time to time, the "Series 2000-2 Supplement"), among Limited Partnership as
Seller, CDF as Servicer and WTC as Trustee; and
4. Series 2000-4 Supplement, dated as of July 1, 2000 (as amended from
time to time, the "Series 2000-4 Supplement"); the Series 2000-1 Supplement, the
Series 2000-2 Supplement, and the Series 2000-4 Supplement may be referred to
collectively as the "Supplements"; the Supplements and the PSA may be referred
to collectively as the "Agreements" and individually as an "Agreement"), among
Limited Partnership as Seller, CDF as Servicer, and WTC as Trustee.
The parties hereto desire to amend each of the Agreements as set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Definitions. Capitalized terms defined in an Agreement and used
but not otherwise defined herein have the meanings given to them in such
Agreement.
First Omnibus Amendment - CDF
SECTION 2. Preambles. The phrase "Deutsche Floorplan Receivables, L.P., a
Delaware limited partnership, as Seller" as it appears in the Preamble of each
of the Agreements is hereby deleted and replaced by:
"CDF Financing, L.L.C., a Delaware limited liability company, as Seller".
SECTION 3. Section 1.1 of PSA.
(a) Section 1.1 of the PSA is hereby amended by adding the following
definitions:
"CDF" shall mean GE Commercial Distribution Finance Corporation
(formerly known as Deutsche Financial Services Corporation), a
Nevada corporation, and its successors.
"First Tier Transfer Agreement" means the Receivables Contribution
and Sale Agreement, dated as of December 1, 1993, amended and
restated as of March 1, 1994, as amended as of January 24, 1996,
amended and restated as of October 1, 1996, and amended as of
December 31, 2002, between CDF and Deutsche FRLP, as the same may be
further amended and restated or otherwise modified from time to
time.
"GECC" shall mean General Electric Capital Corporation, a Delaware
Corporation, and its successors.
"GECS" shall mean General Electric Capital Services, Inc., a
Delaware corporation, and its successors.
"LLC" shall mean CDF Financing, L.L.C., a Delaware limited liability
company, and its successors.
"LLC Certificate" shall mean the certificate executed by the Seller
and authenticated by the Trustee, substantially in the form of
Exhibit A to the Existing Pooling and Servicing Agreement.
(b) Section 1.1 of the PSA is hereby amended by deleting the following
definitions:
"Deutsche FRI"
"Deutsche FRLP Certificate"
"Deutsche North America"
"DFS"
(c) Section 1.1 of the PSA is hereby amended by amending the following
defined terms to read as follows:
"Officers' Certificate" with respect to any Person shall mean,
unless otherwise specified in this Agreement, a certificate signed
by an officer or manager of such
2 First Omnibus Amendment - CDF
Person (or, if such Person is a limited partnership, a certificate
signed by an officer or manager of the general partner of such
limited partnership).
"Rating Agency" shall mean, with respect to any outstanding Series
or Class, each statistical rating agency, if any, selected by the
Seller (or, if such Series or Class was issued prior to 2003,
selected by Deutsche FRLP) to rate the Investor Certificates of such
Series or Class.
"Receivables Contribution and Sale Agreement" shall mean the
Receivables Contribution and Sale Agreement dated as of December 31,
2002 between Deutsche FRLP and the LLC, as the same may be amended,
amended and restated or otherwise modified from time to time.
"Seller" shall mean the LLC.
"Trustee" shall mean Wilmington Trust Company, or its successor in
interest, or any successor trustee appointed as herein provided.
"Vice President" when used with respect to any Person shall mean a
vice president or a manager of such Person, whether or not
designated by a number or word or words added before or after the
title "vice president" or "manager".
(d) Clause (ii) of the definition of Participation Agreement in Section
1.1 of the PSA is hereby amended by deleting the phrase "Receivables
Contribution and Sale Agreement" and replacing it with the phrase "First Tier
Transfer Agreement".
SECTION 4. Deutsche FRLP.
(a) Section 13.6 of the PSA is hereby amended by deleting the phrases:
(i) in the case Deutsche FRLP, 655 Maryville Centre Drive, St.
Louis, Missouri 63141, Attention: Secretary,
(iii) in the case of the Trustee: 450 West 33rd Street, 14th Floor,
New York, New York 10001, Attention: Capital Markets Fiduciary
Services, Deutsche Floorplan Receivables,
and replacing them with the phrases:
(i) in the case of LLC, 655 Maryville Centre Drive, St. Louis,
Missouri, 63141, Attention: Manager,
(iii) in the case of the Trustee, 1100 N. Market Street, Wilmington,
Delaware 19890, Attention: Corporate Trust Administration.
(b) The definition of "Facility Account" in Section 1.1 of the Series
2000-4 Supplement is hereby amended in its entirety to read as follows:
3 First Omnibus Amendment - CDF
"Facility Account" shall mean a bank account specified by the
Administrative Agent upon ten (10) days' prior written notice to the
Trustee, the Managing Agents, the Seller and the Servicer from time
to time.
(c) All references in the Agreements to "the Deutsche FRLP Certificate"
are hereby deleted and replaced with a reference to "the LLC Certificate".
SECTION 5. References to the Uniform Commercial Code/State of Missouri.
(a) Clause (m) of the definition "Eligible Receivable" in Section 1.1 of
the PSA is hereby amended by replacing the reference to "State of Missouri" with
"applicable jurisdiction".
(b) Section 2.1 of the PSA is hereby amended by replacing all references
to "State of Missouri" with "applicable jurisdiction".
(c) Section 2.1 of the PSA is hereby amended by replacing all references
therein to "Section 9-306 of the UCC" with "the UCC", and by replacing the
reference therein to "9-105 of the UCC" with "the UCC".
SECTION 6. References to Partnership.
(a) Sections 2.3 and 2.6(k) of the PSA are hereby amended by replacing
all references therein to "limited partnership" with "limited liability company"
and by replacing all references therein to "partnership" with "limited liability
company".
(b) Section 2.6(f) of the PSA is hereby amended by replacing the phrase
"limited partnerships" with "limited liability companies".
(c) Section 2.6(j) of the PSA is hereby amended in its entirety to read
as follows:
"(j) Merger, Etc. The Seller shall not (i) enter into any
transaction of merger or consolidation unless (A) the surviving
Person of such merger or consolidation assumes all of the Seller's
obligations under this Agreement, (B) the Seller shall have given
the Rating Agencies and the Trustee at least 10 days' prior notice
and the Rating Agency Condition shall have been satisfied with
respect to such transaction and (C) such merger or consolidation
does not conflict with any provisions of the limited liability
company agreement of the Seller, or (ii) terminate, liquidate or
dissolve itself (or suffer any termination, liquidation or
dissolution), or (iii) acquire or be acquired by any Person, or (iv)
otherwise make (or suffer) any material change in the organization
of or method of conducting its business."
(d) Section 7.3 of the PSA is hereby amended by replacing the phrase
"Seller's agreement of limited partnership" with "Seller's limited liability
company agreement".
SECTION 7. Series 2000-4 Supplement.
4 First Omnibus Amendment - CDF
(a) The definition of "Excess Servicing" in Section 2.1 of the Series
2000-4 Supplement is hereby amended by replacing "Section 4.6(a)(ix)" with
"Section 4.6(a)(x)".
(b) Section 9.8 of the Series 2000-4 Supplement is hereby amended by
deleting the last sentence of the Section and by replacing it with the
following:
"Change of Control" shall mean that CDF, the LLC, Deutsche FRLP or
the general partner of Deutsche FRLP shall fail to be owned or
controlled, indirectly or directly, by GECS and/or GECC.
(c) Section 9.11 of the Series 2000-4 Supplement is hereby amended by
replacing each reference therein to "the seller or the general partner of the
Seller" with "the Seller, Deutsche FRLP, or the general partner of Deutsche
FRLP".
SECTION 8. Deutsche Bank AG; Deutsche North America. Except as otherwise
provided in this Amendment, (a) all references to "Deutsche Bank AG" in the
Agreements are hereby deleted and replaced with "GECS" and (b) all references to
"Deutsche North America" in the Agreements are hereby deleted and replaced with
"GECS".
SECTION 9. DFS. All references to "DFS" in the Agreements are hereby
deleted and replaced with "CDF".
SECTION 10. The Chase Manhattan Bank. The parties hereto agree and
acknowledge that WTC has succeeded to The Chase Manhattan Bank as the Trustee
under the Agreements. All references to "The Chase Manhattan Bank" in the
Agreements are hereby deleted and replaced with "Wilmington Trust Company".
SECTION 11. Amendment to Section 2.5(d)(x) of the PSA. Section
2.5(d)(x)(B) is hereby amended by deleting the phrase "less frequently" and
replacing it with the phrase "more frequently".
SECTION 12. Amendment to Section 2.6(k) of the PSA. Section 2.6(k) of the
PSA is hereby amended by adding the following at the end thereof, immediately
prior to the period at the end thereof: "or the Seller Certification Condition
shall have been satisfied with respect thereto. "Seller Certification Condition"
shall mean, with respect to any event, circumstance, matter, or action, that
such event, circumstance, matter or action shall not adversely affect in any
material respect the interests of Investor Certificateholder (as evidenced by an
Officer's Certificate of the Seller)."
SECTION 13. Amendment to Section 11.7(b) of the PSA. Section 11.7(b) of
the PSA is hereby amended by deleting "The Servicer" and "the Servicer" in each
place either such phrase appears and replacing each such phrase with "GECS".
SECTION 14. Amendment to Section 13.4 of the PSA. Section 13.4 of the PSA
is hereby amended in its entirety to read as follows:
"Section 13.4 No Petition. The Servicer, CDF (if it is no longer the
Servicer) and the Trustee (not in its individual capacity but solely as
Trustee), by entering into this Agreement,
5 First Omnibus Amendment - CDF
each Investor Certificateholder, by accepting an Investor Certificate or an
interest in an Investor Certificate, each holder of a Supplemental Certificate
by accepting a Supplemental Certificate, and any Successor Servicer and each
other Beneficiary and each Certificate Owner, by accepting the benefits of this
Agreement, hereby covenants and agrees or is deemed to covenant and agree, that
they shall not at any time institute against, or encourage or solicit any Person
to institute against, the Seller, the Trust, Deutsche FRLP or the general
partner of Deutsche FRLP, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States Federal or state bankruptcy or similar law."
SECTION 15. Amendment to Section 13.5 of the PSA. Section 13.5 of the PSA
is hereby amended in its entirety to read as follows:
"Section 13.5. Governing Law. THIS AGREEMENT AND THE CERTIFICATES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS OF
THE STATE OF NEW YORK)."
SECTION 16. Submission to Jurisdiction. Each of the parties to this
Amendment hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Amendment or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of such action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Person at its
address set forth in Section 13.6 of PSA (or, in the case of Deutsche FRLP, at
its address set forth in the Receivables Contribution and Sale Agreement) or at
such other address notified to the other parties to this Amendment; and
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to sue
in any other jurisdiction.
SECTION 17. Miscellaneous. (a) THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS OF THE STATE OF
NEW YORK).
6 First Omnibus Amendment - CDF
(b) This Amendment may be executed in any number of counterparts and by
the different parties on separate counterparts, each of which when so executed
shall be deemed to be an original and all of which when taken together shall
constitute one and the same Amendment. Executed counterparts of this Amendment
may be delivered by facsimile transmission or other electronic transmission.
(c) The Agreements, as amended hereby, remain in full force and effect.
Any reference to the Agreements after the date hereof shall be deemed to refer
to the Agreements as amended hereby, unless otherwise expressly stated therein.
(d) The section titles contained in this Amendment are and shall be
without substantive meaning or content of any kind whatsoever.
[SIGNATURES FOLLOW]
7 First Omnibus Amendment - CDF
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date and year first-above written.
WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as Trustee
By: Deutsche Bank Trust Company Americas
(f/k/a Bankers Trust Company), as Agent
By: /s/ Louis Bodi
-----------------------------------------------
Name: Louis Bodi
Title: Vice President
|
S-1 First Omnibus Amendment - CDF
GE COMMERCIAL DISTRIBUTION
FINANCE CORPORATION, as Servicer
By: /s/ Joseph B. Thomas
-----------------------------------------------
Name: Joseph B. Thomas
Title: Finance Manager
|
S-2 First Omnibus Amendment - CDF
DEUTSCHE FLOORPLAN RECEIVABLES, L.P., as
Seller
By: DEUTSCHE FLOORPLAN RECEIVABLES,
INC., its general partner
By: /s/ Joseph B. Thomas
-----------------------------------------------
Name: Joseph B. Thomas
Title: Treasurer
|
S-3 First Omnibus Amendment - CDF
CDF FINANCING, L.L.C.
By: /s/ Cristina Harter
-----------------------------------------------
Name: Cristina Harter
Title: Manager
|
S-4 First Omnibus Amendment - CDF
Exhibit 4.7
SECOND OMNIBUS AMENDMENT TO
AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
AND SUPPLEMENTS
THIS SECOND AMENDMENT TO AMENDED AND RESTATED POOLING AND SERVICING
AGREEMENT AND SUPPLEMENTS, dated as of as of April 1, 2003 (this "Amendment"),
is among GE Commercial Distribution Finance Corporation ("CDF"), a Nevada
corporation (formerly known as Deutsche Financial Services Corporation), as
Servicer, Wilmington Trust Company ("WTC") (successor to The Chase Manhattan
Bank), as Trustee, and CDF Financing, L.L.C. ("LLC"), a Delaware limited
liability company.
BACKGROUND
The parties are parties to the following agreements:
1. the Amended and Restated Pooling and Servicing Agreement,
dated as of April 1, 2000, as amended (as so amended, the "PSA") among the
LLC, CDF, as Servicer, and WTC, as Trustee;
2. the Series 2000-2 Supplement, dated as of April 1, 2000, as
amended (as so amended, the "Series 2000-2 Supplement"), among the LLC,
CDF, as Servicer, and WTC, as Trustee; and
3. the Series 2000-4 Supplement, dated as of July 1, 2000, as
amended (as so amended, the "Series 2000-4 Supplement"); the Series 2000-2
Supplement and the Series 2000-4 Supplement may be referred to
collectively as the "Supplements"; the Supplements and the PSA may be
referred to collectively as the "Agreements" and individually as an
"Agreement"), among the LLC, CDF, as Servicer, and WTC, as Trustee.
The parties hereto desire to amend each of the Agreements as set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Definitions. Capitalized terms defined in an Agreement and used
but not otherwise defined herein have the meanings given to them in such
Agreement.
SECTION 2. Section 1.1 of the PSA.
(a) Section 1.1 of the PSA is hereby amended by amending the following
defined terms to read as follows:
"Dealer Overconcentration" shall be determined by the Servicer on
each Determination Date. A Dealer Overconcentration shall exist with
respect to a Dealer (an "Overconcentrated Dealer") if the aggregate
amount of the Principal Receivables owed by such Dealer exceeds the
applicable Dealer Concentration Limit. "Dealer Concentration Limit"
is a dollar amount calculated as a percentage of the Pool Balance as
of the end of each Collection Period (the "Concentration Limit
Percentage"). If the Dealer is among the eight Dealers owing the
largest amount of Principal Receivables as of the end of a
Collection Period (the "Top 8 Dealers"), the Concentration Limit
Percentage is currently two and one-half percent (2.5%). If the
Dealer is not among the Top 8 Dealers, the Concentration Limit
Percentage is currently two percent (2%). The Concentration Limit
Percentage for the Top 8 Dealers, as well as the Concentration Limit
Percentage for the other Dealers, may be increased or decreased from
time to time by the Transferor upon notice to the Trustee and the
Servicer without the consent of any Investor Certificateholder if
the Rating Agency Condition has been satisfied in connection with
that increase or decrease. For purposes of the definitions of Dealer
Overconcentration, Overconcentrated Dealer and Top 8 Dealers, a
Dealer and all of its Affiliates that are Dealers shall be
considered to be a single Dealer. For so long as a Dealer
Overconcentration exists, allocations of Principal Collections,
Non-Principal Collections, Defaulted Amounts and Miscellaneous
Payments related to an Overconcentrated Dealer shall be allocated in
accordance with Section 4.5.
"Manufacturer Overconcentration" on any Determination Date shall
mean, with respect to all Accounts covered by a Floorplan Agreement
with the same Manufacturer as obligor, the excess of (a) the
aggregate of all amounts of Principal Receivables in such Accounts
on the last day of the Collection Period immediately preceding such
Determination Date that are covered by such Floorplan Agreement over
(b) 15% of the Pool Balance on the last day of such immediately
preceding Collection Period (in the case of each of the
Manufacturers that is among the three Manufacturers which are
parties to Floorplan Agreements covering the largest aggregate
amounts of Principal Receivables) or 10% of the Pool Balance on the
last day of such immediately preceding Collection Period (in the
case of Manufacturers other than such top three Manufacturers (or,
in each case, if the Rating Agency Condition is satisfied, such
larger percentage of such Pool Balance as is stated in the notice
from each applicable Rating Agency in connection with the
satisfaction of such Rating Agency Condition).
"Net Receivables Rate" shall mean, with respect to a Payment Date
and unless otherwise specified for a Series in the related
Supplement, (i) the weighted average of the interest rates borne by
the Receivables during the second Collection Period preceding such
Payment Date (interest payments on the Receivables at such rates
being due and payable in the Collection Period preceding such
Payment Date) plus (ii) the product of (x) the Monthly Payment Rate
for the Collection Period preceding such Payment Date, (y) the
Discount Factor for such Payment Date and (z) twelve less (iii) 2%
per annum unless the
2
Monthly Servicing Fee has been waived (other than a deemed waiver)
pursuant to each Supplement, in which case solely, for that Payment
Date, "2% per annum" will be deemed to be replaced by "0% per
annum".
"Product Line Overconcentration" on any Determination Date shall
mean, with respect to Accounts created pursuant to Wholesale
Financing Agreements, the excess of (a) the aggregate of all amounts
of Principal Receivables in such Accounts that represent financing
for a single Product line (according to CDF's classification system)
on the last day of the Collection Period immediately preceding such
Determination Date over (b) (i) twenty-five percent (25%) of the
Pool Balance on the last day of such immediately preceding
Collection Period if such Product line is not recreational vehicles
or boats or boat motors, (ii) thirty-five percent (35%) of that Pool
Balance if that product line is recreational vehicles, or (iii)
thirty-five percent (35%) of that Pool Balance if that product line
is boats or boat motors or, in the case of clause (i), (ii) or
(iii), if the Rating Agency Condition is satisfied, such larger
percentage of such Pool Balance as is stated in the applicable
notice from each applicable Rating Agency in connection with the
satisfaction of such Rating Agency Condition.
"Rating Agency Condition" shall mean, with respect to any action,
that each Rating Agency shall have notified the Transferor or the
Servicer or the Trustee in writing that such action shall not result
in a reduction or withdrawal of such Rating Agency's rating of any
outstanding Series or Class with respect to which it is a Rating
Agency. The Rating Agency Condition shall be inapplicable at any
time that no such Series or Class is outstanding.
"Specified Party" means any of the Transferor, General Electric
Capital Corporation, the Limited Partnership, the Servicer, CDF, if
it is not the Servicer, GECS, so long as CDF is an Affiliate of
GECS, or, if GECS has merged or consolidated with another Person,
the surviving Person (but only so long as CDF is an Affiliate of the
surviving Person) or any other Person which is the direct,
controlling shareholder of CDF.
"Unconcentrated Pool Balance" shall mean, as of the end of any
Collection Period, the lesser of: (1) the Pool Balance at the end of
such Collection Period, and (2)(a)(i) such Pool Balance minus (ii)
the sum of the Principal Receivables in all Accounts of all
Overconcentrated Dealers at the end of such Collection Period,
divided by (b)(i) 100% minus (ii) the sum of (x) the product of (A)
the number of Overconcentrated Dealers as to which the applicable
Concentration Limit Percentage is 2.5% and (B) 2.5%, (y) the product
of (A) the number of Overconcentrated Dealers as to which the
applicable Concentration Limit Percentage is 2% and (B) 2%, and (z)
the product of (A) the number of Overconcentrated Dealers as to
which the applicable Concentration Limit Percentage is other than
2.5% or 2% and (B) in each case, such applicable Concentration Limit
Percentage.
3
(b) The definition of "Eligible Investments" in Section 1.1 of the PSA
is hereby further amended by inserting "and" after the semicolon at the end of
clause (e) thereof, by replacing ", and" at the end of clause (f) thereof with a
period, and by deleting clause (g) thereof.
(c) Section 1.1 of the PSA is hereby further amended by adding the
following terms thereto in appropriate alphabetical order:
"Payment Date" shall mean the fifteenth day of each month or, if
such day is not a Business Day, the next succeeding Business Day.
"Transferor" shall mean CDF Financing, L.L.C., and its successors.
(d) Section 2.4(a) of the PSA is hereby amended by adding the following
new subsection at the end thereof:
"(v) The additional representations and warranties set forth in
Schedule 3 hereto are true and correct."
(e) Section 4.3 of the PSA is hereby amended by adding the following new
paragraph (f) at the end thereof:
"(f) For avoidance of doubt, Collections that are not required by
this Agreement or a Supplement (i) to be held or deposited in a
Trust account, or (ii) to be paid to a Person specified in this
Agreement or a Supplement, may be released to the Transferor."
(f) Subsection 11.14(i) of the PSA is hereby amended by deleting the
words "New York" where they appear in such subsection and replacing them with
the word "Delaware".
(g) Section 11.15 of the PSA is hereby amended by deleting the first
sentence of such section and replacing it with the following sentence:
"The Trustee shall maintain at its expense in Wilmington, Delaware
or New York, New York, an office or offices or agency or agencies
where notices and demands to or upon the Trustee in respect of the
Certificates and this Agreement may be served."
(h) The PSA is hereby amended by adding Schedule 3 attached hereto as
Schedule 3 to the PSA.
(i) Subsection 13.6(a)(iii) of the PSA is hereby amended by inserting
the following phrase at the end of such subsection: "with a copy to Deutsche
Bank Trust Company Americas, as agent, 280 Park Avenue, MS NYC03-0918, New York,
NY 10017 Attention: Corporate Trust & Agency Services / Structured Finance
Group".
SECTION 3. Series 2000-2 Supplement.
Section 6.1(d) of the Series 2000-2 Supplement is hereby amended to
read in its entirety as follows:
4
"(d) on any Determination Date occurring in the months of November
through June, the average of the Monthly Payment Rates for the three
preceding Collection Periods is less than twenty percent (20%) (or a
lower percentage if the Rating Agency Condition has been satisfied
with respect to that lower percentage) or on any Determination Date
occurring in the months of July through October, the average of the
Monthly Payment Rates for the three preceding Collection Periods is
less than twenty-two and one-half percent (22.5%) (or a lower
percentage if the Rating Agency Condition has been satisfied with
respect to that lower percentage); or".
SECTION 4. Series 2000-4 Supplement.
(a) Section 6.1(c) of the Series 2000-4 Supplement is hereby amended to
read in its entirety as follows:
"(c) on any Determination Date occurring in the months of November
through June, the average of the Monthly Payment Rates for the three
preceding Collection Periods is less than twenty percent (20%) (or a
lower percentage if (i) the Rating Agency Condition has been
satisfied with respect to that lower percentage, and (ii) the
Managing Agents shall have consented in writing to such lower
percentage, which consent shall not be unreasonably withheld) or on
any Determination Date occurring in the months of July through
October, the average of the Monthly Payment Rates for the three
preceding Collection Periods is less than twenty-two and one-half
percent (22.5%) (or a lower percentage if (i) the Rating Agency
Condition has been satisfied with respect to that lower percentage,
and (ii) the Managing Agents shall have consented in writing to such
lower percentage, which consent shall not be unreasonably withheld);
or".
(b) Section 6.1(e) of the Series 2000-4 Supplement is hereby amended by
inserting "in" immediately after "amounts on deposit".
SECTION 5. Submission to Jurisdiction. Each of the parties to this
Amendment hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Amendment or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of such action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Person at its
address set forth in Section 13.6 of the PSA or at such other address notified
to the other parties to this Amendment; and
5
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to sue
in any other jurisdiction.
SECTION 6. Distribution Date Statement. The calculations set forth in the
Distribution Date Statement to be delivered for April, 2003 shall be determined
after giving effect to the amendments set forth in this Amendment.
SECTION 7. Miscellaneous. (a) THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS OF THE STATE OF
NEW YORK).
(b) This Amendment may be executed in any number of counterparts and by
the different parties on separate counterparts, each of which when so executed
shall be deemed to be an original and all of which when taken together shall
constitute one and the same Amendment. Executed counterparts of this Amendment
may be delivered by facsimile transmission or other electronic transmission.
(c) The Agreements, as amended hereby, remain in full force and effect.
Any reference to an Agreement (whether in such Agreement or in any other
agreement or document) after the date hereof shall be deemed to refer to such
Agreement as amended hereby, unless otherwise expressly stated therein.
(d) The section titles contained in this Amendment are and shall be
without substantive meaning or content of any kind whatsoever.
[SIGNATURES FOLLOW]
6
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date and year first above written.
WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as Trustee
By: Deutsche Bank Trust Company Americas
(f/k/a Bankers Trust Company), as Agent
By: /s/ Louis Bodi
------------------------------------------
Name: Louis Bodi
Title: Vice President
|
S-1 Second Omnibus Amendment - CDF
GE COMMERCIAL DISTRIBUTION FINANCE
CORPORATION, as Servicer
By: /s/ Walter D. Bay
------------------------------------------
Name: Walter D. Bay
Title: Attesting Secretary
|
S-2 Second Omnibus Amendment - CDF
CDF FINANCING, L.L.C.
By: /s/ Cristina Harter
------------------------------------------
Name: Cristina Harter
Title: Manager
|
S-3 Second Omnibus Amendment - CDF
SCHEDULE 3
Perfection Representations and Warranties
1. General. This Agreement creates a valid and continuing security
interest (as defined in the applicable UCC) in all of the Transferor's right,
title and interest in, to and under (i) the Receivables, (ii) the Collateral
Security and all proceeds thereof, (iii) the Floorplan Agreements and (iv) the
Receivables Contribution and Sale Agreement (clauses (i), (ii), (iii) and (iv)
may be referred to herein as the "Receivables Property") in favor of the
Trustee, which (a) is enforceable against creditors of and purchasers from the
Transferor, as such enforceability may be limited by applicable law, now or
hereafter in effect, and by general principles of equity (whether considered in
a suit at law or in equity), and (b) will be prior to all other Liens (other
than Liens permitted pursuant to paragraph 5 below) in such property.
2. Characterization. The Receivables constitute "accounts", "general
intangibles" or "tangible chattel paper" within the meaning of UCC Section
9-102. The Transferor has taken all steps necessary to perfect its security
interest in the rights of the Limited Partnership in the property securing the
Receivables Property.
3. Creation. Immediately prior to the conveyance of the Receivables
pursuant to this Agreement, the Transferor owns and has good and marketable
title to, or has a valid security interest in the Limited Partnership's rights
in, the Receivables Property free and clear of any Lien, claim or encumbrance of
any Person.
4. Perfection. The Transferor has caused the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security interest
granted to the Trustee under this Agreement in the Transferor's rights in the
Receivables Property.
5. Priority. Other than the security interests granted to the Trustee
pursuant to this Agreement, the Transferor has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Receivables
Property except as permitted by this Agreement. The Transferor has not
authorized the filing of and is not aware of any financing statements against
the Transferor that include a description of collateral covering the Receivables
Property other than any financing statement (i) relating to the security
interests granted to the Trustee under this Agreement, (ii) that has been
terminated, or (iii) that has been granted pursuant to the terms of the Related
Documents. None of the tangible chattel paper that constitutes or evidences the
Receivables has any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than the Trustee. The
Transferor is not aware of any judgment, ERISA or tax lien filings against it.
6. Survival of Perfection Representations. Notwithstanding any other
provision of this Agreement or any other Related Document, the Perfection
Representations contained in this Schedule 3 shall be continuing, and remain in
full force and effect.
3-1
7. No Waiver. The parties to this Agreement: (i) shall not, without
satisfying the Rating Agency Condition, waive any of the representations and
warranties in this Schedule 3 (the "Perfection Representations"); (ii) shall
provide the Rating Agencies with prompt written notice of any breach of the
Perfection Representations, and shall not, without satisfying the Rating Agency
Condition (as determined after any adjustment or withdrawal of the ratings
following notice of such breach) waive a breach of any of the Perfection
Representations.
8. Servicer to Maintain Perfection and Priority. The Servicer covenants
that, in order to evidence the interests of the Transferor and the Trustee under
this Agreement, the Servicer shall take such action, or execute and deliver such
instruments (other than effecting a Filing (as defined below), unless such
Filing is effected in accordance with this paragraph) as may be necessary or
advisable (including such actions as are requested by the Trustee) to maintain
and perfect, as a first priority interest, the Trustee's security interest in
the Transferor's rights in the Receivables Property. The Servicer shall, from
time to time and within the time limits established by law, prepare and present
to the Trustee for the Trustee to authorize (based in reliance on the Opinion of
Counsel hereinafter provided for in this paragraph) the Servicer to file, all
financing statements, amendments, continuations, financing statements in lieu of
a continuation statement, terminations, partial terminations, releases or
partial releases, or any other filings necessary or advisable to continue,
maintain and perfect the Trustee's security interest in the Transferor's rights
in the Receivables Property as a first-priority interest (each a "Filing"). The
Servicer shall present each such Filing to the Trustee together with (x) an
Opinion of Counsel to the effect that such Filing is (i) consistent with grant
of the security interest to the Trustee pursuant to the Section 2.1 of this
Agreement, (ii) satisfies all requirements and conditions to such Filing in this
Agreement and (iii) satisfies the requirements for a Filing of such type under
the UCC in the applicable jurisdiction (or if the UCC does not apply, the
applicable statute governing the perfection of security interests), and (y) a
form of authorization for the Trustee's signature. Upon receipt of such Opinion
of Counsel and form of authorization, the Trustee shall promptly authorize in
writing the Servicer to, and the Servicer shall, effect such Filing under the
UCC. Notwithstanding anything else in this Agreement to the contrary, the
Servicer shall not have any authority to effect a Filing without obtaining
written authorization from the Trustee in accordance with this paragraph (8).
Any reference in this Schedule to the Rating Agency Condition shall be
construed as if Standard & Poor's were the only Rating Agency.
3-2
Exhibit 4.8
CDF FINANCING, L.L.C.,
as Transferor,
GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION,
as Servicer,
and
WILMINGTON TRUST COMPANY,
as Trustee
SERIES 2004-NTC SUPPLEMENT
Dated as of [ ], 2004
to
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2000
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
SERIES 2004-NTC
Series 2004-NTC Supplement
TABLE OF CONTENTS
PAGE
ARTICLE I CREATION OF THE SERIES 2004-NTC CERTIFICATE............................................... 1
SECTION 1.1 DESIGNATION....................................................................... 1
ARTICLE II Definitions............................................................................... 1
SECTION 2.1 DEFINITIONS....................................................................... 1
ARTICLE III Servicing Fee............................................................................. 9
SECTION 3.1 Servicing Compensation............................................................ 9
SECTION 3.2 Servicer Advances................................................................ 10
ARTICLE IV RIGHTS OF SERIES 2004-NTC CERTIFICATEHOLDER AND ALLOCATION AND APPLICATION OF
COLLECTIONS.............................................................................. 10
SECTION 4.1 Allocations; Payments to Transferor.............................................. 10
SECTION 4.2 Monthly Interest; Determination of Certificate Rate.............................. 10
SECTION 4.3 Determination of Monthly Principal............................................... 11
SECTION 4.4 Establishment of [Reserve Fund and] Funding Accounts............................. 11
SECTION 4.5 Deficiency Amount................................................................ 13
SECTION 4.6 Application of Investor Non-Principal Collections, Investment Proceeds,
Servicer Advances and Available Investor Principal Collections................... 14
SECTION 4.7 Payments to Series 2004-NTC Certificateholder.................................... 15
SECTION 4.8 Application of Reserve Fund...................................................... 16
SECTION 4.9 Investor Charge-Offs............................................................. 16
SECTION 4.10 Transferor Amount................................................................ 17
SECTION 4.11 Excess Principal Collections..................................................... 17
ARTICLE V PAYMENT AND REPORTS TO SERIES 2004-NTC CERTIFICATEHOLDER................................. 17
SECTION 5.1 Payments......................................................................... 17
SECTION 5.2 Reports and Statements to Series 2004-NTC Certificateholder...................... 17
ARTICLE VI EARLY AMORTIZATION EVENTS................................................................ 18
SECTION 6.1 Additional Early Amortization Events............................................. 18
ARTICLE VII OPTIONAL REPURCHASE...................................................................... 19
SECTION 7.1 Optional Repurchase............................................................... 19
ARTICLE VIII FINAL PAYMENTS........................................................................... 20
|
-i- Series 2004-NTC Supplement
TABLE OF CONTENTS
(continued)
PAGE
SECTION 8.1 Sale of Certificateholder's Interest Pursuant to Section 2.3 of the
Agreement; Payments Pursuant to Section 7.1 of this Series Supplement or
Section 2.3 or 12.2(c) of the Agreement.......................................... 20
SECTION 8.2 Payment of Proceeds of Sale, Disposition or Liquidation of the
Receivables Pursuant to Section 9.2 of the Agreement............................. 20
ARTICLE IX MISCELLANEOUS PROVISIONS................................................................. 21
SECTION 9.1 Securities Law Filings........................................................... 21
SECTION 9.2 Ratification of Agreement........................................................ 21
SECTION 9.3 Counterparts..................................................................... 21
SECTION 9.4 Governing Law.................................................................... 21
SECTION 9.5 [reserved]....................................................................... 21
SECTION 9.6 The Trustee; Paying Agent; Transfer Agent and Registrar.......................... 21
SECTION 9.7 Instructions in Writing.......................................................... 22
SECTION 9.8 [Initial Funding of Reserve Fund................................................. 22
SECTION 9.9 Severability; Certificate Rate Limitation........................................ 22
SECTION 9.10 Headings......................................................................... 22
EXHIBIT A FORM OF NOTE TRUST CERTIFICATE
EXHIBIT B FORM OF PAYMENT DATE STATEMENT
SCHEDULE 1 SERIES 2004-NTC ACCOUNTS
|
-ii- Series 2004-NTC Supplement
SERIES 2004-NTC SUPPLEMENT dated as of [ ], 2004 (this "Series
Supplement"), among CDF FINANCING, L.L.C., a Delaware limited liability company,
as Transferor, GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION, a Nevada
corporation, as Servicer, and WILMINGTON TRUST COMPANY, as successor to The
Chase Manhattan Bank, as Trustee.
Pursuant to Section 6.3 of the Amended and Restated Pooling and Servicing
Agreement, dated as of April 1, 2000 (as amended, the "Agreement"), among the
Transferor, the Servicer and the Trustee, the Transferor may from time to time
direct the Trustee to issue, on behalf of the Trust, one or more new Series of
Investor Certificates.
Pursuant to this Series Supplement, the Transferor and the Trustee shall
create a new Series of Investor Certificates and specify the Principal Terms
thereof.
ARTICLE I
Creation of the Series 2004-NTC Certificate
SECTION 1.1 Designation.
(a) There is hereby created a Series of Investor Certificates to be issued
pursuant to the Agreement and this Series Supplement to be known as the "Note
Trust Certificate" or the "Series 2004-NTC Certificate", which shall consist of
one Class.
(b) In the event that any term or provision contained herein shall
conflict with or be inconsistent with any term or provision contained in the
Agreement, the terms and provisions of this Series Supplement shall govern.
ARTICLE II
Definitions
SECTION 2.1 Definitions.
(a) Whenever used in this Series Supplement the following words and
phrases shall have the following meanings:
"Accumulation Period" shall mean, unless an Early Amortization Event shall
have occurred prior thereto (other than an Early Amortization Event which has
resulted in an Early Amortization Period which has ended as described in clause
(c) of the definition of Early Amortization Period in the Agreement), the period
commencing on the Accumulation Period Commencement Date and ending upon the
earlier of (a) the commencement of an Early Amortization Period and (b) the
Expected Final Payment Date.
"Accumulation Period Commencement Date" shall mean the first day of the
calendar month which is the fifth calendar month prior to the calendar month in
which the Expected Final Payment Date occurs; provided, however, that upon
written notice to the Trustee, the Servicer may elect to postpone the
Accumulation Period Commencement Date so that the number of
Series 2004-NTC Supplement
months included in the Accumulation Period shall equal or exceed the
Accumulation Period Length; provided, further, that such election shall only be
permitted if the Accumulation Period Length is less than five months and that
the Accumulation Period Commencement Date shall not be postponed beyond the
first day of the calendar month which is the second calendar month prior to the
calendar month in which the Expected Final Payment Date occurs.
"Accumulation Period Length" shall mean, as determined by the Servicer on
each Determination Date, beginning with the Determination Date occurring in the
calendar month which is the sixth calendar month prior to the calendar month in
which the Expected Final Payment Date occurs, the number of calendar months that
the Servicer expects to be required so that sufficient funds are on deposit in
the Principal Funding Account no later than the Expected Final Payment Date to
pay the outstanding principal balance of the Series 2004-NTC Certificate, based
on (a) the expected monthly collections of Principal Receivables expected to be
distributable to the Series 2004-NTC Certificateholder assuming a principal
payment rate no greater than the lowest Monthly Payment Rate on the Receivables
for the preceding three months, so that, for example, if the lowest Monthly
Payment Rate for that preceding three month period is 50% or more, the number of
calendar months required would be two; if the lowest Monthly Payment Rate for
that preceding three month period is between 33.33% and 50%, the number of
calendar months required would be three; if the lowest Monthly Payment Rate for
that preceding three month period is between 25% and 33.33%, the number of
calendar months required would be four; and if the lowest Monthly Payment Rate
for that preceding three month period is between 20% and 25%, the number of
calendar months required would be five; and (b) the amount of principal expected
to be distributable to Investor Certificateholders of other Series which are
expected to be in their accumulation or amortization periods during the
Accumulation Period; provided, that in the event that no other Series are
expected to be in their accumulation or amortization periods during the
Accumulation Period, then the Servicer shall have the right to designate a
shorter Accumulation Period Length than would be otherwise required by this
definition of Accumulation Period Length.
"Additional Early Amortization Event" shall have the meaning specified in
Section 6.1.
"Additional Interest" shall have the meaning specified in Section 4.2(a).
"Adjustment Date" shall mean, with respect to any Interest Period, the
second London Business Day preceding such Interest Period; provided, that with
respect to the first Interest Period, the Adjustment Date shall be the Closing
Date.
"Allocable Miscellaneous Payments" shall mean, with respect to any Payment
Date, the product of (a) a fraction, the numerator of which is the Series
2004-NTC Allocation Percentage for the related Collection Period and the
denominator of which is the sum of the series allocation percentages for all
Series not in their revolving periods, and (b) Miscellaneous Payments with
respect to the related Collection Period.
"Available Investor Principal Collections" shall mean, with respect to any
Payment Date, the sum of (a) an amount equal to Investor Principal Collections
for such Payment Date, (b) Allocable Miscellaneous Payments with respect to such
Payment Date, and (c) on the Termination Date, any funds in the Reserve Fund
after giving effect to Section 4.8.
2 Series 2004-NTC Supplement
["Certificate Rate" shall mean, for an Interest Period and the Payment
Date immediately following such Interest Period, a rate per annum equal to LIBOR
plus [ ] basis points ([ ]%) per annum.]
"Closing Date" shall mean [ ], 2004.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Controlled Accumulation Amount" shall mean the quotient obtained by
dividing the Invested Amount as of the Determination Date on which the
Accumulation Period Length is determined (after giving effect to any changes
therein on such date) by the number of months comprising the Accumulation Period
Length.
"Controlled Deposit Amount" shall mean, for any Payment Date with respect
to the Accumulation Period, the excess, if any, of (i) the product of the
Controlled Accumulation Amount and the number of Payment Dates from and
including the first Payment Date during the Accumulation Period through and
including such Payment Date over (ii) the sum of amounts on deposit in the
Principal Funding Account, in each case before giving effect to any withdrawals
from or deposits to such accounts on such Payment Date.
"Current Payment Date" shall have the meaning specified in Section 4.5.
"Deficiency Amount" shall have the meaning specified in Section 4.5.
"Early Amortization Event" shall mean any Early Amortization Event
specified in Section 9.1 of the Agreement, together with any Additional Early
Amortization Event specified in Section 6.1 of this Series Supplement.
"Early Amortization Period" shall mean an Early Amortization Period (as
defined in the Agreement) with respect to Series 2004-NTC.
"Excess Principal Collections" shall have the meaning specified in Section
4.6(b).
"Expected Final Payment Date" shall mean the [July 2006] Payment Date.
"Floating Allocation Percentage" shall mean, with respect to any
Collection Period, the percentage equivalent (which percentage shall never
exceed 100%) of a fraction, the numerator of which is the Invested Amount as of
the last day of the immediately preceding Collection Period and the denominator
of which is the Unconcentrated Pool Balance as of such last day; provided,
however, for the Collection Period in which the Closing Date occurs, the
Floating Allocation Percentage shall mean the percentage equivalent of a
fraction, the numerator of which is the sum of the initial principal balance of
the Series 2004-NTC Certificate and the denominator of which is the
Unconcentrated Pool Balance on the last day of the Collection Period immediately
preceding the Closing Date.
"Initial Invested Amount" shall mean, for any date, the result of (a) the
Pool Balance (as defined in the Agreement), minus (b) the aggregate Invested
Amount (as defined in the
3 Series 2004-NTC Supplement
Agreement) of all Series (other than Series 2004-NTC) then outstanding, minus
(c) the Required Participation Amount (as defined in the Agreement).
"Initial Servicer" shall mean CDF.
["Interest Funding Account" shall have the meaning specified in Section
4.4(b).]
["Interest Period" shall mean, with respect to any Payment Date, the
period from and including the Payment Date immediately preceding such Payment
Date (or, in the case of the first Payment Date, from and including the Closing
Date) to, but excluding, such Payment Date.]
"Interest Shortfall" shall have the meaning specified in Section 4.2(a).
"Invested Amount" shall mean, for any date, an amount equal to (i) the
Initial Invested Amount, minus (ii) the aggregate amount of Monthly Principal
paid to the Series 2004-NTC Certificateholder prior to such date, minus (iii)
the aggregate amount of all unreimbursed Investor Charge-Offs; provided, that
the Invested Amount shall not be less than zero [and shall not be greater than
six billion dollars ($6,000,000,000)].
"Investment Proceeds" shall mean, with respect to any Payment Date, all
interest and other investment earnings (net of losses and investment expenses)
on the related Determination Date on funds on deposit in the Series 2004-NTC
Accounts, together with an amount equal to the Series 2004-NTC Allocation
Percentage of the interest and other investment earnings (net of losses and
investment expenses) on funds held in the Collection Account credited as of the
related Determination Date to the Collection Account pursuant to Section 4.2 of
the Agreement.
"Investor Certificateholder" shall have the meaning specified in the
Agreement.
"Investor Charge-Off" shall have the meaning specified in Section 4.9.
"Investor Default Amount" shall mean, with respect to any Payment Date, an
amount equal to the product of (a) the Defaulted Amount for the related
Collection Period, after giving effect to any allocation of any portion of that
Defaulted Amount to the Dealer Overconcentration Series, and (b) the Floating
Allocation Percentage for the related Collection Period.
"Investor Non-Principal Collections" shall mean, with respect to any
Payment Date, an amount equal to the product of (i) the Floating Allocation
Percentage for the related Collection Period and (ii) Non-Principal Collections
deposited in the Collection Account for the related Collection Period after
giving effect to any allocations to the Dealer Overconcentration Series for such
Collection Period.
"Investor Principal Collections" shall mean, with respect to any Payment
Date, the sum of (a) the product of (i) the Floating Allocation Percentage, with
respect to the Revolving Period, or the Principal Allocation Percentage, with
respect to the Accumulation Period or an Early Amortization Period, for the
related Collection Period (or the portion of the Collection Period which occurs
as part of the first Collection Period during an Early Amortization Period), and
(ii) Principal Collections for the related Collection Period after giving effect
to any allocations to the Dealer Overconcentration Series for such Collection
Period and (b) the amount, if any, of
4 Series 2004-NTC Supplement
Non-Principal Collections to be allocated with respect to the Investor Default
Amount or unreimbursed Investor Charge-Offs pursuant to Section 4.6(a)(iv) or
4.6(a)(v); provided, that in the case of clause (a), if for any Payment Date the
sum of the Floating Allocation Percentage (if the Revolving Period is in
effect), the Principal Allocation Percentage (if the Early Amortization Period
or the Accumulation Period is in effect), the floating allocation percentages
for all other outstanding Series of Investor Certificates in their revolving
periods and the principal allocation percentages for all other outstanding
Series of Investor Certificates in their early amortization or accumulation
periods exceeds 100%, then, after giving effect to any allocations to the Dealer
Overconcentration Series, Principal Collections shall be allocated among all
Series (including Series 2004-NTC) pari passu and pro rata on the basis of such
floating allocation percentages and principal allocation percentages.
["LIBOR" shall mean, with respect to any Interest Period, the offered
rates for deposits in United States dollars having a maturity of one month (the
"Index Maturity") commencing on the related Adjustment Date which appears on the
Telerate Page 3750 as reported by Bloomberg Financial Markets Commodities News
(or other such page as may replace Telerate Page 3750 for the purpose of
displaying comparable rates) as of approximately 11:00 A.M., London time, on the
date of calculation as determined by the Trustee. If at least two such offered
rates appear on the Telerate Page 3750, LIBOR shall be the arithmetic mean
(rounded upwards, if necessary, to the nearest seven decimals) of such offered
rates. If fewer than two such offered rates appear, LIBOR with respect to such
Interest Period shall be determined at approximately 11:00 A.M., London time, on
such Adjustment Date on the basis of the rate at which deposits in United States
dollars having the Index Maturity are offered to prime banks in the London
interbank market by four major banks in the London interbank market selected by
the Trustee and in a principal amount equal to an amount of not less than U.S.
$1,000,000 and that is representative for a single transaction in such market at
such time. The Trustee shall request the principal London office of each of such
banks to provide a quotation of its rate. If at least two such banks quote rates
to the Trustee, LIBOR shall be the arithmetic mean (rounded upwards, if
necessary, as aforesaid) of such quotations. If fewer than two of such banks
quote rates to the Trustee, LIBOR with respect to such Interest Period shall be
the arithmetic mean (rounded upwards, if necessary, as aforesaid) of the rates
quoted at approximately 11:00 A.M., New York City time, on such Adjustment Date
by three major banks in New York, New York selected by the Trustee for loans in
United States dollars to leading European banks having the Index Maturity and in
a principal amount equal to an amount of not less than U.S. $1,000,000 and that
is representative for a single transaction in such market at such time;
provided, however, that if the banks selected as aforesaid are not providing
quotations as mentioned in this sentence, LIBOR in effect for the applicable
period shall be LIBOR in effect for the previous period.]
["London Business Day" shall mean any business day on which dealings in
deposits in United States dollars are transacted in the London interbank
market.]
["Monthly Interest" shall have the meaning specified in Section 4.2.]
"Monthly Principal" shall have the meaning specified in Section 4.3.
"Monthly Servicing Fee" shall have the meaning specified in Section 3.1.
5 Series 2004-NTC Supplement
"Note Trust" shall mean GE Dealer Floorplan Master Note Trust, a Delaware
statutory trust.
"Note Trust Certificate" shall have the meaning specified in Section
1.1(a).
"Payment Date" shall mean the fifteenth day of each month or, if such day
is not a Business Day, the next succeeding Business Day.
"Payment Date Statement" shall have the meaning specified in Section
5.2(a).
["Pool Factor" shall mean, with respect to any Determination Date, a
number carried out to eleven decimals representing the ratio of the [Invested
Amount] of the Series 2004-NTC Certificate as of such Determination Date
(determined after taking into account any reduction in the [Invested Amount] of
the Series 2004-NTC Certificate which shall occur on the following Payment Date)
to the [Invested Amount] of the Series 2004-NTC Certificate on the Closing Date.
"Principal Allocation Percentage" shall mean, with respect to any
Collection Period, the percentage equivalent (which percentage shall never
exceed 100%) of a fraction, the numerator of which is the Invested Amount as of
the last day of the Revolving Period and the denominator of which is the
Unconcentrated Pool Balance as of the last day of the immediately preceding
Collection Period.
"Principal Funding Account" shall have the meaning specified in Section
4.4(c).
"Reassignment Amount" shall mean, with respect to any Payment Date, after
giving effect to any deposits and payments otherwise to be made on such Payment
Date, the sum of (i) the Invested Amount on such Payment Date and (ii) the
amounts distributable pursuant to Section 4.7(a)(i).
"Required Participation Percentage" shall mean, with respect to Series
2004-NTC, [ ] percent ([ ]%); provided, however, that the Transferor may, upon
ten (10) days' prior notice to the Trustee, each Rating Agency and any
Enhancement Provider, reduce the Required Participation Percentage to a
percentage which shall not be less than 100%; provided, further, however, that
the Rating Agency Condition is satisfied.
["Reserve Fund" shall have the meaning specified in Section 4.4(a).]
["Reserve Fund Deposit Amount" shall mean, with respect to any Payment
Date, the amount, if any, by which (i) the Reserve Fund Required Amount for such
Payment Date exceeds (ii) the amount of funds in the Reserve Fund after giving
effect to any withdrawals therefrom on such Payment Date.]
["Reserve Fund Required Amount" shall mean, with respect to any Payment
Date, an amount equal to the product of (a) [ ] percent ([ ]%) and (b) the
aggregate outstanding principal balance of the Series 2004-NTC Certificate as of
such Payment Date (after giving effect to any changes therein on such Payment
Date).]
6 Series 2004-NTC Supplement
"Revolving Period" shall mean the period beginning at the opening of
business on the Closing Date and ending on the earlier of (a) the close of
business on the day immediately preceding the Accumulation Period Commencement
Date, and (b) the close of business on the day an Early Amortization Period
commences; provided, however, that, if any Early Amortization Period ends as
described in clause (c) of the definition of Early Amortization Period in the
Agreement, the Revolving Period shall recommence as of the close of business on
the day such Early Amortization Period ends.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series 2004-NTC" shall mean the Series of Investor Certificates, the
terms of which are specified in this Series Supplement.
"Series 2004-NTC Accounts" shall have the meaning specified in Section
4.4(e).
"Series 2004-NTC Allocation Percentage" for a Collection Period shall mean
the percentage equivalent of a fraction, the numerator of which is the Invested
Amount on the last Business Day of the Collection Period immediately preceding
such Collection Period and the denominator of which is the Trust Invested Amount
on such last Business Day. The Series 2004-NTC Allocation Percentage is the
"Series Allocation Percentage" for Series 2004-NTC for purposes of the
Agreement.
"Series 2004-NTC Certificateholder" shall mean initially, CDF Funding,
Inc., a Delaware corporation, and, after giving effect to the transfer of the
Series 2004-NTC Certificate by CDF Funding, Inc. to the Note Trust, shall mean
the Note Trust.
"Series 2004-NTC Certificateholder's Interest" shall mean that portion of
the Certificateholders' Interest evidenced by the Series 2004-NTC Certificate.
"Series 2004-NTC Certificate" shall mean the Series 2004-NTC Certificate
executed by the Transferor and authenticated by the Trustee, substantially in
the form of Exhibit A.
"Series 2004-NTC Excess Principal Collection" shall mean that portion of
Excess Principal Collections allocated to Series 2004-NTC pursuant to Section
4.11.
"Series 2004-NTC Monthly Servicing Fee" shall have the meaning specified
in Section 3.1.
"Series 2004-NTC Principal Shortfall" with respect to any Payment Date,
shall equal the excess of (i) (x) for any Payment Date with respect to the
Accumulation Period, the Controlled Deposit Amount or (y) for any Payment Date
with respect to an Early Amortization Period, the Invested Amount, over (ii)
Available Investor Principal Collections for such Payment Date (excluding any
portion thereof attributable to Excess Principal Collections).
"Servicer Advance" shall have the meaning specified in Section 3.2.
"Servicing Fee Rate" shall mean, with respect to Series 2004-NTC, [ ]
percent ([ ]%).
7 Series 2004-NTC Supplement
"Special Payment Date" shall mean each Payment Date with respect to an
Early Amortization Period (other than an Early Amortization Period that has
ended as described in clause (c) of the definition of Early Amortization Period
in the Agreement).
"Telerate Page 3750" shall mean the display designated as page 3750 on
Telerate (or such other page as may replace such page on that service for the
purpose of displaying London interbank offered rates of major banks).
"Termination Date" for Series 2004-NTC shall mean the [July 2008] Payment
Date.
"Termination Proceeds" shall mean any proceeds arising out of a sale of
Receivables (or interests therein) pursuant to Section 12.2(c) of the Agreement
with respect to Series 2004-NTC.
"Transferor" shall mean CDF Financing, L.L.C. and its successors.
"Transferor Amount" shall mean, with respect to any Payment Date, the
amount, if any, specified pursuant to Section 4.6(a)(vi) with respect to such
Payment Date.
"Transferor's Interest" shall mean the interest in the Trust not allocated
to the Certificateholders' Interest.
(b) Notwithstanding anything to the contrary in this Series Supplement or
the Agreement, the term "Rating Agency" shall mean, whenever used in this Series
Supplement or the Agreement with respect to Series 2004-NTC, [Standard & Poor's,
Moody's and Fitch]. As used in this Series Supplement and in the Agreement with
respect to Series 2004-NTC, "highest investment category" shall mean [(i) in the
case of Standard & Poor's, AAA and A-1+, as applicable, (ii) in the case of
Moody's, Aaa and P-1, as applicable, and (iii) in the case of Fitch, AAA and
F-1+, as applicable].
(c) All capitalized terms used herein and not otherwise defined herein
have the meanings ascribed to them in the Agreement. The definitions in Section
2.1 are applicable to the singular as well as the plural forms of such terms and
to the masculine as well as to the feminine and neuter genders of such terms.
(d) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Series Supplement shall refer to this Series Supplement
as a whole and not to any particular provision of this Series Supplement;
references to any Article, Section or Exhibit are references to Articles,
Sections and Exhibits in or to this Series Supplement unless otherwise
specified; and the term "including" means "including without limitation".
(e) All references to any agreement (including the Agreement) shall be
understood to be references to such agreement as it may be amended, amended and
restated or otherwise modified from time to time.
8 Series 2004-NTC Supplement
ARTICLE III
Servicing Fee
SECTION 3.1 Servicing Compensation.
(a) A monthly servicing fee for Series 2004-NTC (the "Monthly Servicing
Fee") shall be payable to the Servicer, in arrears, on each Payment Date in
respect of any Collection Period (or portion thereof) occurring prior to the
first Payment Date on which the Invested Amount is zero, in an amount equal to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the product of
(i) the Series 2004-NTC Allocation Percentage and (ii) the Pool Balance as of
the last day of the second Collection Period preceding such Payment Date. The
share of the Monthly Servicing Fee allocable to the Series 2004-NTC
Certificateholder with respect to any Payment Date (the "Series 2004-NTC Monthly
Servicing Fee") shall be equal to one-twelfth of the product of (a) the
Servicing Fee Rate and (b) the Invested Amount as of the last day of the second
Collection Period preceding such Payment Date and shall be payable in the manner
set forth in Section 4.6 and Section 4.10; provided, however, that with respect
to the first Payment Date for Series 2004-NTC, clause (b) of this sentence shall
be deemed to refer to the Invested Amount on the Closing Date. Notwithstanding
the foregoing, with respect to the first Payment Date for Series 2004-NTC, each
reference in the preceding sentences of this Section to one-twelfth shall be
deemed to be replaced by a fraction, the numerator of which is the number of
days from but excluding the Closing Date to and including the last day of the
month in which the Closing Date occurs and the denominator of which is 360.
(b) The remainder of the Monthly Servicing Fee shall be paid by the
Transferor and in no event shall the Trust, the Trustee or the Series 2004-NTC
Certificateholder be liable for the share of the Monthly Servicing Fee to be
paid by the Transferor; and the remainder of the Servicing Fee shall be paid by
the Transferor and the Investor Certificateholders of other Series, the Trustee
and the Series 2004-NTC Certificateholder shall in no event be liable for the
share of the Servicing Fee to be paid by the Transferor or the Investor
Certificateholders of other Series. The Series 2004-NTC Monthly Servicing Fee
shall be payable to the Servicer solely to the extent amounts are available for
payment in accordance with the terms of this Series Supplement or to the extent
that amounts may be netted with respect thereto in accordance with the terms of
this Series Supplement or the Agreement.
[(c) The Servicer shall be permitted, in its sole discretion, to waive the
Monthly Servicing Fee for any Payment Date, in whole or in part, by notice to
the Trustee on or before the related Determination Date; provided, that the
Servicer reasonably believes that sufficient Non-Principal Collections shall be
available on any future Payment Date to pay the waived portion of Monthly
Servicing Fee. The waived portion of such Monthly Servicing Fee shall be paid on
a future Payment Date to the extent amounts are available therefor pursuant to
Section 4.10(a) or to the extent that amounts may be netted with respect thereto
in accordance with the terms of this Series Supplement or the Agreement;
provided, however, that, to the extent any such waived Monthly Servicing Fee is
so paid, the related portion of the Monthly Servicing Fee to be paid by the
Transferor shall be paid by the Transferor to the Servicer.]
9 Series 2004-NTC Supplement
[(d) If the Servicer is the Initial Servicer, and payment of any portion
of the Monthly Servicing Fee to the Initial Servicer on a Payment Date would
require a withdrawal from the Reserve Fund, then absent affirmative notice to
the Trustee by the Initial Servicer to the contrary, the Initial Servicer shall
be deemed to have waived payment of that portion on that Payment Date; provided,
that a deemed waiver described in this sentence shall not occur on more than
[two] Payment Dates in any twelve month period and shall not occur on any [two]
consecutive Payment Dates.]
SECTION 3.2 Servicer Advances. On or before each Payment Date, the
Servicer will have the right, but not the obligation, to deposit into the
Collection Account as an advance (a "Servicer Advance") an amount equal to the
amount of interest due but unpaid on any Receivable for the related Collection
Period (but only to the extent that the Servicer reasonably expects to recover
that Servicer Advance from subsequent payments on that delinquent Receivable).
No Servicer Advance shall be made by the Servicer for the principal portion of
the Receivables or for Defaulted Receivables. The Servicer shall reimburse
itself for a Servicer Advance on the subsequent Determination Date or Payment
Date (and, if necessary, on other Determination Dates or Payment Dates) out of
funds collected on all Receivables prior to the deposit of funds in the
Collection Account.
ARTICLE IV
Rights of Series 2004-NTC Certificateholder and
Allocation and Application of Collections
SECTION 4.1 Allocations; Payments to Transferor.
(a) Subject to Section 4.3(c) of the Agreement, and after giving effect to
any allocations to the Dealer Overconcentration Series, Collections of
Non-Principal Receivables and Principal Receivables, Miscellaneous Payments and
Defaulted Amounts, as they relate to Series 2004-NTC, shall be allocated and
distributed as set forth in this Article IV.
(b) The Servicer shall instruct the Trustee to withdraw from the
Collection Account and pay (and the Trustee shall so withdraw and pay) to the
Transferor on each Deposit Date any funds not required to be held therein (or
not required to be transferred from the Collection Account to a deposit account
for the benefit of Investor Certificateholders of any Series).
The withdrawals to be made from the Collection Account pursuant to this
Section 4.1(b) do not apply to deposits into the Collection Account that do not
represent Collections, including Miscellaneous Payments, payment of the purchase
price for the Certificateholders' Interest pursuant to Section 2.3 of the
Agreement, payment of the purchase price for the Series 2004-NTC
Certificateholder's Interest pursuant to Section 7.1 of this Series Supplement
and proceeds from the sale, disposition or liquidation of Receivables pursuant
to Section 9.2 or 12.2 of the Agreement.
SECTION 4.2 [Monthly Interest; Determination of Certificate Rate.
(a) "Monthly Interest" with respect to the Series 2004-NTC Certificate on
any Payment Date shall be an amount equal to the product of (i) the Certificate
Rate, (ii) a fraction
10 Series 2004-NTC Supplement
the numerator of which is the actual number of days in the related Interest
Period and the denominator of which is 360, and (iii) (A) the Invested Amount as
of the close of business on the preceding Payment Date (after giving effect to
all Monthly Principal paid to the Series 2004-NTC Certificateholder on such
preceding Payment Date, if any) or (B) in the case of the first Payment Date
with respect to Series 2004-NTC, the Invested Amount as of the Closing Date.
Interest on the Invested Amount shall be payable to the Series 2004-NTC
Certificateholder on each Payment Date.
On the Determination Date preceding each Payment Date, the Servicer shall
determine the excess, if any (the "Interest Shortfall"), of (x) the Monthly
Interest for the Interest Period applicable to such Payment Date over (y) the
amount which shall be available to be paid to the Series 2004-NTC
Certificateholder as Monthly Interest from the Interest Funding Account on such
Payment Date pursuant to this Series Supplement. "Additional Interest" shall
mean, as of any Payment Date, an amount equal to the product of (i) the
Certificate Rate for the Interest Period then ended, (ii) a fraction the
numerator of which is the actual number of days in that Interest Period and the
denominator of which is 360, and (iii) the Interest Shortfall, if any, for the
previous Payment Date. Notwithstanding anything to the contrary herein,
Additional Interest shall be payable to the Interest Funding Account or
distributed to the Series 2004-NTC Certificateholder only to the extent
permitted by applicable law.
(b) The Trustee shall determine the Certificate Rate for each Interest
Period on the Determination Date immediately preceding each Interest Period. The
Trustee shall notify the Servicer and the Listing Agent on each Adjustment Date
of the Trustee's determination of LIBOR. The establishment of LIBOR on each
Adjustment Date (or in the case of the date specified in the proviso to the
definition of Adjustment Date, promptly following such date) by the Trustee and
the Trustee's calculation of the Certificate Rate shall (in the absence of
manifest error) be final and binding.]
SECTION 4.3 Determination of Monthly Principal. The amount of monthly
principal ("Monthly Principal") payable with respect to the Series 2004-NTC
Certificate on each Payment Date with respect to an Early Amortization Period
and the Accumulation Period shall be equal to the Available Investor Principal
Collections with respect to such Payment Date; provided, however, that for each
Payment Date with respect to the Accumulation Period, Monthly Principal, at the
option of the Transferor, may be increased to include amounts otherwise payable
or distributable to the Transferor (including, without limitation, (i) amounts
allocable to other Series but not required to be paid to such other Series on
such Payment Date and not required to be kept in a deposit account for such
other Series after such Payment Date and (ii) Collections otherwise allocable to
the Transferor's Interest) or may be limited to the Controlled Deposit Amount
for such Payment Date; and provided further, however, that Monthly Principal
shall not exceed the Invested Amount of the Series 2004-NTC Certificate.
SECTION 4.4 Establishment of [Reserve Fund and] Funding Accounts.
[(a) (i) The Trustee, for the benefit of the Series 2004-NTC
Certificateholder, shall cause to be established and maintained in the name of
the Trustee, on behalf of the Trust, an Eligible Deposit Account (the "Reserve
Fund") which shall be identified as the "Reserve Fund for the Distribution
Financial Services Floorplan Master Trust, Series 2004-NTC" and shall bear
11 Series 2004-NTC Supplement
a designation clearly indicating that the funds deposited therein are held for
the benefit of the Series 2004-NTC Certificateholder.
(ii) At the direction of the Servicer, funds on deposit in the
Reserve Fund shall be invested by the Trustee in Eligible Investments
selected by the Servicer that shall mature so that such funds shall be
available at the close of business on or before the Business Day next
preceding the following Payment Date. All Eligible Investments shall be
held by the Trustee for the benefit of the Series 2004-NTC
Certificateholder. On each Payment Date, all interest and other investment
earnings (net of losses and investment expenses) on funds on deposit in
the Reserve Fund and received prior to such Payment Date shall be applied
as set forth in Section 4.6(a) of this Series Supplement. Funds deposited
in the Reserve Fund on the Business Day preceding a Payment Date are not
required to be invested overnight.]
[(b) (i) The Trustee, for the benefit of the Series 2004-NTC
Certificateholder, shall establish and maintain in the name of the Trustee, on
behalf of the Trust, an Eligible Deposit Account (the "Interest Funding
Account"), which shall be identified as the "Interest Funding Account for the
Distribution Financial Services Floorplan Master Trust, Series 2004-NTC" and
shall bear a designation clearly indicating that the funds deposited therein are
held for the benefit of the Series 2004-NTC Certificateholder.
(ii) At the direction of the Servicer, funds on deposit in the
Interest Funding Account shall be invested by the Trustee in Eligible
Investments selected by the Servicer that shall mature so that such funds
shall be available at the close of business on or before the Business Day
next preceding the following Payment Date. All such Eligible Investments
shall be held by the Trustee for the benefit of the Series 2004-NTC
Certificateholder. On each Payment Date, all interest and other investment
earnings (net of losses and investment expenses) on funds on deposit in
the Interest Funding Account and received prior to such Payment Date shall
be applied as set forth in Section 4.6(a) of this Series Supplement. Funds
deposited in the Interest Funding Account on the Business Day preceding a
Payment Date are not required to be invested overnight.]
(c) (i) The Trustee, for the benefit of the Series 2004-NTC
Certificateholder, shall establish and maintain in the name of the Trustee, on
behalf of the Trust, an Eligible Deposit Account (the "Principal Funding
Account"), which shall be identified as the "Principal Funding Account for
Distribution Financial Services Floorplan Master Trust, Series 2004-NTC" and
shall bear a designation clearly indicating that the funds deposited therein are
held for the benefit of the Series 2004-NTC Certificateholder.
(ii) At the direction of the Servicer, funds on deposit in the
Principal Funding Account shall be invested by the Trustee in Eligible
Investments selected by the Servicer that shall mature so that such funds
shall be available at the close of business on or before the Business Day
next preceding the following Payment Date. All such Eligible Investments
shall be held by the Trustee for the benefit of the Series 2004-NTC
Certificateholder. On each Payment Date all interest and other investment
earnings (net of losses and investment expenses) on funds on deposit in
the Principal Funding Account and received prior to such Payment Date
shall be applied as set forth in Section 4.6(a) of
12 Series 2004-NTC Supplement
this Series Supplement. Funds deposited in the Principal Funding Account
on the Business Day preceding the Expected Final Payment Date are not
required to be invested overnight.
(d) [Reserved.]
(e) (i) The Trustee shall possess all right, title and interest in and to
all funds on deposit from time to time in, and all Eligible Investments credited
to, [the Reserve Fund, the Interest Funding Account and] the Principal Funding
Account (collectively, the "Series 2004-NTC Accounts") and in all proceeds
thereof. The Series 2004-NTC Accounts shall be under the sole dominion and
control of the Trustee for the benefit of the Series 2004-NTC Certificateholder.
If, at any time, any of the Series 2004-NTC Accounts ceases to be an Eligible
Deposit Account, the Trustee (or the Servicer on its behalf) shall within ten
(10) Business Days (or such longer period, not to exceed thirty (30) calendar
days, as to which each Rating Agency may consent) establish a new Series
2004-NTC Account meeting the conditions specified in paragraph (a)(i), (b)(i) or
(c)(i) above, as applicable, as an Eligible Deposit Account and shall transfer
any cash and/or investments to such new Series 2004-NTC Account. Neither the
Transferor, the Servicer nor any other Person or entity claiming by, through or
under the Transferor, the Servicer or any such other Person or entity shall have
any right, title or interest in, or any right to withdraw any amount from, any
Series 2004-NTC Account, except as expressly provided herein. Schedule 1, which
is hereby incorporated into and made part of this Series Supplement, identifies
each Series 2004-NTC Account by setting forth the account number of each such
account, the account designation of each such account and the name of the
institution with which such account has been established. If a substitute Series
2004-NTC Account is established pursuant to this Section, the Servicer shall
provide to the Trustee an amended Schedule 1, setting forth the relevant
information for such substitute Series 2004-NTC Account.
(ii) Pursuant to the authority granted to the Servicer in Section
3.1(a) of the Agreement, the Servicer shall have the power, revocable by
the Trustee, to make withdrawals and payments or to instruct the Trustee
to make withdrawals and payments from the Series 2004-NTC Accounts for the
purposes of carrying out the Servicer's or the Trustee's duties hereunder.
(f) Unless otherwise agreed to by the Rating Agencies, at no time may
funds on deposit in any Series 2004-NTC Account in an amount greater than 10% of
the outstanding principal balance of the Series 2004-NTC Certificate be invested
in Eligible Investments (other than obligations of the United States government
or investments in a mutual fund that does not have credit concentrations greater
than 10%) of any single entity or its Affiliates.
(g) Upon payment in full of all amounts payable on the Series 2004-NTC
Certificate pursuant to this Series Supplement, or any earlier date contemplated
by this Series Supplement, any funds remaining on deposit in any Series 2004-NTC
Account shall be paid to the Transferor.
(h) The Trustee shall not in any way be held liable by reason of any
insufficiency in any Series 2004-NTC Account held by the Trustee resulting from
any investment loss on any Eligible Investment included therein (except to the
extent that the Trustee is the obligor and has defaulted thereon).
13 Series 2004-NTC Supplement
SECTION 4.5 Deficiency Amount. On each Determination Date, with respect to
the related Payment Date (the "Current Payment Date"), the Servicer shall
determine the amount (the "Deficiency Amount"), if any, by which
(a) the sum of
(i) [the Monthly Interest for the Current Payment Date,]
(ii) [any Monthly Interest for any prior Payment Dates not
distributed to the Series 2004-NTC Certificateholder on a prior Payment
Date,]
(iii) [Additional Interest, if any, for the Current Payment Date and
any Additional Interest for any prior Payment Date not distributed to the
Series 2004-NTC Certificateholder on such prior Payment Date (but only to
the extent permitted by applicable law),]
(iv) the Series 2004-NTC Monthly Servicing Fee for the Current
Payment Date,
(v) the Investor Default Amount for the Current Payment Date, and
(vi) the Series 2004-NTC Allocation Percentage of the amount of any
Adjustment Payment required to be deposited in the Collection Account
pursuant to Section 3.9(a) of the Agreement with respect to the related
Collection Period that has not been so deposited as of such Determination
Date
exceeds
(b) the sum of Investor Non-Principal Collections for the Current Payment
Date plus any Investment Proceeds, if any, with respect to such Payment Date.
SECTION 4.6 Application of Investor Non-Principal Collections, Investment
Proceeds, Servicer Advances and Available Investor Principal Collections. The
Servicer shall direct the Trustee (by setting forth the following amounts in the
related Payment Date Statement) to make the following payments on each Payment
Date (and the Trustee shall distribute):
(a) On each Payment Date, an amount equal to the sum of Investor
Non-Principal Collections on deposit in the Collection Account (after giving
effect to repayment to the Servicer of any Servicer Advances from any previous
Payment Dates) and any Investment Proceeds and the Servicer Advance, if any, for
such Payment Date, with respect to such Payment Date in the following priority:
(i) first, an amount equal to the Series 2004-NTC Monthly Servicing
Fee for such Payment Date shall be paid to the Servicer (unless such
amount has been netted by the Servicer against deposits to the Collection
Account);
(ii) [second, an amount equal to the Monthly Interest for such
Payment Date, plus the amount of any Monthly Interest for any prior
Payment Dates not paid to the
14 Series 2004-NTC Supplement
Series 2004-NTC Certificateholder on such prior Payment Dates plus (but
only to the extent permitted under applicable law) the amount of any
Additional Interest for the current Payment Date and, without duplication,
any Additional Interest previously due but not paid to the Series 2004-NTC
Certificateholder on prior Payment Dates, shall be deposited to the
Interest Funding Account;]
(iii) [third, an amount equal to the Reserve Fund Deposit Amount, if
any, for such Payment Date shall be deposited in the Reserve Fund;]
(iv) fourth, an amount equal to the Investor Default Amount, if any,
for such Payment Date shall be treated as a portion of Investor Principal
Collections for such Payment Date;
(v) fifth, an amount required to reimburse unreimbursed Investor
Charge-Offs pursuant to Section 4.9 shall be treated as a portion of
Investor Principal Collections for such Payment Date; and
(vi) sixth, the balance, if any, shall constitute the "Transferor
Amount" and shall be allocated and paid as set forth in Section 4.10.
(b) On each Payment Date with respect to the Revolving Period, the
Servicer shall direct the Trustee in writing, by setting forth the Excess
Principal Collections on the Payment Date Statement, to apply an amount equal to
the Available Investor Principal Collections deposited in the Collection Account
for the related Collection Period ("Excess Principal Collections") in accordance
with Section 4.4 of the Agreement.
(c) On each Payment Date (x) with respect to the Accumulation Period or
(y) an Early Amortization Period, the Servicer shall direct the Trustee in
writing (by setting forth the applicable amounts on the Payment Date Statement)
to deposit or apply an amount equal to the Available Investor Principal
Collections, from amounts on deposit in the Collection Account, in the following
priority:
(i) first, an amount equal to Monthly Principal for such Payment
Date shall be deposited by the Servicer or the Trustee into the Principal
Funding Account; and
(ii) second, for each Payment Date with respect to the Accumulation
Period (unless an Early Amortization Event has occurred), an amount equal
to the balance (such balance being part of "Excess Principal
Collections"), if any, of such Available Investor Principal Collections
shall be applied in accordance with the written instructions of the
Servicer in accordance with Section 4.4 of the Agreement.
SECTION 4.7 Payments to Series 2004-NTC Certificateholder.
(a) The Servicer shall direct the Trustee (by setting forth the amounts in
clause (i) below in the related Payment Date Statement) to make (and the Trustee
shall make) the following payments at the following times from the Interest
Funding Account and the Principal Funding Account:
15 Series 2004-NTC Supplement
(i) [on each Payment Date, available amounts on deposit in the
Interest Funding Account shall be paid to the Series 2004-NTC
Certificateholder in an amount equal to the sum of (i) the Monthly
Interest for the current Payment Date, plus (ii) any Monthly Interest that
was not paid on any prior Payment Date to the Series 2004-NTC
Certificateholder plus (iii) to the extent permitted under applicable law,
the amount of any Additional Interest for the current Payment Date and,
without duplication, any Additional Interest previously due but not paid
to the Series 2004-NTC Certificateholder; and]
(ii) on each Special Payment Date (if a Responsible Officer of the
Trustee has actual knowledge of the Early Amortization Period) and on the
Expected Final Payment Date, all amounts on deposit in the Principal
Funding Account shall be paid to the Series 2004-NTC Certificateholder
until the Invested Amount has been reduced to zero; provided, however,
that the maximum amount paid pursuant to this clause (ii) on any Payment
Date shall not exceed the excess, if any, of (x) the Invested Amount, over
(y) the sum of the unreimbursed Investor Charge-Offs, on such Payment
Date.
(b) The payments to be made pursuant to this Section are subject to the
provisions of Sections 2.3, 9.2, 10.1 and 12.2 of the Agreement and Section 8.1
and 8.2 of this Series Supplement.
SECTION 4.8 [Application of Reserve Fund.
(a) If Investor Non-Principal Collections and Investment Proceeds on any
Payment Date (plus the amount of any Servicer Advance for such Payment Date) are
not sufficient to make the entire payments required on such Payment Date by
Sections 4.6(a)(i), (ii) and (iv) the Servicer shall direct the Trustee to
withdraw (and the Trustee shall withdraw) funds from the Reserve Fund to the
extent available therein, and apply such funds to complete the payments pursuant
to Section 4.6(a)(i), (ii) and (iv) in the numerical order thereof.
(b) On the Termination Date, any funds in the Reserve Fund shall be
treated as Available Investor Principal Collections. Upon payment in full of the
outstanding principal balance of the Series 2004-NTC Certificate, any funds
remaining on deposit in the Reserve Fund shall be paid to the Transferor.]
SECTION 4.9 Investor Charge-Offs. If on any Payment Date (after giving
effect to the allocations, payments, withdrawals and deposits to be made on such
Payment Date) the balance of the Reserve Fund is zero, then the Invested Amount
shall be reduced by the lesser of the Deficiency Amount for that Payment Date
and the Investor Default Amount for that Payment Date (the lesser of such
Deficiency Amount and such Investor Default Amount being an "Investor
Charge-Off"). Investor Charge-Offs shall thereafter be reimbursed and the
Invested Amount increased (but not by an amount in excess of the aggregate
unreimbursed Investor Charge-Offs) on any Payment Date by the sum of (a)
Allocable Miscellaneous Payments with respect to such Payment Date and (b) the
amount allocated and available for that purpose pursuant to Section 4.6(a)(v).
The Servicer shall be responsible for calculating Investor Charge-Offs and shall
give the Trustee notice thereof by setting forth such amounts in the Payment
Date Statement.
16 Series 2004-NTC Supplement
SECTION 4.10 Transferor Amount. The Servicer shall direct the Trustee to
apply (and the Trustee shall so apply), on each Payment Date, the Transferor
Amount for such Payment Date to make the following payments in the following
priority:
(a) an amount equal to the aggregate outstanding amounts of the Monthly
Servicing Fee which have been previously waived pursuant to Section 3.1 shall be
paid to the Servicer; and
(b) the balance, if any, shall be released to the Transferor.
SECTION 4.11 Excess Principal Collections.
"Series 2004-NTC Excess Principal Collections", with respect to any
Payment Date, shall mean an amount equal to the lesser of (a) the Series
2004-NTC Principal Shortfall, if any, for such Payment Date and (b) an amount
equal to the product of (x) excess principal collections for all Series for such
Payment Date and (y) a fraction, the numerator of which is the Series 2004-NTC
Principal Shortfall for such Payment Date and the denominator of which is the
aggregate amount of principal shortfalls for all Series for such Payment Date.
ARTICLE V
Payment and Reports to
Series 2004-NTC Certificateholder
SECTION 5.1 Payments.
(a) On each Payment Date, the Trustee as paying agent shall pay to the
Series 2004-NTC Certificateholder on the preceding Record Date (other than as
provided in Section 12.2 of the Agreement with respect to a final payment) the
amounts on deposit in the Series 2004-NTC Accounts.
(b) Except as provided in Section 12.2 of the Agreement with respect to a
final payment, payments to the Series 2004-NTC Certificateholder hereunder shall
be made by wire transfer or other electronic funds transfer to the Series
2004-NTC Certificateholder at its address appearing in the Certificate Register
without presentation or surrender of the Series 2004-NTC Certificate or the
making of any notation thereon.
SECTION 5.2 Reports and Statements to Series 2004-NTC Certificateholder.
(a) At least two (2) Business Days prior to each Payment Date, the
Servicer shall provide to the Trustee and the Rating Agencies a statement
substantially in the form of Exhibit B (a "Payment Date Statement"), and on each
Payment Date the Trustee shall forward to the Series 2004-NTC Certificateholder
such statement prepared by the Servicer setting forth certain information
relating to the Trust and the Series 2004-NTC Certificate.
(b) A copy of each statement provided pursuant to paragraph (a) and a copy
of the Pooling and Servicing Agreement (without exhibits) and this Series
Supplement shall be made available to Series 2004-NTC Certificateholder for
inspection at the Corporate Trust Office during the Trustee's normal business
hours.
17 Series 2004-NTC Supplement
(c) On or before January 31 of each calendar year, beginning with calendar
year 2005, the Trustee shall furnish or cause to be furnished to the Series
2004-NTC Certificateholder, a statement prepared by the Servicer containing the
information which is required to be contained in the statement to the Series
2004-NTC Certificateholder as set forth in paragraph (a) above, together with
other information as is required to be provided by an issuer of indebtedness
under the Internal Revenue Code for the preceding calendar year and such other
customary information as is necessary to enable the Series 2004-NTC
Certificateholder to prepare its tax returns. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Internal Revenue Code as from time to time in effect.
ARTICLE VI
Early Amortization Events
SECTION 6.1 Additional Early Amortization Events. The occurrence of any of
the following events shall, immediately upon the occurrence thereof without
notice or other action on the part of the Trustee or the Series 2004-NTC
Certificateholder, be deemed to be an Early Amortization Event solely with
respect to Series 2004-NTC (each, an "Additional Early Amortization Event"):
(a) [on any Payment Date, the balance of the Reserve Fund is less than [ ]
percent ([ ]%) of the aggregate outstanding principal balance of the Series
2004-NTC Certificate, in each case after giving effect to all deposits,
withdrawals and payments on such Payment Date; or]
(b) any Servicer Default occurs; or
(c) on any Determination Date occurring in the months of [ ] through [ ],
the average of the Monthly Payment Rates for the three preceding Collection
Periods is less than [ ] percent ([ ]%) (or a lower percentage if the Rating
Agency Condition has been satisfied with respect to that lower percentage); or
on any Determination Date occurring in the months of [ ] through [ ], the
average of the Monthly Payment Rates for the three preceding Collection Periods
is less than [ ] percent ([ ]%) (or a lower percentage if the Rating Agency
Condition has been satisfied with respect to that lower percentage); or
(d) [the Invested Amount is not reduced to zero on the Expected Final
Payment Date]; or
(e) the ratio (expressed as a percentage) of (i) the average for each
month of the net losses on the Receivables (exclusive of the Ineligible
Receivables) owned by the Trust (i.e., gross losses less recoveries on any
Receivables) (including recoveries from collateral security in addition to
recoveries from the products, recoveries from Manufacturers and insurance
proceeds) during any three consecutive calendar months, to (ii) the average of
the month-end aggregate balances of those Receivables (without deducting
therefrom the Discount Portion) for such three-month period, exceeds [ ] percent
([ ]%) on an annualized basis; provided, that the percentage in this clause (e)
may be changed, or any Early Amortization Event relating to this clause (e) may
18 Series 2004-NTC Supplement
be waived, at the direction of the Transferor and without the consent of the
Series 2004-NTC Certificateholder upon the satisfaction of the Rating Agency
Condition; or
(f) the sum of all Eligible Investments and amounts on deposit in any
excess funding accounts for any other Series represents more than fifty percent
(50%) of the total assets of the Trust on each of six or more consecutive
Determination Dates, after giving effect to all payments made or to be made on
the Payment Dates relating to (i.e., next succeeding) those Determination Dates;
or
(g) the Overconcentration Amount exceeds zero for a period of five (5)
Business Days after any Payment Date, unless the Rating Agency Condition shall
have been satisfied with respect to the existence of the Overconcentration
Amount.
ARTICLE VII
Optional Repurchase
SECTION 7.1 Optional Repurchase.
(a) On any Payment Date occurring after the date on which the Invested
Amount is reduced to less than ten percent (10%) of the initial principal amount
of the Series 2004-NTC Certificate on the Closing Date or less, the Transferor
shall have the option, subject to the condition set forth in paragraph (c), to
purchase the entire, but not less than the entire, Series 2004-NTC
Certificateholder's Interest, at a purchase price equal to the Reassignment
Amount for such Payment Date.
(b) The Transferor shall give the Servicer and the Trustee at least ten
(10) Business Days' prior written notice of the Payment Date on which the
Transferor intends to exercise such purchase option. Not later than 12:00 noon,
New York City time, on such Payment Date the Transferor shall deposit the
Reassignment Amount into the Collection Account in immediately available funds.
Such purchase option is subject to payment in full of the Reassignment Amount
and if for any reason the Transferor fails to deposit the Reassignment Amount,
payments shall continue to be made to Series 2004-NTC Certificateholder as
provided herein. The Reassignment Amount shall be paid as set forth in Section
8.1(b).
(c) If at the time the Transferor exercises its purchase option hereunder
the Transferor's unsecured debt is unrated or has a rating lower than the lowest
investment grade rating of any Rating Agency, the Transferor shall deliver to
the Trustee on such Payment Date an Opinion of Counsel (which must be an
independent outside counsel) to the effect that, in reliance on certain
certificates to the effect that the Series 2004-NTC Certificateholder's Interest
purchased by the Transferor constitutes fair value for the consideration paid
therefor and that the Transferor is solvent, the purchase of the Series 2004-NTC
Certificateholder's Interest would not be considered a fraudulent conveyance
under applicable law.
19 Series 2004-NTC Supplement
ARTICLE VIII
Final Payments
SECTION 8.1 Sale of Certificateholder's Interest Pursuant to Section 2.3
of the Agreement; Payments Pursuant to Section 7.1 of this Series Supplement or
Section 2.3 or 12.2(c) of the Agreement.
(a) The amount to be paid by the Transferor to the Collection Account
with respect to Series 2004-NTC in connection with a purchase of the Series
2004-NTC Certificateholder's Interest pursuant to Section 2.3 of the Agreement
shall equal the Reassignment Amount for the Payment Date on which such
repurchase occurs.
(b) With respect to the Reassignment Amount deposited into the
Collection Account pursuant to Section 7.1 or 8.1 of this Series Supplement or
Section 2.3 of the Agreement or any Termination Proceeds deposited into the
Collection Account pursuant to Section 12.2(c) of the Agreement, the Trustee
shall, not later than 12:00 noon, New York time, on the Payment Date on which
such amounts are deposited (or, if such date is not a Payment Date, on the
immediately following Payment Date) (in the priority set forth below): (i)
first, deposit an amount equal to the Invested Amount on such Payment Date into
the Principal Funding Account, (ii) second, deposit an amount equal to the
amount payable on such Payment Date pursuant to Section 4.7(a)(i) into the
Interest Funding Account and (iii) third, pay the remainder of any Termination
Proceeds to the Transferor; provided, however, that the sum of the amounts
allocated pursuant to clauses (i) through (iii) shall not exceed the
Reassignment Amount for Series 2004-NTC.
(c) Notwithstanding anything to the contrary in this Series Supplement
or the Agreement, any Termination Proceeds deposited in the Principal Funding
Account and the Interest Funding Account pursuant to Section 8.1 of this Series
Supplement and all other amounts on deposit therein on the applicable Payment
Date shall be paid in full to the Series 2004-NTC Certificateholder in an amount
equal to the sum of (x) the Monthly Interest for the current Payment Date and,
without duplication, any unpaid Monthly Interest for any previous Payment Date,
(y) to the extent permitted by applicable law, any Additional Interest for the
current Payment Date and, without duplication, any unpaid Additional Interest
for any previous Payment Date, and (z) the Invested Amount. Any remaining funds
shall be released to the Transferor.
Any payment made pursuant to paragraph (b) above and this paragraph (c)
shall be deemed to be a final payment pursuant to Section 12.2 of the Agreement
with respect to Series 2004-NTC.
SECTION 8.2 Payment of Proceeds of Sale, Disposition or Liquidation of the
Receivables Pursuant to Section 9.2 of the Agreement.
(a) Not later than 12:00 noon, New York City time, on the Payment Date
following the date on which the Insolvency Proceeds are deposited into the
Collection Account pursuant to Section 9.2(b) of the Agreement, the Trustee
shall (after giving effect to any deposits and
20 Series 2004-NTC Supplement
payments otherwise to be made on such Payment Date) (x) deduct an amount equal
to the amount distributable on such Payment Date pursuant to Section 4.7(a)(ii)
from the Series 2004-NTC Allocation Percentage of the Insolvency Proceeds and
deposit such amount in the Principal Funding Account, (y) deduct an amount equal
to the amount payable on such Payment Date pursuant to Section 4.7(a)(i) from
the Series 2004-NTC Allocation Percentage of the Insolvency Proceeds, and
deposit such amount in the Interest Funding Account, and (z) allocate the
remainder of the Series 2004-NTC Allocation Percentage of the Insolvency
Proceeds to the Transferor's Interest and release the same to the Transferor on
such Payment Date.
(b) Notwithstanding anything to the contrary in this Series Supplement
or the Agreement, the entire amount deposited in the Principal Funding Account
and the Interest Funding Account pursuant to this Section and all other amounts
on deposit therein shall be distributed in full to the Series 2004-NTC
Certificateholder in the order of priority set forth in Section 4.7 on the
Payment Date on which funds are deposited pursuant to this Section 8.2 (or, if
not so deposited on a Payment Date, on the immediately following Payment Date)
and any payment made pursuant to this Section 8.2 shall be deemed to be a final
payment pursuant to Section 12.2 of the Agreement with respect to Series
2004-NTC.
ARTICLE IX
Miscellaneous Provisions
SECTION 9.1 Securities Law Filings. The Transferor shall cause the Series
2004-NTC Certificate to be registered under the Securities Exchange Act of 1934,
as amended, to the extent required to do so under applicable law.
SECTION 9.2 Ratification of Agreement. As supplemented by this Series
Supplement, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Series Supplement shall be read, taken and
construed as one and the same instrument.
SECTION 9.3 Counterparts. This Series Supplement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
SECTION 9.4 Governing Law. This Series Supplement shall be governed by and
construed in accordance with the internal laws of the State of New York
(including Section 5-1401(1) of the General Obligations Law of the State of New
York, but without regard to any other conflict of law provisions of the State of
New York).
SECTION 9.5 [Reserved]
SECTION 9.6 The Trustee; Paying Agent; Transfer Agent and Registrar. The
Trustee shall not be responsible in any manner whatsoever for or in respect of
the validity or sufficiency of this Series Supplement, for or in respect of the
calculation or verification of any of the amounts, allocation or payments set
forth in Article IV and Article VIII or for or in respect of the recitals
contained herein, all of which recitals are made solely by the Transferor;
provided, however, that this sentence shall not limit the obligations of the
Trustee contemplated by
21 Series 2004-NTC Supplement
Section 4.2(b) of this Series Supplement; it being agreed and understood that
the corresponding Section 9.6 of any other Supplement shall not limit the
obligations of the Trustee contemplated by the corresponding Section 4.2(b) of
such Supplement.
SECTION 9.7 Instructions in Writing. All instructions given by the
Servicer to the Trustee pursuant to this Series Supplement shall be in writing,
and may be included in a Payment Date Statement.
SECTION 9.8 [Initial Funding of Reserve Fund. On the Closing Date the
Transferor shall cause to be deposited with the Trustee, and the Trustee shall
deposit in the Reserve Fund, available funds in an amount equal to [ ] percent
([ ]%) of the aggregate initial principal balance of the Series 2004-NTC
Certificate.]
SECTION 9.9 Severability; Certificate Rate Limitation.
(a) If any one or more of the covenants, agreements, provisions or terms
of this Series Supplement or the Series 2004-NTC Certificate shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Series Supplement and shall in no way affect the
validity or enforceability of the other provisions of this Series Supplement or
of the Series 2004-NTC Certificate.
(b) Notwithstanding anything in this Series Supplement, the Agreement,
or the Series 2004-NTC Certificate to the contrary, if at any time any
Certificate Rate, together with all fees, charges and other amounts which are
treated as interest on the Series 2004-NTC Certificate under applicable law
(collectively the "Charges"), shall exceed the maximum lawful rate (the "Maximum
Rate") which may be contracted for, charged, taken, received or reserved by the
Series 2004-NTC Certificateholder in accordance with the terms of this Series
Supplement, the Agreement or the Series 2004-NTC Certificate, then the
Certificate Rate, together with all Charges payable in respect of the Series
2004-NTC Certificate, shall be limited to the Maximum Rate and, to the extent
lawful, such Certificate Rate and Charges that would have been payable in
respect of the Series 2004-NTC Certificate, but were not payable as a result of
the operation of this Section, shall be cumulated and the Certificate Rate and
Charges payable to the Series 2004-NTC Certificateholder in respect of other
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount shall have been received by the Series 2004-NTC
Certificateholder.
SECTION 9.10 Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
[SIGNATURES FOLLOW]
22 Series 2004-NTC Supplement
IN WITNESS WHEREOF, the Transferor, the Servicer and the Trustee have
caused this Series Supplement to be duly executed as of the day and year first
above written.
CDF FINANCING, L.L.C.,
as Transferor
By:
Name:
Title: Manager
S-1 Series 2004-NTC Supplement
GE COMMERCIAL DISTRIBUTION
FINANCE CORPORATION,
as Servicer
By:
_____________________________________
Name:
_______________________________
Title:
_______________________________
S-2 Series 2004-NTC Supplement
|
WILMINGTON TRUST COMPANY,
as Trustee
By Deutsche Bank Trust Company Americas
(f/k/a Bankers Trust Company), as Agent
By:
_____________________________________
Name:
Title:
S-3 Series 2004-NTC Supplement
|
EXHIBIT A
FORM OF NOTE TRUST CERTIFICATE
NOTE TRUST CERTIFICATE,
SERIES 2004-NTC
evidencing a fractional undivided interest in certain
assets of
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST.
This certificate ("Certificate") does not represent any interest in, or
obligation of, CDF Financing, L.L.C. ("LLC" or the "Transferor"), GE Commercial
Distribution Finance Corporation ("CDF"), General Electric Capital Corporation,
General Electric Capital Services, Inc. or any affiliate thereof.
This certifies that [ ] (the "Certificateholder"), is the registered owner
of a fractional undivided interest in assets of the Distribution Financial
Services Floorplan Master Trust (the "Trust") created pursuant to an Amended and
Restated Pooling and Servicing Agreement, dated as of April 1, 2000 (as amended,
the "P&S"), as supplemented by the Series 2004-NTC Supplement dated as of [ ],
2004 (the "Series 2004-NTC Supplement" or the "Series Supplement"), among the
LLC, as Transferor, CDF, as Servicer, and Wilmington Trust Company, as successor
to The Chase Manhattan Bank, as trustee (the "Trustee"). The P&S and the Series
2004-NTC Supplement are collectively referred to herein as the "Pooling and
Servicing Agreement."
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW
PROVISIONS OF THE STATE OF NEW YORK).
This Certificate is issued under and is subject to the terms, provisions
and conditions of the Pooling and Servicing Agreement to which, as amended and
supplemented from time to time, the Certificateholder by virtue of the
acceptance hereof assents and is bound. Although a summary of certain provisions
of the Pooling and Servicing Agreement is set forth herein, this Certificate
does not purport to summarize the Pooling and Servicing Agreement and reference
is made to the Pooling and Servicing Agreement for information with respect to
the interests, rights, benefits, obligations, proceeds and duties evidenced
hereby and the rights, duties and obligations of the Trustee. In the event of
any conflict or inconsistency between this Certificate
Ex.A-1 Series 2004-NTC Supplement
and the Pooling and Servicing Agreement, the Pooling and Servicing Agreement
shall control in all respects. To the extent not defined herein, the capitalized
terms used herein have the meanings ascribed to them in the Pooling and
Servicing Agreement.
The Transferor has entered into the Pooling and Servicing Agreement and
the Series 2004-NTC Certificate has been issued with the intention that the
Series 2004-NTC Certificate shall qualify as indebtedness of the LLC secured by
the Receivables for Federal income taxes, state and local income, single
business and franchise taxes (imposed on or measured by income) and any other
taxes imposed on or measured by income. The Transferor, each Beneficiary and the
Certificateholder, by the acceptance of this Certificate, agrees to treat such
Series 2004-NTC Certificate as indebtedness of the Transferor secured by the
Receivables for Federal income taxes, state and local income, single business
and franchise taxes (imposed on or measured by income) and any other taxes
imposed on or measured by income.
Ex.A-2 Series 2004-NTC Supplement
IN WITNESS WHEREOF, the Transferor has caused this Certificate to be duly
executed.
CDF FINANCING, L.L.C.
By:
Name:
Title: Manager
Dated:
Ex.A-3 Series 2004-NTC Supplement
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Pooling and
Servicing Agreement.
WILMINGTON TRUST COMPANY,
as Trustee
By Deutsche Bank Trust Company Americas
(f/k/a Bankers Trust Company), as Agent
By:
Authorized Officer
Dated:
Ex.A-4 Series 2004-NTC Supplement
ASSIGNMENT
Social Security or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby assigns and transfers unto
________________________________________________________________________________
(name and address of assignee)
the within certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints _______, attorney, to transfer said certificate on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: _____________________________________________________________________ *
Signature Guaranteed:
______________
(*) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the within Certificate in every particular,
without alteration, enlargement or any change whatsoever.
|
Ex.A-5 Series 2004-NTC Supplement
EXHIBIT B
FORM OF PAYMENT DATE STATEMENT
(a) The aggregate amount of Collections, the aggregate amount of
Non-Principal Collections and the aggregate amount of Principal Collections
processed during the immediately preceding Collection Period, and the Pool
Balance as of the end of such Collection Period;
(b) the Floating Allocation Percentage, the Principal Allocation
Percentage and the Series 2004-NTC Allocation Percentage relating to such
Collection Period;
(c) the total amount, if any, distributed on the Series 2004-NTC
Certificate;
(d) the amount of such payment allocable to principal on the Series
2004-NTC Certificate;
(e) [the amount of such payment allocable to interest on the Series
2004-NTC Certificate;]
(f) the Investor Default Amount for the applicable Payment Date;
(g) the Deficiency Amount, if any, for the preceding Collection Period;
(h) the amount of the Investor Charge-Offs and the amounts of
reimbursements thereof for the preceding Collection Period;
(i) the amount of the Monthly Servicing Fee for the preceding
Collection Period;
(j) the Invested Amount for such Payment Date (after giving effect to
all payments which shall occur on such Payment Date);
(k) the Controlled Deposit Amount, if any;
(l) the Pool Factor;
(m) [LIBOR for the next Interest Period;]
(n) [the Reserve Fund balance with respect to the current Determination
Date;]
(o) the Principal Funding Account balance, [the Interest Funding
Account balance,] and the Collection Account balance with respect to the current
Payment Date;
(p) the Servicer Advance, if any, for the current Payment Date and
reimbursement of any Servicer Advance;
(q) [any elective or "deemed" waiver of the Monthly Servicing Fee for
the current Payment Date;]
Ex.B-1 Series 2004-NTC Supplement
(r) if a Dealer Overconcentration exists, (i) the Unconcentrated Pool
Balance, (ii) the aggregate amount of such Dealer Overconcentration, (iii) the
applicable Unconcentrated Percentage and Overconcentrated Percentage, and (iv)
the portion of Collections, Miscellaneous Payments and the Defaulted Amount
allocated to the Dealer Overconcentration Series and other Series;
(s) [the Monthly Interest;]
(t) [the Additional Interest;]
(u) the Series 2004-NTC Monthly Servicing Fee;
(v) [the Reserve Fund Deposit Amount];
(w) the Investor Default Amount;
(x) the Excess Principal Collections;
(y) the amounts to be deposited or applied pursuant to Section 4.6(c);
(z) the amount calculated pursuant to Section 4.7(a)(i);
(aa) the amount calculated pursuant to Section 4.8;
(bb) the amount calculated pursuant to Section 4.10; and
(cc) Miscellaneous Payments, including Adjustment Payments, Transfer
Deposit Amounts and Unallocated Principal Collections.
Ex.B-2 Series 2004-NTC Supplement
SCHEDULE 1
Name of Series
2004-NTC Account Account No.
------------------------- -----------
Interest Funding Account [ ]
Principal Funding Account [ ]
[Reserve Fund] [ ]
|
[All of the foregoing accounts are maintained at Deutsche Bank Trust Company
Americas.]
Sch.1-1 Series 2004-NTC Supplement
Exhibit 4.9
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
Buyer
with
DEUTSCHE FINANCIAL SERVICES CORPORATION
and
DEUTSCHE BUSINESS SERVICES CORPORATION
Sellers
RECEIVABLES CONTRIBUTION AND SALE AGREEMENT
Dated as of December 1, 1993,
Amended and Restated as of March 1, 1994,
Amended as of January 24, 1996,
and
Amended and Restated as of October 1, 1996
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.1 Definitions............................................................................... 1
Section 1.2 Other Definitional Provisions............................................................. 1
ARTICLE II
CONVEYANCE OF RECEIVABLES
Section 2.1 Conveyance of Receivables................................................................. 2
Section 2.2 Representations and Warranties of the Sellers Relating to the Sellers and the Agreement... 4
Section 2.3 Representations and Warranties of the Sellers Relating to the Receivables................. 6
Section 2.4 Addition of Accounts...................................................................... 8
Section 2.5 Covenants of the Sellers.................................................................. 9
Section 2.6 Removal of Eligible Accounts.............................................................. 11
Section 2.7 Removal of Ineligible Accounts............................................................ 12
Section 2.8 Sale of Ineligible Receivables............................................................ 13
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.1 Acceptance of Appointment and Other Matters Relating to the Servicer...................... 13
Section 3.2 Servicing Compensation.................................................................... 13
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.1 Allocations and Applications of Collections and Other Funds............................... 14
ARTICLE V
OTHER MATTERS RELATING TO THE SELLERS
Section 5.1 Merger or Consolidation of, or Assumption of, the Obligations of the Sellers.............. 14
Section 5.2 Sellers' Indemnification of the Buyer..................................................... 14
ARTICLE VI
TERMINATION
Termination............................................................................... 15
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1 Amendment................................................................................. 15
Section 7.2 Protection of Right, Title and Interest to Receivables.................................... 17
Section 7.3 Limited Recourse.......................................................................... 17
Section 7.4 No Petition............................................................................... 17
Section 7.5 Governing Law............................................................................. 17
Section 7.6 Notices................................................................................... 17
Section 7.7 Severability of Provisions................................................................ 18
Section 7.8 Assignment................................................................................ 18
Section 7.9 Further Assurances........................................................................ 18
Section 7.10 No Waiver; Cumulative Remedies............................................................ 18
Section 7.11 Counterparts.............................................................................. 18
Section 7.12 Third-Party Beneficiaries................................................................. 18
Section 7.13 Merger and Integration.................................................................... 18
Section 7.14 Headings.................................................................................. 18
Section 7.15 Continued Effectiveness of the Receivables Contribution and Sale Agreement................ 19
Section 7.16 Submission to Jurisdiction................................................................ 19
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-ii-
EXHIBITS
Exhibit A Form of Assignment of Receivables in Additional Accounts
Exhibit B Form of Opinion of Counsel regarding Amendments
Exhibit C Form of Reassignment of Receivables in Removed Accounts
Schedule 1 List of Accounts
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RECEIVABLES CONTRIBUTION AND SALE AGREEMENT, dated as of December 1, 1993,
amended and restated as of March 1, 1994, amended as of January 24, 1996 and
amended and restated as of October 1, 1996, among DEUTSCHE FLOORPLAN
RECEIVABLES, L.P., a Delaware limited partnership, formerly known as ITT
Floorplan Receivables, L.P., as Buyer, DEUTSCHE FINANCIAL SERVICES CORPORATION
("DFS"), a Nevada corporation, formerly known as ITT Commercial Finance Corp.,
and DEUTSCHE BUSINESS SERVICES CORPORATION ("Deutsche BSC"), a Missouri
corporation, formerly known as ITT Business Services Corporation, as Sellers.
W I T N E S E T H:
WHEREAS the Sellers in the ordinary course of their businesses finance the
purchase of floorplan inventory, accounts receivable and other assets of dealers
in, and manufacturers of, commercial and consumer products, thereby generating
certain payment obligations;
WHEREAS the Sellers wish to sell or contribute certain of such existing
and future payment obligations from time to time to the Buyer; and
WHEREAS the Buyer desires to sell such payment obligations to the Deutsche
Floorplan Receivables Master Trust, pursuant to a Pooling and Servicing
Agreement dated as of December 1, 1993, amended and restated as of March 1,
1994, amended as of January 24, 1996, and amended and restated as of October 1,
1996 (as the same may from time to time be amended, supplemented or otherwise
modified, the "Pooling and Servicing Agreement"), among the Buyer, as seller,
DFS, as servicer, and The Chase Manhattan Bank, as trustee (the "Trustee").
WHEREAS the Sellers and the Buyer desire to amend and restate this
Agreement.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
Definitions
Section 1.1 Definitions. Capitalized terms used herein but not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The rules of construction in Sections 1.2 and 1.3 of the Pooling and
Servicing Agreement shall be applied to this Agreement. In addition, the term
"Agreement" means this Receivables Contribution and Sale Agreement, as the same
may from time to time be amended, supplemented or otherwise modified.
Section 1.2 Other Definitional Provisions. (a) The words "hereof",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement; Article, Section, Schedule, and Exhibit references are
references to Sections, Schedules and Exhibits in or to this Agreement unless
otherwise specified; and the term "including" shall mean "including without
limitation".
(b) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
ARTICLE II
Conveyance of Receivables
Section 2.1 Conveyance of Receivables. By execution of this Agreement,
each Seller does hereby sell, transfer, assign, set over and otherwise convey,
without recourse (except as expressly provided herein), to the Buyer on the
first Closing Date, in the case of Initial Accounts, and on the applicable
Addition Date, in the case of Additional Accounts, all of its right, title and
interest in, to and under the Receivables in each Account and all Collateral
Security with respect thereto owned by such Seller at the close of business on
the Cut-Off Date, in the case of the Initial Accounts, and on the applicable
Additional Cut-Off Date, in the case of Additional Accounts, and all monies due
or to become due and all amounts received with respect thereto and all proceeds
(including "proceeds" as defined in Section 9-306 of the UCC as in effect in the
State of Missouri and the State of Georgia, as applicable, and Recoveries)
thereof and all of such Seller's rights, remedies, powers and privileges with
respect to such Receivables under the related Floorplan Agreements. Subject to
Article VI, as of each Business Day prior to the earlier of (x) the occurrence
of an Early Amortization Event specified in Section 9.1(b), (c), (d), or (e) of
the Pooling and Servicing Agreement and (y) the Trust Termination Date, on which
Receivables are created in the Accounts (a "Transfer Date"), each Seller does
hereby sell, transfer, assign, set over and otherwise convey, without recourse
(except as expressly provided herein), to the Buyer, all of its right, title and
interest in, to and under the Receivables in each Account (other than any
Receivables created in any Removed Account from and after the applicable Removal
Date) and all Collateral Security with respect thereto owned by such Seller at
the close of business on such Transfer Date and not theretofore conveyed to the
Buyer, all monies due or to become due and all amounts received with respect
thereto and all proceeds (including "proceeds" as defined in Section 9-306 of
the UCC as in effect in the State of Missouri and the State of Georgia, as
applicable, and Recoveries) thereof and all of such Seller's rights, remedies,
powers and privileges with respect to such Receivables under the related
Floorplan Agreements. The foregoing sale, transfer, assignment, set-over and
conveyance and any subsequent sales, transfers, assignments, set-overs and
conveyances do not constitute, and are not intended to result in, the creation
or an assumption by the Buyer of any obligation of the Servicer, either Seller
or any other Person in connection with the Accounts, the Receivables or under
any agreement or instrument relating thereto, including any obligation under the
Financing Agreements, the Floorplan Agreements and any Participation Agreement
and any other obligation to any Dealer or Manufacturer.
To the extent, if any, that a Receivable and its Collateral Security was
subject to a participation arrangement under which DFS and Deutsche BSC owned
undivided interests in such Receivable and Collateral Security immediately prior
to its conveyance hereunder, DFS and Deutsche BSC are hereby selling,
transferring, assigning, setting over and conveying to the Buyer all of their
right, title and interest in their respective undivided interests in such
Receivable and Collateral Security, such that the Buyer owns the entire
Receivable and its Collateral Security free of any such participation
arrangement.
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On the Closing Date, pursuant to the terms of this Section 2.1, (i) DFS
shall contribute as capital to the Buyer Receivables in the amount of
$2,245,412,372.69, together with the related Collateral Security and Floorplan
Rights (defined below) and (ii) Deutsche BSC shall sell to the Buyer Receivables
in the amount of $2,632,722.01, together with the related Collateral Security
and Floorplan Rights. Subject to Article VI, the purchase price for the
Receivables sold by (a) Deutsche BSC to the Buyer on the Closing Date and (b) by
each of the Sellers to the Buyer on each Addition Date and on each Transfer Date
thereafter shall be a price agreed to by the Buyer and each Seller at the time
of acquisition by the Buyer, which price shall not, in the opinion of the Buyer,
be materially less favorable to the Buyer than prices for transactions of a
generally similar character at the time of the acquisition taking into account
the quality of such Receivables and other pertinent factors, including, without
limitation, prevailing interest rates; provided that such consideration shall in
any event not be less than reasonably equivalent value therefor.
At its option from time to time, DFS may convey as a capital contribution
to the Buyer (or convey as a capital contribution to the general partner of the
Buyer which may then convey as a capital contribution to the Buyer) Receivables
together with the related Collateral Security and Floorplan Rights (or interests
in any of the foregoing).
In connection with such contributions and sales, each Seller agrees to
record and file, at its own expense, a financing statement on form UCC-1 (and
continuation statements when applicable) naming the applicable Seller as
"seller" and the Buyer as "Purchaser" thereon with respect to the Receivables
now existing and hereafter created for the sale of chattel paper, accounts or
general intangibles (as defined in Section 9-105 of the UCC as in effect in any
state where such Seller's or the Servicer's chief executive offices or books and
records relating to the Receivables are located) meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect the sale and assignment of the Receivables, the Collateral Security
and all of such Seller's rights, remedies, powers and privileges with respect to
such Receivables under the related Floorplan Agreements (the "Floorplan Rights")
to the Buyer, and to deliver a file-stamped copy of such financing statements or
other evidence of such filing to the Buyer on or prior to the first Closing
Date, in the case of Initial Accounts, and (if any additional filing is so
necessary) the applicable Addition Date, in the case of Additional Accounts. In
addition, each Seller shall cause to be timely filed in the appropriate filing
office any UCC-1 financing statement and continuation statement necessary to
perfect any sale of Receivables to the Seller. The Buyer shall be under no
obligation whatsoever to file such financing statement, or a continuation
statement to such financing statement, or to make any other filing under the UCC
in connection with such contribution and sales. The parties hereto intend that
the transfers of Receivables and other items effected by this Agreement be sales
(or, in the case of contributions, true contributions).
In connection with such contribution and sales, each Seller further
agrees, at its own expense, on or prior to the first Closing Date, in the case
of Initial Accounts, the applicable Addition Date, in the case of Additional
Accounts, and the applicable Removal Date, in the case of Removed Accounts, (a)
to indicate in its books and records, which may include computer files, that the
Receivables created in connection with the Accounts (other than Removed
Accounts) have been sold, and the Collateral Security and the Floorplan Rights
assigned, to the Buyer pursuant to this Agreement and sold to the Trust pursuant
to the Pooling and Servicing
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Agreement for the benefit of the Certificateholders and the other Beneficiaries
and (b) to deliver to the Buyer a computer file or microfiche or written list
containing a true and complete list of all such Accounts (other than Removed
Accounts) specifying for each such Account, as of the Cut-Off Date, in the case
of Initial Accounts, and the applicable Additional Cut-Off Date, in the case of
Additional Accounts, (i) its account number and (ii) the aggregate amount of
Principal Receivables in such Account. Such file or list, as supplemented from
time to time to reflect Additional Accounts and Removed Accounts, shall be
marked as Schedule 1 to this Agreement and is hereby incorporated into and made
a part of this Agreement.
In the event that such contributions, sales and assignments are deemed to
constitute a pledge of security for a loan, it is the intent of this Agreement
that each Seller shall be deemed to have granted to the Buyer a first priority
perfected security interest in all of such Seller's right, title and interest to
and under the Receivables, the Collateral Security and all proceeds thereof and
the Floorplan Agreements, and that this Agreement shall constitute a security
agreement under applicable law.
Section 2.2 Representations and Warranties of the Sellers Relating to the
Sellers and the Agreement. Each Seller hereby represents and warrants to the
Buyer, as to itself and the Receivables being transferred and sold by it
hereunder, as of each Closing Date that:
(a) Organization and Good Standing. Such Seller is a corporation
duly organized and validly existing and in good standing under the laws of
the state of its incorporation and has, in all material respects, full
corporate power, authority and legal right to own its properties and
conduct its business as such properties are presently owned and such
business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement.
(b) Due Qualification. Such Seller is duly qualified to do
business and, where necessary, is in good standing as a foreign
corporation (or is exempt from such requirement) and has obtained all
necessary licenses and approvals in each jurisdiction in which the conduct
of its business requires such qualification except where the failure to so
qualify or obtain licenses or approvals would not have a material adverse
effect on its ability to perform its obligations hereunder.
(c) Due Authorization. The execution and delivery of this
Agreement and the consummation of the transactions provided for or
contemplated by this Agreement have been duly authorized by such Seller by
all necessary corporate action on the part of the Seller and are within
its corporate powers.
(d) No Conflict. The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof and thereof, will not conflict with,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of
trust, or other instrument to which such Seller is a party or by which it
or its properties are bound.
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(e) No Violation. The execution and delivery of this Agreement,
the performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof and thereof applicable to such Seller,
will not conflict with or violate any material Requirements of Law
applicable to such Seller or conflict with, violate, result in any breach
of any of the material terms and provisions of, or constitute (with or
without notice or lapse of time or both) a material default under any
indenture, contract, agreement, mortgage, deed of trust, or other
instrument to which either Seller is a party or by which such Seller is
bound.
(f) No Proceedings. There are no proceedings or, to the best
knowledge of such Seller, investigations, pending or threatened against
such Seller, before any Governmental Authority (i) asserting the
invalidity of this Agreement, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement, (iii) seeking any
determination or ruling that, in the reasonable judgment of such Seller,
would materially and adversely affect the performance by such Seller of
its obligations under this Agreement, (iv) seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Agreement or (v) seeking to affect adversely the
income tax attributes of the Trust under the United States federal or any
state income, single business or franchise tax systems.
(g) All Consents Required. All appraisals, authorizations,
consents, orders, approvals or other actions of any Person or of any
governmental body or official required in connection with the execution
and delivery of this Agreement, the performance of the transactions
contemplated by this Agreement, and the fulfillment of the terms hereof or
thereof, have been obtained.
(h) Enforceability. This Agreement constitutes a legal, valid and
binding obligation of such Seller enforceable against such Seller in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at
law or in equity).
(i) Record of Accounts. As of the first Closing Date, in the case
of Initial Accounts, as of the applicable Addition Date, in the case of
the Additional Accounts, and, as of the applicable Removal Date, in the
case of Removed Accounts, Schedule 1 to this Agreement is an accurate and
complete listing in all material respects of all the Accounts as of the
Cut-Off Date, the applicable Additional Cut-Off Date or the applicable
Removal Date, as the case may be, and the information contained therein
with respect to the identity of such Accounts and the Receivables existing
thereunder is true and correct in all material respects as of the Cut-Off
Date, such applicable Additional Cut-Off Date or such Removal Date, as the
case may be.
(j) Valid Transfer. This Agreement or, in the case of Additional
Accounts, the related Assignment constitutes a valid sale, transfer and
assignment to the Buyer of all right, title and interest of such Seller in
the Receivables and the Collateral Security and the proceeds thereof. Upon
the filing of the financing statements described in
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Section 2.1 with the Secretary of State of the State of Missouri and the
County Recorder of St. Louis County in the State of Missouri with respect
to DFS and the County Recorder of Cobb County in the State of Georgia, in
the case of Deutsche BSC and, in the case of the Receivables hereafter
created and the proceeds thereof, upon the creation thereof, the Buyer
shall have a first priority perfected ownership interest in such property.
Except as otherwise provided in the Pooling and Servicing Agreement,
neither such Seller nor any Person claiming through or under such Seller
has any claim to or interest in the Trust Assets.
The representations and warranties set forth in this Section 2.2 shall
survive the transfer and assignment of the Receivables to the Buyer. Upon
discovery by a Seller or the Buyer of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other parties.
In the event of any breach of any of the representations and warranties
set forth in this Section 2.2 and if, in connection therewith, the Buyer shall
be obligated to purchase the Certificateholders' Interest pursuant to Section
2.3 of the Pooling and Servicing Agreement, the Sellers shall repurchase the
Receivables, the Collateral Security and Floorplan Rights respectively conveyed
by them and shall pay to the Buyer on the Business Day preceding the
Distribution Date on which such purchase of the Certificateholders' Interest is
to be made an amount equal to the purchase price for the Certificateholders'
Interest as specified in the Pooling and Servicing Agreement. The obligation of
the Seller to purchase the Receivables pursuant to this Section 2.2 shall
constitute the sole remedy against such Seller respecting an event of the type
specified in the first sentence of this paragraph available to the Buyer and to
the Investor Certificateholders (or the Trustee on behalf of the Investor
Certificateholders).
Section 2.3 Representations and Warranties of the Sellers Relating to the
Receivables.
(a) Representations and Warranties. Each Seller hereby represents and
warrants to the Buyer, with respect to the Receivables conveyed by such Seller,
that:
(i) Each Receivable and all Collateral Security existing on the
first Closing Date or, in the case of Additional Accounts, on the
applicable Addition Date, and on each Transfer Date, has been conveyed to
the Buyer free and clear of any Lien.
(ii) With respect to each Receivable and all Collateral Security
existing on the first Closing Date or, in the case of Additional Accounts,
on the applicable Addition Date, and on each Transfer Date, all consents,
licenses, approvals or authorizations of or registrations or declarations
with any Governmental Authority required to be obtained, effected or given
by such Seller in connection with the conveyance of such Receivable or
Collateral Security to the Buyer have been duly obtained, effected or
given and are in full force and effect.
(iii) On the Cut-Off Date and each Closing Date, each Initial
Account is an Eligible Account and, in the case of Additional Accounts, on
the applicable Additional Cut-Off Date and each subsequent Closing Date,
each such Additional Account is an Eligible Account.
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(iv) On the first Closing Date, in the case of the Initial
Accounts, and, in the case of the Additional Accounts, on the applicable
Additional Cut-Off Date, and on each Transfer Date, each Receivable
conveyed to the Buyer on such date is an Eligible Receivable or, if such
Receivable is not an Eligible Receivable, such Receivable is conveyed to
the Buyer in accordance with Section 2.8.
(v) Each Participation Agreement, if any, relating to Receivables
conveyed by such Seller permits the transfer of such Receivables to the
Buyer and the Trust and provides that the undivided interest of such
participant is pari passu in all respects (other than non-subordinated
interest strips and fees) with the remaining undivided interest in the
related Receivables. If such Participation Agreement was created after
December 1, 1993, such Participation Agreement states that the related
undivided interest of such Seller may be transferred to a securitization
vehicle and contains an agreement by the participant that such participant
shall have no rights against the securitization vehicle or any successor
servicer for such securitization vehicle, other than in connection with
funds allocable to the participant that have been improperly withheld by
the securitization vehicle.
(b) Notice of Breach. The representations and warranties set forth in
this Section 2.3 shall survive the transfer and assignment of the Receivables to
the Buyer. Upon discovery by such Seller or the Buyer of a breach of any of the
representations and warranties set forth in this Section 2.3, the party
discovering such breach shall give prompt written notice to the other parties.
(c) Repurchase. In the event any representation or warranty under
Section 2.3(a) is not true and correct as of the date specified therein with
respect to any Receivable or Account and the Buyer is, in connection therewith,
required to purchase such Receivable or all Receivables in such Account pursuant
to Section 2.4(c) of the Pooling and Servicing Agreement, then, within 30 days
(or such longer period as may be agreed to by the Buyer) of the earlier to occur
of the discovery of any such event by a Seller or the Buyer, or receipt by
either Seller or the Buyer of written notice of any such event given by the
Trustee or any Enhancement Providers, the applicable Seller shall repurchase the
Receivable or Receivables, if any, of which the Buyer is required to accept
reassignment pursuant to the Pooling and Servicing Agreement on the Business Day
preceding the Determination Date on which such reassignment is to occur.
The applicable Seller shall purchase each such Receivable by making a
payment to the Buyer in immediately available funds on the Business Day
preceding the Distribution Date on which such reassignment is to occur in an
amount equal to the Purchase Price for such Receivable. Upon payment of the
Purchase Price, the Buyer shall automatically and without further action be
deemed to sell, transfer, assign, set over and otherwise convey to such Seller,
without recourse, representation or warranty, all the right, title and interest
of the Buyer in and to such Receivable, all Collateral Security, the related
Floorplan Rights and all monies due or to become due with respect thereto and
all proceeds thereof. The Buyer shall execute such documents and instruments of
transfer or assignment and take such other actions as shall reasonably be
requested by such Seller to effect the conveyance of such Receivables pursuant
to this Section. The obligation of such Seller to repurchase any such Receivable
shall constitute the
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sole remedy respecting the event giving rise to such obligation available to the
Buyer and to the Certificateholders (or the Trustee on behalf of
Certificateholders).
Section 2.4 Addition of Accounts. (a) Each Seller may from time to time
offer to voluntarily designate additional Eligible Accounts to be included as
Accounts, subject to the conditions specified in paragraph (b) below. If any
such offer is accepted by the Buyer, Receivables and Collateral Security, if
any, from such Additional Accounts shall be sold to the Buyer (or contributed to
the Buyer in accordance with Section 2.1) effective on a date (the "Addition
Date") specified in a written notice provided by the Seller (or the Servicer on
its behalf) to the Buyer and any Enhancement Providers specifying the Additional
Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition
Notice") on or before the fifth Business Day but not more than the 30th day
prior to the related Addition Date or, if the Automatic Addition Condition is
satisfied, on the Determination Date following the Collection Period in which
such Addition Dates occur (the "Notice Date"). An Addition Notice may relate to
one or more Accounts on one or more Addition Dates.
(b) Each Seller shall be permitted to convey to the Buyer the
Receivables and all Collateral Security, if any, related thereto in any
Additional Accounts designated by such Seller as such pursuant to Section 2.4(a)
only upon satisfaction of each of the following conditions on or prior to the
related Addition Date (except for the condition in clause (vii), if applicable,
which shall be satisfied on or before the tenth Business Day after such Notice
Date):
(i) Such Seller shall provide the Buyer and any Enhancement
Providers with a timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) Such Seller shall have delivered to the Buyer a duly executed
written assignment (including an acceptance by the Buyer) covering the
Receivables specified in the Addition Notice in substantially the form of
Exhibit A modified, if applicable, to reflect contributions to (and by)
the general partner of the Buyer (the "Assignment") and the computer file
or microfiche or written list required to be delivered pursuant to Section
2.1.
(iv) Such Seller shall have delivered to the Buyer for deposit in
the Collection Account all Collections with respect to such Additional
Accounts since the Additional Cut-Off Date.
(v) No selection procedures believed by such Seller to be adverse
to the interests of the Buyer or the Beneficiaries were used in selecting
such Additional Accounts; (B) the list of Additional Accounts delivered
pursuant to clause (iii) above is true and correct in all material
respects as of the Additional Cut-Off Date and (C) as of each of the
Notice Date and the Addition Date, neither such Seller, the Buyer nor the
servicer are insolvent nor will have been made insolvent by such transfer
nor are aware of any pending insolvency.
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(vi) If the Automatic Addition Condition is not satisfied with
respect to such addition, the Rating Agency Condition shall have been
satisfied with respect to such addition.
(vii) If (A) one or more of the Additional Accounts specified in
such Addition Notice will contain Receivables secured by a security
interest in a type of Product that has not been previously financed in the
Floorplan Business or (B) one or more of the Additional Accounts is
supported by a Floorplan Agreement with a Manufacturer that, as of the
related Addition Date, is not an Existing Manufacturer, then, whether or
not the Automatic Condition is satisfied, the Rating Agency Condition
shall have been satisfied in respect of the addition of each Additional
Account specified in clauses (A) and (B) on or prior to the related
Addition Date.
(viii) The addition of the Receivables arising in such Additional
Accounts shall not result in the occurrence of an Early Amortization
Event.
(ix) Such Seller shall have delivered to the Buyer and any
Enhancement Providers a certificate of a Vice President or more senior
officer confirming the items set forth in paragraphs (ii) through (vi) and
(viii) above.
(x) Such Seller shall have delivered to the Trustee and any
Enhancement Providers (A) an Opinion of Counsel with respect to the
Receivables in the Additional Accounts added since the last delivery of
such opinion substantially in the form of Exhibit G-2 to the Pooling and
Servicing Agreement and (B) except in the case of an addition in
connection with an addition of Receivables by the Buyer to the Trust
required by Section 2.5(a) of the Pooling and Servicing Agreement, a Tax
Opinion with respect to such addition; provided that if such Opinion of
Counsel and Tax Opinion are required to be delivered, they shall be
rendered by outside counsel no less frequently than quarterly.
(c) Each Seller hereby represents and warrants as of the applicable
Addition Date as to the matters set forth in Section 2.4(b)(v). The
representations and warranties set forth in Section 2.4(b)(v) shall survive the
sale and assignment of the respective Receivables and Collateral Security, if
any, to the Buyer. Upon discovery by either Seller or the Buyer of a breach of
any of the foregoing representations and warranties, the party discovering the
breach shall give prompt written notice to the other parties and to any
Enhancement Providers.
(d) Notwithstanding anything in this Section 2.4 to the contrary, the
additions of Additional Accounts pursuant to Section 2.5 on or prior to the
Closing Date for Series 1994-1 need not satisfy clause (i), (vi), (vii) or (x).
Section 2.5 Covenants of the Sellers. Each Seller hereby covenants that:
(a) No Liens. Except for the conveyances hereunder and the
conveyance of Participation Interests pursuant to the terms of any
Participation Agreements, such Seller will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to
exist any Lien on, any Receivable or any Collateral Security, whether now
existing or hereafter created, or any interest therein, and such Seller
shall defend the right, title and interest of the Buyer and the Trust in,
to and under the Receivables and the
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Collateral Security, whether now existing or hereafter created, against
all claims of third parties claiming through or under such Seller.
(b) Financing Agreements and Guidelines. Each Seller shall comply
with and perform its servicing obligations with respect to the Accounts
and Receivables in accordance with (i) the Wholesale Financing Agreements,
Accounts Receivable Financing Agreements, Asset Based Lending Financing
Agreements and Unsecured Receivable Financing Agreements relating to the
Accounts and (ii) the Financing Guidelines, except insofar as any failure
to so comply or perform would not materially and adversely affect the
rights of the Buyer, the Trust or any of the Beneficiaries. Subject to
compliance with all Requirements of Law, such Seller may change the terms
and provisions of (i) the Wholesale Financing Agreements, Accounts
Receivable Financing Agreements, Asset Based Lending Financing Agreements
and Unsecured Receivable Financing Agreements or (ii) the Financing
Guidelines in any respect (including the calculation of the amount or the
timing of charge-offs and the rate of the finance charge assessed thereon)
only if such change would be permitted pursuant to Section 3.1(d) of the
Pooling and Servicing Agreement.
(c) Account Allocations. In the event that such Seller is unable
for any reason to transfer Receivables to the Buyer, then such Seller
agrees that it shall allocate, after the occurrence of such event,
payments on each Account with respect to the principal balance of such
Account first to the oldest principal balance of such Account and to have
such payments applied as Collections in accordance with the terms of the
Pooling and Servicing Agreement. The parties hereto agree that
Non-Principal Receivables, whenever created, accrued in respect of
Principal Receivables which have been conveyed to the Buyer and by the
Buyer to the Trust shall continue to be a part of the Trust
notwithstanding any cessation of the transfer of additional Principal
Receivables to the Buyer and Collections with respect thereto shall
continue to be allocated and paid in accordance with Article IV of the
Pooling and Servicing Agreement.
(d) Delivery of Collections. In the event that such Seller
receives Collections, such Seller agrees to pay the Servicer or any
Successor Servicer all payments received by the Seller in respect of the
Receivables as soon as practicable after receipt thereof by such Seller,
but in no event later than two Business Days after the receipt by such
Seller thereof.
(e) Notice of Liens. Each Seller shall notify the Buyer and the
Trustee promptly after becoming aware of any Lien on any Receivable
conveyed by such Seller other that the conveyances hereunder or under the
Pooling and Servicing Agreement.
(f) Compliance with Law. Each Seller hereby agrees to comply in
all material respects with all Requirements of Law applicable to such
Seller.
(g) Concentration of Risk. In order to avoid a concentration of
the risks associated with participating its extensions of credit to
Dealers, each Seller may create Participation Interests in its receivables
to be sold or contributed to the Buyer in the same
10
manner and using the same standards as such Seller does in creating
participation interests in receivables to be retained by such Seller.
(h) Limitation on Creation of Participation Interests. Such Seller
shall not create Participation Interests in its receivables to the extent
that the creation of such Participation Interests would, at the time of
such creation, cause the Pool Balance to be less than the Required
Participation Amount.
(i) Performance of Floorplan Agreements. Such Seller shall perform
its obligations under each Floorplan Agreement in accordance with the
terms thereof in all material respects.
Section 2.6 Removal of Eligible Accounts. (a) On each Determination Date
on which Accounts, including all amounts then held by the Trust or thereafter
received by the Trust with respect to such Accounts, are removed from the Trust
pursuant to Section 2.7 of the Pooling and Servicing Agreement, the Buyer shall
be deemed to have offered to the applicable Seller automatically and without
notice to or action by or on behalf of the Buyer, the right to remove Eligible
Accounts from the operation of this Agreement in the manner prescribed in
Section 2.6(b), subject to Section 2.6(d). The termination of an Account by a
Dealer upon such Dealer's payment in full of such Account shall not be a removal
of an Account under this Section.
(b) To accept such offer and remove Accounts, including all amounts then
held by the Trust or thereafter received by the Trust with respect to such
Accounts, the applicable Seller (or the Servicer on its behalf) shall take the
following actions and make the following determinations:
(i) not less than five Business Days prior to the Removal Date,
furnish to the Buyer, the Trustee, any Enhancement Providers and the
Rating Agencies a written notice (the "Removal Notice") specifying the
Determination Date (which may be the Determination Date on which such
notice is given) on which removal of the Receivables of one or more
Accounts (the "Removed Accounts") will occur (a "Removal Date");
(ii) from and after such Removal Date, cease to transfer to the
Buyer any and all Receivables arising in such Removed Accounts;
(iii) represent and warrant that the removal of any such Eligible
Account on any Removal Date shall not, in the reasonable belief of such
Seller, cause an Early Amortization Event to occur or cause the Pool
Balance to be less than the Required Participation Amount;
(iv) represent and warrant that no selection procedures believed by
such Seller to be adverse to the interests of the Beneficiaries were
utilized in selecting the Accounts to be removed; and
(v) on or before the fifth Business Day after the Removal Date,
furnish to the Trustee a computer file, microfiche list or other list of
the Removed Accounts that were removed on the Removal Date, specifying for
each Removed Account as of the date of the Removal Notice its number, the
aggregate amount outstanding in such Removed
11
Account and the aggregate amount of Principal Receivables therein and
represent that such computer file, microfiche list or other list of the
Removed Accounts is true and complete in all material respects.
(c) Subject to Section 2.6(b), on the Removal Date with respect to any
such Removed Account, such Removed Account shall be deemed removed by operation
of this Agreement for all purposes. After the Removal Date and upon the written
request of the Servicer, the Buyer, subject to Section 2.6(d), shall deliver to
the applicable Seller a reassignment in substantially the form of Exhibit C (the
"Reassignment").
(d) Notwithstanding any other provision of this Agreement, the Buyer
shall have the right to consent or to decline to consent to any removal of
Removed Accounts (and the related Receivables) to a Seller pursuant to this
Section 2.6. If the Buyer declines to consent to any such removal of Removed
Accounts (and the related Receivables) to a Seller, the Buyer shall provide
notice thereof to the Rating Agencies.
Section 2.7 Removal of Ineligible Accounts. (a) On any date on which an
Account becomes an Ineligible Account (which shall be deemed the Removal
Commencement Date with respect to such Account), the applicable Seller shall
commence removal of such Ineligible Account in the manner prescribed in Section
2.7(b).
(b) With respect to each Account that becomes an Ineligible Account, the
applicable Seller (or the Servicer on its behalf) shall take the following
actions and make the following determinations:
(i) furnish to the Buyer, the Trustee and any Enhancement
Providers a Removal Notice specifying a Removal Commencement Date and the
Ineligible Accounts to be treated as Designated Accounts;
(ii) determine on the Removal Commencement Date with respect to
such Designated Accounts the Designated Balance with respect to each such
Designated Account and amend Schedule 1 by delivering to the Buyer a
computer file or microfiche or written list containing a true and complete
list of the Removed Accounts specifying for each such Account, as of the
Removal Commencement Date, its account number, the aggregate amount of
Receivables outstanding in such Account and the Designated Balance;
(iii) from and after such Removal Commencement Date, cease to
transfer to the Buyer any and all Receivables arising in such Designated
Accounts;
(iv) if such Account was an Ineligible Account at the time it was
originally designated as an Account, from and after such Removal
Commencement Date, allocate Collections of Principal Receivables in
respect of each Designated Account, first to the oldest outstanding
principal balance of such Designated Account, until the Removal Date with
respect thereto; and
(v) if such Account was an Ineligible Account at the time it was
originally designated as an Account, on each Business Day from and after
such Removal
12
Commencement Date to and until the related Removal Date, allocate (A) to
the Buyer Defaulted Receivables and Collections of Non-Principal
Receivables and Collections of Non-Principal Receivables in respect of
each Designated Account, based on the ratio of the aggregate amount of
Principal Receivables in all Designated Accounts sold to the Buyer on such
Business Day to the total aggregate amount of Principal Receivables in all
such Designated Accounts on such Business Day and (B) to such Seller, the
remainder of the Defaulted Receivables and Collections of Non-Principal
Receivables in all such Designated Accounts on such Business Day.
(c) On the Removal Date with respect to any such Designated Account,
such Seller shall cease to allocate any Collections therefor in accordance
herewith and such Designated Account shall be deemed a Removed Account. After
the Removal Date and upon the written request of the Servicer, the Buyer shall
deliver to such Seller a Reassignment; provided, however, that notwithstanding
any other provision of this Agreement, unless such Account was an Ineligible
Account at the time it was originally designated as an Account, the Reassignment
shall reassign only the Account and shall not reassign any Receivable existing
in such Account as of the related Removal Date.
Section 2.8 Sale of Ineligible Receivables. Each Seller shall sell to the
Buyer on each Transfer Date any and all Receivables arising in any Eligible
Accounts that are Ineligible Receivables, provided that on the Cut-Off Date or,
in the case of Receivables arising in Additional Accounts, on the related
Additional Cut-Off Date, and on the applicable Transfer Date, the Account in
which such Receivables arise is an Eligible Account.
ARTICLE III
Administration and Servicing of Receivables
Section 3.1 Acceptance of Appointment and Other Matters Relating to the
Servicer. (a) DFS agrees to act as the Servicer under this Agreement and the
Pooling and Servicing Agreement, and the Buyer consents to DFS acting as
Servicer. DFS will have ultimate responsibility for servicing, managing and
making collections on the Receivables and will have the authority to make any
management decisions relating to such Receivables, to the extent such authority
is granted to the Servicer under this Agreement and the Pooling and Servicing
Agreement.
(b) DFS shall service and administer the Receivables in accordance with
the revisions of the Pooling and Servicing Agreement.
Section 3.2 Servicing Compensation. As full compensation for its servicing
activities hereunder and under the Pooling and Servicing Agreement, DFS shall be
entitled to receive the Servicing Fee on each Distribution Date so long as it is
the Servicer under the Pooling and Servicing Agreement. The Servicing Fee shall
be paid in accordance with the terms of the Pooling and Servicing Agreement.
13
ARTICLE IV
Rights of Certificateholders and
Allocation and Application of Collections
Section 4.1 Allocations and Applications of Collections and Other Funds.
The Servicer will apply all Collections with respect to the Receivables and all
funds on deposit in the Collection Account as described in Article IV of the
Pooling and Servicing Agreement.
ARTICLE V
Other Matters Relating to the Sellers
Section 5.1 Merger or Consolidation of, or Assumption of, the Obligations
of the Sellers. Neither Seller shall consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(a) the corporation formed by such consolidation or into which
such Seller is merged or the Person which acquires by conveyance or
transfer the properties and assets of such Seller substantially as an
entirety shall be a corporation organized and existing under the laws of
the United States of America or any State or the District of Columbia and,
if such Seller is not the surviving entity, such corporation shall assume,
without the execution or filing of any paper or any further act on the
part of any of the parties hereto, the performance of every covenant and
obligation of such Seller hereunder; and
(b) such Seller has delivered to the Buyer and the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer comply with this Section 5.1
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 5.2 Sellers' Indemnification of the Buyer. Each Seller shall
indemnify and hold harmless the Buyer, from and against any loss, liability,
expense, claim, damage or injury suffered or sustained by reason of any acts,
omissions or alleged acts or omissions arising out of activities of such Seller
pursuant to this Agreement arising out of or based on the arrangement created by
this Agreement and the activities of such Seller taken pursuant thereto,
including any judgment, award, settlement, reasonable attorneys' fees and other
costs or expenses incurred in connection with the defense of any actual or
threatened action, proceeding or claim; provided, however, that such Seller
shall not indemnify the Buyer if such acts, omissions or alleged acts or
omissions constitute fraud, gross negligence or wilful misconduct by the Buyer;
and provided further, that such Seller shall not indemnify the Buyer for any
liabilities, cost or expense of the Buyer with respect to any federal, state or
local income or franchise taxes (or any interest or penalties with respect
thereto) required to be paid by the Buyer in connection herewith to any taxing
authority. Any indemnification under this Article V shall survive the
termination of the Agreement.
14
ARTICLE VI
Termination
This Agreement will terminate immediately after the Trust terminates
pursuant to the Pooling and Servicing Agreement. In addition, the Buyer shall
not purchase Receivables from a Seller nor shall a Seller designate Additional
Accounts if such Seller shall become an involuntary party to (or be made the
subject of) any proceeding provided for by any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
such Seller or relating to all or substantially all of its property (an
"Involuntary Case") and such Involuntary Case shall have continued for a period
of ten Business Days from and including the day of receipt by such Seller at its
principal corporate office of notice of such Involuntary Case; provided, that
during such ten Business Day period, the Buyer shall suspend its purchase of
Receivables and shall hold all Collections of Principal Receivables that would
have been available to purchase Receivables in the Collection Account and (a) if
by the first Business Day after such ten Business Day period, the Buyer has not
obtained an order from the court having jurisdiction of such case or filing
which order approves the continuation of the sale of Receivables by such Seller
to the Buyer and which provides that the Buyer and any of its transferees
(including the Trustee) may rely on such order for the validity and nonavoidance
of such transfer (the "Order"), the Buyer shall hold such Collections in the
Collection Account until such time as they may be paid as elsewhere provided
herein and shall not purchase Receivables thereafter or designate Additional
Accounts for transfer to the Buyer, or (b) if by such first Business Day, the
Buyer has obtained such Order, such Seller may continue selling Receivables, and
the Buyer may continue purchasing Receivables, pursuant to the terms hereof, as
modified by the immediately succeeding sentence. During the period after the ten
Business Day period described above and before the end of the 60-day period
described below, the purchase price of the Receivables transferred during such
period, notwithstanding anything in this Agreement to the contrary, shall be
paid to such Seller by the Buyer in cash not later than the same Business Day of
any sale of Receivables. During such period, Receivables will be considered
transferred to the Buyer only to the extent that the purchase price therefor has
been paid in cash on the same Business Day. If an Order is obtained but
subsequently is reversed or rescinded or expires, such Seller shall immediately
cease selling Receivables to the Buyer and the Buyer shall immediately cease
buying Receivables. Each Seller shall give prompt written notice to each of the
Buyer and the Trustee immediately upon becoming a party to an Involuntary Case.
If by the first Business Day after the 60-day period after such involuntary
filing, such Involuntary Case has not been dismissed, the Buyer shall not
purchase thereafter Receivables or designated Additional Accounts for transfer
to the Issuer.
ARTICLE VII
Miscellaneous Provisions
Section 7.1 Amendment. (a) This Agreement may be amended from time to time
by the Sellers and the Buyer; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel for the Sellers addressed and delivered to
the Trustee, adversely affect in any material respect the interests of any
Investor Certificateholder.
15
(b) This Agreement may also be amended from time to time by the Buyer
and the Sellers with the consent of the Holders of Investor Certificates
evidencing more than 50% of the aggregate unpaid principal amount of the
Investor Certificates of all materially adversely affected Series, for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Sellers; provided, however, that no such amendment shall (i) reduce in any
manner the amount of or delay the timing of any distributions to be made to
Investor Certificateholders or deposits of amounts to be so distributed with the
amount available under any Enhancement without the consent of each affected
Investor Certificateholder, (ii) change the definition of or the manner of
calculating the interest of any Investor Certificateholders without the consent
of each affected Certificateholder, (iii) reduce the aforesaid percentage
required to consent to any such amendment without the consent of each
Certificateholder or (iv) adversely affect the rating of any Series or Class by
any Rating Agency without the consent of the Holders of all of the Investor
Certificates of such Series or Class. Any amendment to be effected pursuant to
this paragraph shall be deemed to materially adversely affect all outstanding
Series, other than any Series with respect to which such action shall not, as
evidenced by an Opinion of Counsel for the Sellers, addressed and delivered to
the Trustee, adversely affect in any material respect the interests of any
Investor Certificateholder of such Series. The Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Trustee's rights,
duties or immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent (other
than an amendment pursuant to paragraph (a)), the Sellers shall furnish
notification of the substance of such amendment to each Investor
Certificateholder, each Enhancement Provider, each Agent and each Rating Agency.
(d) It shall not be necessary for the consent of Investor
Certificateholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Investor Certificateholders shall be
subject to such reasonable requirements as the Trustee may prescribe.
(e) Notwithstanding anything in this Section to the contrary, no
amendment may be made to this Agreement which would adversely affect in any
material respect the interests of any Enhancement Provider without the consent
of such Enhancement Provider.
(f) Deutsche BSC ratifies and affirms, and shall be deemed to be a party
to, that certain amendment dated as of January 24, 1996 among DFS, the Buyer and
the Trustee.
Section 7.2 Protection of Right, Title and Interest to Receivables. (a)
The Sellers shall cause this Agreement, all amendments hereto and/or all
financing statements and continuation statements and any other necessary
documents covering the Buyer's right, title and interest to the Receivables and
Collateral Security relating thereto to be promptly recorded, registered and
filed, and at all times to be kept recorded, registered and filed, all in such
manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of the Buyer hereunder. Each Seller shall
deliver to the Buyer file-stamped copies of, or filing receipts for, any
document recorded, registered or filed as provided above, as soon as available
following
16
such recording, registration or filing. The Buyer shall cooperate fully with the
Sellers in connection with the obligations set forth above and will execute any
and all documents reasonably required to fulfill the intent of this Section
7.2(a).
(b) Within 30 days after a Seller makes any change in its name, identity
or corporate structure which would make any financing statement or continuation
statement filed in accordance with Section 7.2(a) seriously misleading within
the meaning of Section 9-402(7) of the UCC as in effect in the State of Missouri
or the State of Georgia, as applicable, or such other applicable jurisdiction,
such Seller shall give the Buyer and any Agent notice of any such change and
shall file such financing statements or amendments as may be necessary to
continue the perfection of the Buyer's security interest in the Receivables and
the proceeds thereof.
(c) Each Seller will give the Buyer prompt written notice of any
relocation of any office at which it keeps Records concerning the Receivables or
of its principal executive office if, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new financing
statement and shall file such financing statements or amendments as may be
necessary to perfect or to continue the perfection of the Buyer's security
interest in the Receivables and the proceeds thereof. Each Seller will at all
times maintain its principal executive offices within the United States of
America.
(d) Each Seller will deliver to the Buyer upon the execution and
delivery of each amendment of this Agreement, an Opinion of Counsel to the
effect specified in Exhibit B.
Section 7.3 Limited Recourse. Notwithstanding anything to the contrary
contained herein, the obligations of the Buyer hereunder shall not be recourse
to the Buyer (or any person or organization acting on behalf of the Buyer or any
affiliate, Officer or director of the Buyer), other than to (a) the portion of
the Seller's Interest on any date of determination which is in excess of the
Required Participation Amount and (b) any other assets of the Buyer not pledged
to third parties or otherwise encumbered in a manner permitted by the Buyer's
Partnership Agreement; provided, however, that any payment by the Buyer made in
accordance with this Section 7.3 shall be made only after payment in full of any
amounts that the Buyer is obligated to deposit in the Collection Account
pursuant to this Agreement; provided further that the Investor
Certificateholders shall be entitled to the benefits of the subordination of the
Collections allocable to the Seller's Interest to the extent provided in the
Supplements.
Section 7.4 No Petition. Each Seller hereby covenants and agrees that it
will not at any time institute against the Buyer or Deutsche FRI any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law.
Section 7.5 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
17
Section 7.6 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, to the
parties at such addresses specified in the Pooling and Servicing Agreement or,
in the case of notices to Deutsche BSC, to the following address: 655 Maryville
Centre Drive, St. Louis, Missouri 63141, Attention: Secretary.
Section 7.7 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or rights of the Certificateholders.
Section 7.8 Assignment. Notwithstanding anything to the contrary contained
herein, this Agreement may not be assigned by either Seller without the prior
consent of the Buyer and the Trustee. The Buyer may assign its rights, remedies,
powers and privileges under this Agreement to the Trust pursuant to the Pooling
and Servicing Agreement.
Section 7.9 Further Assurances. Each Seller agrees to do and perform, from
time to time, any and all acts and to execute any and all further instruments
required or reasonably requested by the Buyer more fully to effect the purposes
of this Agreement, including the execution of any financing statements or
continuation statements relating to the Receivables for filing under the
provisions of the UCC of any applicable jurisdiction.
Section 7.10 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Buyer, any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section 7.11 Counterparts. This Agreement may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
Section 7.12 Third-Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties hereto, the Certificateholders, the
Trustee and the other Beneficiaries and their respective successors and
permitted assigns. Except as otherwise provided in this Agreement, no other
Person will have any right or obligation hereunder.
Section 7.13 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
Section 7.14 Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
18
Section 7.15 Continued Effectiveness of the Receivables Contribution and
Sale Agreement. As amended and restated hereby, the Receivables Contribution and
Sale Agreement shall continue to be in full force and effect and is hereby
ratified and confirmed in all respects.
Section 7.16 Submission to Jurisdiction. Each of the parties hereto hereby
irrevocably and unconditionally: (a) submits for itself and its property in any
legal action or proceeding relating to this Agreement, the Assignments, the
Reassignments or the other documents executed and delivered in connection
herewith or for recognition and enforcement of any judgment in respect thereof,
to the non-exclusive general jurisdiction of the courts of the State of New
York, the courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof;
(a) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of such action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead or claim the same;
(b) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Person at its
address determined in accordance with Section 7.6; and
(c) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to sue
in any other jurisdiction.
19
IN WITNESS WHEREOF, the Sellers and the Buyer have caused this Receivables
Contribution and Sale Agreement to be duly executed by their respective officers
as of the day and year first above written.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.,
Buyer
By:DEUTSCHE FLOORPLAN RECEIVABLES,
INC., its general partner
By: /s/ Richard H. Schumacher
Name: Richard H. Schumacher
Title: President
By: /s/ Naran Burchinow
Name: Naran Burchinow
Title:
|
DEUTSCHE FINANCIAL SERVICES
CORPORATION, Seller
By: /s/ Richard H. Schumacher
Name: Richard H. Schumacher
Title: Senior Vice President
By: /s/ Naran Burchinow
Name: Naran Burchinow
Title:
|
DEUTSCHE BUSINESS SERVICES
CORPORATION, Seller
By: /s/ Richard H. Schumacher
Name: Richard H. Schumacher
Title:
By: /s/ Naran Burchinow
Name: Naran Burchinow
Title:
|
20
EXHIBIT A
TO RCSA
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.4
of the Receivables Contribution and Sale Agreement)
ASSIGNMENT No. ___ OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of
________________, ____ this "Assignment"), between Deutsche Floorplan
Receivables, L.P., as buyer (the "Buyer"), and [Deutsche Financial Services
Corporation], [Deutsche Business Services Corporation] as seller [contributor]
(the "Seller"), pursuant to the Receivables Contribution and Sale Agreement
referred to below.
W I T N E S E T H:
WHEREAS DFS, Deutsche BSC and the Buyer are parties to a Receivables
Contribution and Sale Agreement dated as of December 1, 1993, amended and
restated as of March 1, 1994, amended as of January 24, 1996 and amended and
restated as of October 1, 1996 (as amended or supplemented, the "Receivables
Contribution and Sale Agreement");
WHEREAS, pursuant to the Receivables Contribution and Sale Agreement, the
Seller wishes to designate Additional Accounts to be included as Accounts and to
convey the Receivables and related Collateral Security of such Additional
Accounts, whether now existing or hereafter created, to the Buyer as part of the
corpus of the Trust (as each such term is defined in the Receivables
Contribution and Sale Agreement); and
WHEREAS the Buyer is willing to accept such designation and conveyance
subject to the terms and conditions hereof;
NOW, THEREFORE, the Seller and the Buyer hereby agree as follows:
1. Defined Terms. All capitalized terms used herein (including in the
recitals hereto) shall have the meanings ascribed to them in the Receivables
Contribution and Sale Agreement unless otherwise defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
designated hereby, ___________, 19___.
2. Designation of Additional Accounts. The Seller hereby delivers
herewith a computer file or microfiche or written list containing a true and
complete list of all such Additional Accounts specifying for each such Account,
as of the Additional Cut-Off Date, its account number, the aggregate amount of
Receivables outstanding in such Account and the aggregate amount of Principal
Receivables in such Account. Such file or list shall, as of the date of this
Assignment, supplement Schedule 1 to the Receivables Contribution and Sale
Agreement.
A-1
3. Conveyance of Receivables. (a) The Seller does hereby [sell]
[contribute], transfer, assign, set over and otherwise convey, without recourse
(except as expressly provided in the Receivables Contribution and Sale
Agreement), to the Buyer, on the Addition Date all of its right, title and
interest in, to and under the Receivables in such Additional Accounts, all
Collateral Security and the related Floorplan Rights with respect thereto, owned
by the Seller and existing at the close of business on the Additional Cut-Off
Date and thereafter created from time to time, all monies due or to become due
and all amounts received with respect thereto and all proceeds (including
"proceeds" as defined in Section 9-306 of the UCC as in effect in the [State of
Missouri] [State of Georgia] and Recoveries) thereof. The foregoing [sale]
[contribution], transfer, assignment, set-over and conveyance does not
constitute and is not intended to result in the creation or an assumption by the
Buyer of any obligation of the Servicer, the Seller or any other Person in
connection with the Accounts, the Receivables or under any agreement or
instrument relating thereto, including any obligation under the Financing
Agreement, Floorplan Agreement and any Participation Agreement, including any
other obligation to any Dealer or Manufacturer.
(b) In connection with such [sale] [contribution], the Seller agrees to
record and file, at its own expense, a financing statement on form UCC-1 (and
continuation statements when applicable) with respect to the Receivables now
existing and hereafter created for the sale of chattel paper, accounts and
general intangibles (as defined in Section 9-105 or 9-106 of the UCC as in
effect in any state where the Seller's or the Servicer's chief executive offices
or books and records relating to the Receivables are located) meeting the
requirements of applicable state law in such manner and in such jurisdictions as
are necessary to perfect the sale and assignment of the Receivables and the
Collateral Security to the Buyer, and to deliver a file-stamped copy of such
financing statements or other evidence of such filing to the Buyer on or prior
to the Addition Date to the extent, if any, that the UCC-1 financing statements
filed pursuant to Section 2.1 of the Receivables Contribution and Sale Agreement
are not sufficient for such purpose. In addition, the Seller shall cause to be
timely filed in the appropriate filing office any UCC-1 financing statement and
continuation statement necessary to perfect any sale of Receivables to the
Seller. The Buyer shall be under no obligation whatsoever to file such financing
statement, or a continuation statement to such financing statement, or to make
any other filing under the UCC in connection with such [sale] [contribution].
The parties hereto intend that the [sales] [contributions] of Receivables
effected by this Agreement be [sales] [true contributions].
(c) In connection with such [sale] [contribution], the Seller further
agrees, at its own expense, on or prior to the Addition Date, to indicate in its
books and records, which may include its computer files, that the Receivables
created in connection with the Additional Accounts designated hereby have been
sold and the Collateral Security assigned to the Buyer pursuant to this
Assignment and sold to the Trust pursuant to the Pooling and Servicing Agreement
for the benefit of the Certificateholders and the other Beneficiaries.
4. Acceptance by Buyer. Subject to the satisfaction of the conditions
set forth in Section 6 of this Assignment, the Buyer hereby acknowledges its
acceptance of all right, title and interest to the property, now existing and
hereafter created, conveyed to the Buyer pursuant to Section 3(a) of this
Assignment. The Buyer further acknowledges that, prior to or simultaneously with
the execution and delivery of this Assignment, the Seller delivered to the
A-2
Buyer the computer file or microfiche or written list relating to the Additional
Accounts described in Section 2 of this Assignment.
5. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Buyer, on behalf of the Trust, as of the date of
this Assignment and as of the Addition Date that:
(a) Legal, Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect affecting creditors, rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity);
(b) Organization and Good Standing. The Seller is a corporation
duly organized and validly existing and in good standing under the law of
the State of its incorporation and has, in all material respects, full
corporate power, authority and legal right to own its properties and
conduct its business as such properties are presently owned and such
business is presently conducted, and to execute, deliver and perform its
obligations under this Assignment;
(c) Due Qualification. The Seller is duly qualified to do business
and, where necessary, is in good standing as a foreign corporation (or is
exempt from such requirement) and has obtained all necessary licenses and
approvals in each jurisdiction in which the conduct of its business
requires such qualification except where the failure to so qualify or
obtain licenses or approvals would not have a material adverse effect on
its ability to perform its obligations hereunder;
(d) Eligible Accounts. Each Additional Account designated hereby
is an Eligible Account;
(e) Selection Procedures. No selection procedures believed by the
Seller to be adverse to the interests of the Beneficiaries were utilized
in selecting the Additional Accounts designated hereby;
(f) Insolvency. As of the Notice Date and the Addition Date, the
Seller is not insolvent nor, after giving effect to the conveyance set
forth in Section 3 of this Assignment, will it have been made insolvent,
nor is it aware of any pending insolvency;
(g) Valid Transfer. This Assignment constitutes a valid [sale]
[contribution], transfer and assignment to the Buyer of all right, title
and interest of the Seller in the Receivables and the Collateral Security
and the proceeds thereof and upon the filing of the financing statements
described in Section 3 of this Assignment with the Secretary of State of
the State of [Missouri] [and other applicable states and counties] and, in
the case of the Receivables [and the Collateral Security] hereafter
created and the proceeds thereof, upon the creation thereof, the Buyer
shall have a first priority perfected ownership interest in such property,
except for Liens permitted under Section 2.6(a) of the Receivables
Contribution and Sale Agreement;
A-3
(h) Due Authorization. The execution and delivery of this
Assignment and the consummation of the transactions provided for or
contemplated by this Assignment have been duly authorized by the Seller by
all necessary corporation action on the part of the Seller;
(i) No Conflict. The execution and delivery of this Assignment,
the performance of the transactions contemplated by this Assignment and
the fulfillment of the terms hereof, will not conflict with, result in any
breach of any of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a material default under, any
indenture, contract, agreement, mortgage, deed of trust, or other
instrument to which the Seller is a party or by which it or its properties
are bound;
(j) No Violation. The execution and delivery of this Assignment by
the Seller, the performance of the transactions contemplated by this
Assignment and the fulfillment of the terms hereof will not conflict with
or violate any material Requirements of Law applicable to the Seller;
(k) No Proceedings. There are no proceedings or, to the best
knowledge of the Seller, investigations pending or threatened against the
Seller before any Governmental Authority (i) asserting the invalidity of
this Assignment, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Assignment, (iii) seeking any
determination or ruling that, in the reasonable judgment of the Seller,
would materially and adversely affect the performance by the Seller of its
obligations under this Assignment, (iv) seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Assignment or (v) seeking to affect adversely the
income tax attributes of the Trust under the United States federal or any
State income, single business or franchise tax systems;
(l) Record of Accounts. As of the Addition Date, Schedule 1 to
this Assignment is an accurate and complete listing in all material
respects of all the Additional Accounts as of the Additional Cut-Off Date
and the information contained therein with respect to the identity of such
Accounts and the Receivables existing thereunder is true and correct in
all material respects as of the Additional Cut-Off Date;
(m) No Liens. Each Receivable and all Collateral Security existing
on the Addition Date has been conveyed to the Buyer free and clear of any
Lien;
(n) All Consents Required. With respect to each Receivable and all
Collateral Security existing on the Addition Date, all consents, licenses,
approvals or authorizations of or registrations or declarations with any
Governmental Authority required to be obtained, effected or given by the
Seller in connection with the conveyance of such Receivable or Collateral
Security to the Buyer, the execution and delivery of this Assignment and
the performance of the transactions contemplated hereby have been duly
obtained, effected or given and are in full force and effect; and
(o) Eligible Receivables. On the Additional Cut-Off Date each
Receivable conveyed to the Buyer as of such date is an Eligible Receivable
or, if such Receivable is
A-4
not an Eligible Receivable, such Receivable is conveyed to the Buyer in
accordance with Section 2.8 of the Receivables Contribution and Sale
Agreement.
6. Conditions Precedent. The acceptance of the Buyer set forth in
Section 4 of this Assignment is subject to the satisfaction, on or prior to the
Addition Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by the Seller in Section 5 of this Assignment shall be
true and correct as of the date of this Assignment and as of the Addition
Date;
(b) Agreement. Each of the conditions set forth in Section 2.4(b)
of the Receivables Contribution and Sale Agreement applicable to the
designation of the Additional Accounts to be designated hereby shall have
been satisfied; and
(c) Addition Information. The Seller shall have delivered to the
Buyer such information as was reasonably requested by the Buyer to satisfy
itself as to the accuracy of the representation and warranty set forth in
Section 5(d) of this Assignment.
7. Ratification of Agreement. As supplemented by this Assignment, the
Receivables Contribution and Sale Agreement is in all respects ratified and
confirmed and the Receivables Contribution and Sale Agreement as so supplemented
by this Assignment shall be read, taken and construed as one and the same
instrument.
8. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties in separate counterparts), each of which
shall be an original but all of which together shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-5
IN WITNESS WHEREOF, the Seller and the Buyer have caused this Assignment
to be duly executed and delivered by their respective duly authorized officers
as of the day and the year first above written.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.,
as Buyer
By: DEUTSCHE FLOORPLAN RECEIVABLES, INC.,
its general partner
By:_____________________________________
Name:
Title
By:_____________________________________
Name:
Title
[DEUTSCHE FINANCIAL SERVICES
CORPORATION], as Seller
By:_____________________________________
Name:
Title
By:_____________________________________
Name:
Title
[DEUTSCHE BUSINESS SERVICES
CORPORATION], as Seller
By:_____________________________________
Name:
Title
By:_____________________________________
Name:
Title
A-6
EXHIBIT B
TO RCSA
FORM OF OPINION OF COUNSEL
(As required by Section 7.2(d) of
the Receivables Contribution and Sale Agreement)
(a) The Amendment to the Receivables Contribution and Sale Agreement,
attached hereto as Schedule 1 (the "Amendment"), has been duly authorized,
executed and delivered by each Seller and constitutes the legal, valid and
binding agreement of each Seller, enforceable in accordance with its terms
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally from time to time in effect. The enforceability of each
Seller's obligations is also subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
(b) The Amendment has been entered into in accordance with the terms and
provisions of Section 7.1 of the Receivables Contribution and Sale Agreement.
(c) The Amendment will not adversely affect in any material respect the
interests of the Investor Certificateholders. [Include this clause (iii) only in
the case of amendments effected pursuant to Section 7.1(a) of the Receivables
Contribution and Sale Agreement.]
B-1
EXHIBIT C
TO RCSA
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
(As required by Section 2.6 of the Receivables
Contribution and Sale Agreement referred to below)
REASSIGNMENT NO. __ OF RECEIVABLES, dated as of
__________, ____, by and between DEUTSCHE FLOORPLAN
RECEIVABLES, L.P., as buyer (the "Buyer"), and DEUTSCHE
FINANCIAL SERVICES CORPORATION [or DEUTSCHE BUSINESS
SERVICES CORPORATION), as seller (the "Seller"),
pursuant to the Receivables Contribution and Sale
Agreement referred to below.
WITNESSETH
WHEREAS the Seller and the Buyer are parties to the Receivables
Contribution and Sale Agreement dated as of December 1, 1993, amended and
restated as of March 1, 1994, amended as of January 24, 1996 and amended and
restated as of October 1, 1996 (as amended or supplemented, the "Receivables
Contribution and Sale Agreement");
WHEREAS, pursuant to the Receivables Contribution and Sale Agreement, the
Seller wishes to remove all Receivables from certain Accounts, the Collateral
Security thereof and the related Floorplan Rights (the "Removed Accounts") and
to cause the Buyer to reconvey the Receivables of such Removed Accounts and such
Collateral Security and Floorplan Rights, whether now existing or hereafter
created, and all amounts currently held by the Buyer or thereafter received by
the Trust in respect of such Removed Accounts, from the Buyer to the Seller (as
each such term is defined in the Receivables Contribution and Sale Agreement);
and
WHEREAS the Buyer is willing to accept such removal and to reconvey the
Receivables in the Removed Accounts, such Collateral Security and any related
amounts held or received by the Trust subject to the terms and conditions
hereof.
NOW, THEREFORE, the Seller and the Buyer hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein
shall have such defined meanings when used herein, unless otherwise defined
herein.
"Removal Date" shall mean, with respect to the Removed Accounts
designated hereby, ____________
2. Notice of Removed Accounts. The Seller shall deliver to the Buyer,
the Trustee, any Enhancement Providers and the Rating Agencies a computer file
or microfiche or written list
C-1
containing a true and complete list of the Removed Accounts specifying for each
such Account, as of the Removal Commencement Date, its account number, the
aggregate amount of Receivables outstanding in such Accounts and the Designated
Balance. Such list shall be marked as Schedule 1 to this Reassignment and shall
be incorporated into and made a part of this Reassignment as of the Removal Date
and shall amend Schedule 1 to the Receivables Contribution and Sale Agreement.
3. Conveyance of Receivables and Accounts. (a) The Buyer does hereby
transfer, assign, set over and otherwise convey to the Seller, without recourse,
representation or warranty on and after the Removal Date, all right, title and
interest of the Trust in, to and under all [Receivables now existing at the
close of business on the Removal Date and thereafter created from time to time
until the termination of the Trust in Removed Accounts designated hereby, all
Collateral Security thereof, the related Floorplan Rights, all monies due or to
become due and all amounts received with respect thereto (including all
Non-Principal Receivables), all proceeds (as defined in Section 9-306 of the UCC
as in effect in the State of Missouri [Georgia] and Recoveries) thereof relating
thereto][in the case of Removed Accounts which are to be removed pursuant to
Section 2.7 of the Receivables Contribution and Sale Agreement and which were
not Ineligible Accounts at the time they were originally designated as Accounts,
replace the immediately preceding bracketed text with the following: the Removed
Accounts but not any right, title and interest of the Trust in, to and under (i)
any Receivables existing as of the Removal Date in Removed Accounts designated
hereby, (ii) all Collateral Security relating to such Receivables, (iii) the
related Floorplan Rights, (iv) all monies due or to become due and all amounts
received with respect to such Receivables (including all Non-Principal
Receivables), (v) all proceeds (as defined in Section 9-306 of the UCC as in
effect in the State of Missouri [Georgia] and Recoveries) thereof relating to
such Receivables, it being understood that the items described in clauses
(i)-(v) will continue to be Trust Assets] .
(b) If requested by the Seller, in connection with such transfer, the
Buyer agrees to execute and deliver to the Seller, on or prior to the date of
this Reassignment, a termination statement with respect to the Receivables
existing at the close of business on the Removal Date and thereafter created
from time to time and Collateral Security thereof in the Removed Accounts
reassigned hereby (which may be a single termination statement with respect to
all such Receivables and Collateral Security) evidencing the release by the
Trust of its lien on the Receivables in the Removed Accounts and the Collateral
Security, and meeting the requirements of applicable state law, in such manner
and such jurisdictions as are necessary to remove such lien.
4. Acceptance by Buyer. The Buyer hereby acknowledges that, prior to or
simultaneously with the execution and delivery of this Reassignment, the Seller
delivered to the Buyer the computer file or such microfiche or written list
described in Section 2(b) of this Reassignment.
5. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Buyer as of the date of this Reassignment and as
of the Removal Date:
(a) Legal, Valid and Binding Obligation. This Reassignment
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller in
C-2
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement of
creditors' rights generally and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at
law or in equity);
(b) No Early Amortization Event. The removal of the Accounts
hereby removed shall not, in the reasonable belief of the Seller, cause an
Early Amortization Event to occur or cause the Pool Balance to be less
than the Required Participation Amount;
(c) Selection Procedures. No selection procedures believed by the
Seller to be adverse to the interests of the Beneficiaries were utilized
in selecting the Accounts to be removed; and
(d) True and Complete List. The list of Removed Accounts described
in Section 2(b) of this Assignment is, as of the Removal Commencement
Date, true and complete in all material respects.
provided, however, that in the event that the removal on such Removal Date
relates solely to Ineligible Accounts, the Seller shall be deemed to make only
the representations and warranties contained in paragraph 5(a) above.
6. Condition Precedent. In addition to the conditions precedent set
forth in Section 2.6 of the Receivables Contribution and Sale Agreement, the
obligation of the Buyer to execute and deliver this Reassignment is subject to
the Seller having delivered on or prior to the Removal Date to the Trustee, the
Buyer, any Agent, and any Enhancement Providers an Officers' Certificate
certifying that (i) as of the Removal Date, all requirements set forth in
Section 2.6 of the Agreement for removing such Accounts and reconveying the
Receivables of such Removed Accounts, the Collateral Security and the related
Floorplan Rights, whether existing at the close of business on the Removal Date
or thereafter created from time to time until the termination of the Trust, have
been satisfied, and (ii) each of the representations and warranties made by the
Seller in Section 5 hereof is true and correct as of the date of this
Reassignment and as of the Removal Date. The Buyer may conclusively rely on such
officers' Certificate, shall have no duty to make inquiries with regard to the
matters set forth therein and shall incur no liability in so relying.
7. Ratification of Agreement. As supplemented by this Reassignment the
Receivables Contribution and Sale Agreement is in all respects ratified and
confirmed and the Receivables Contribution and Sale Agreement as so supplemented
by this Reassignment shall be read, taken and construed as one and the same
instrument.
8. Counterparts. This Reassignment may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
C-3
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
C-4
IN WITNESS WHEREOF, the undersigned have caused this Reassignment to be
duly executed and delivered by their respective duly authorized officers on the
day and year first above written.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.,
Buyer
By: DEUTSCHE FLOORPLAN RECEIVABLES, INC.,
its general partner
By:_____________________________________
Name:
Title
By:_____________________________________
Name:
Title
[DEUTSCHE FINANCIAL SERVICES
CORPORATION, Seller]
By:_____________________________________
Name:
Title
By:_____________________________________
Name:
Title
C-5
[DEUTSCHE BUSINESS SERVICES
CORPORATION, Seller]
By:_____________________________________
Name:
Title
By:_____________________________________
Name:
Title
C-6
Schedule 1
List of Accounts
[Provided separately to the Buyer and the
Trustee and deemed to be incorporated herein.]
C-7
Exhibit 4.10
AMENDMENT TO
RECEIVABLES CONTRIBUTION AND SALE AGREEMENT
This AMENDMENT is made and entered into as of December 31, 2002
("Amendment") by and between GE Commercial Distribution Finance Corporation, a
Nevada corporation (formerly known as Deutsche Financial Services Corporation),
as Seller ("CDF") and Deutsche Floorplan Receivables, L.P., a Delaware limited
partnership, as Buyer ("Limited Partnership").
BACKGROUND
WHEREAS, CDF and Limited Partnership are parties to the Receivables
Contribution and Sale Agreement, dated as of December 1, 1993, amended and
restated as of March 1, 1994, amended as of January 24, 1996 and amended and
restated as of October 1, 1996 (as so amended, the "Sale Agreement"); and
WHEREAS, Deutsche Business Services Corporation ("DBSC") is no longer a
going concern and therefore is no longer a seller under the Sale Agreement;
WHEREAS, the parties to the Sale Agreement desire to amend the Sale
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms defined in the Sale Agreement
and used in this Amendment but not otherwise defined herein shall have the
meanings assigned to them in the Sale Agreement.
SECTION 2. Recitals. The third and fourth recitals to the Sale Agreement
are hereby deleted and replaced with the following:
"WHEREAS, the Buyer desires to sell or contribute such payment obligations
to CDF Financing, L.L.C. ("LLC"), pursuant to a Receivables Contribution and
Sale Agreement dated as of December 31, 2002 (as the same may from time to time
be amended, supplemented or otherwise modified, the "LP/LLC Sale Agreement");
WHEREAS, the LLC is becoming a party to (and the Buyer is ceasing to be a
party to) the Amended and Restated Pooling and Servicing Agreement dated as of
April 1, 2000 (as the same may from time to time be amended, supplemented or
otherwise modified, the "Pooling and Servicing Agreement"), among the LLC, CDF,
as Servicer, and Wilmington Trust Company, as successor to The Chase Manhattan
Bank, as Trustee (the "Trustee")."
SECTION 3. Deutsche Business Services Corporation Amendments.
(a) Generally. All references to "Deutsche Business Services
Corporation" in the Sale Agreement are hereby deleted.
Amendment to Contribution
and Sale Agreement
(b) Sellers. All references to "either Seller" , "each Seller" ,
"such Seller" or "the applicable Seller" are hereby replaced with "the
Seller" and all references to "Sellers" are hereby replaced with "Seller".
(c) Section 5.1 of the Sale Agreement. The first sentence of
Section 5.1 of the Sale Agreement is hereby amended by deleting the
language "Neither Seller shall consolidate" and replacing it with "The
Seller shall not consolidate".
(d) Section 7.1(f) of the Sale Agreement. Section 7.1(f) of the
Sale Agreement is hereby deleted in its entirety.
(e) Section 7.6 of the Sale Agreement. Section 7.6 is hereby
amended by deleting the language "or, in the case of notices to Deutsche
BSC, to the following address: 655 Maryville Centre Drive, St. Louis,
Missouri 63141, Attention: Secretary" and by replacing it with the
language "or, in the case of notices to Limited Partnership, to the
following address: 655 Maryville Centre Drive, St. Louis, Missouri 63141,
Attention: Finance Manager".
SECTION 4. Uniform Commercial Code References.
(a) Section 2.1 of the Sale Agreement. The first paragraph of
Section 2.1 of the Sale Agreement is hereby amended by deleting the phrase
"(including "proceeds" as defined in Section 9-306 of the UCC as in effect
in the State of Missouri and the State of Georgia, as applicable, and
Recoveries)" and replacing it with "(including "proceeds" as defined in
the UCC, and Recoveries)". The fifth paragraph of Section 2.1 is hereby
amended by deleting the phrase "(as defined in Section 9-105 of the UCC as
in effect in any state where such Seller's or the Servicer's chief
executive offices or books and records relating to the Receivables are
located)" and replacing it with "(as defined in the UCC)".
(b) Section 2.2(j) of the Sale Agreement. Section 2.2(j) is hereby
amended by deleting the language "Missouri and the County Recorder of St.
Louis County in the State of Missouri with respect to DFS and the County
Recorder of Cobb County in the State of Georgia, in the case of Deutsche
BSC" and replace it with "Nevada".
(c) Section 7.2(b) of the Sale Agreement. Section 7.2 is hereby
amended by deleting the language "Section 9-402(7) of the UCC as in effect
in the State of Missouri or the State of Georgia, as applicable, or such
other applicable jurisdiction," and replacing it with "the UCC as in
effect in the applicable jurisdiction,".
SECTION 5. Additional Amendments to Sale Agreement.
(a) The last sentence of the last paragraph of Section 2.2 is
hereby amended by inserting the phrase ", the Collateral Security and
Floorplan Rights" after the words "The obligation of the Seller to
purchase the Receivables".
(b) Section 2.3(a)(iii) is hereby amended in its entirety to read
as follows: "(iv) On the Cut-Off Date, each Initial Account is an Eligible
Account, and, in the case of
Amendment to Contribution
2 and Sale Agreement
Additional Accounts, on the Additional Cut-Off Date, each such Additional
Account is an Eligible Account."
(c) Section 2.4(b)(v)(C) is hereby amended by changing the word
"servicer" to "Servicer".
(d) Section 2.4(b)(x) is hereby amended by deleting the language
"no less frequently" and replacing it with "no more frequently".
(e) Section 7.1(b) is hereby amended by deleting the word "action"
in the second to last sentence of the paragraph and replacing it with
"amendment".
(f) Section 7.5 is hereby amended and restated to read as follows:
"Section 7.5. GOVERNING LAW. THIS AGREEMENT AND THE OBLIGATIONS ARISING
HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK,
BUT OTHERWISE WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS OF
THE STATE OF NEW YORK)."
SECTION 6. Representations and Warranties. In order to induce the parties
hereto to enter into this Amendment, each of the parties hereto represents and
warrants unto the other parties hereto as set forth in this Section 6:
(a) Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by such party of this Amendment are within its
powers, have been duly authorized by all necessary action, and do not: (i)
contravene its organizational documents; or (ii) contravene any
contractual restriction, law or governmental regulation or court decree or
order binding on or affecting it; and
(b) Validity, etc. This Amendment constitutes the legal, valid and
binding obligation of such party enforceable against such party in
accordance with its terms, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights and general equitable
principles.
SECTION 7. Binding Effect; Ratification. (a) This Amendment shall become
effective, as of the date first set forth above, when counterparts hereof shall
have been executed and delivered by the parties hereto, and thereafter shall be
binding on the parties hereto and their respective successors and assigns.
(b) Any reference to the Sale Agreement from and after the date
hereof shall be deemed to refer to the Sale Agreement as amended hereby,
unless otherwise expressly stated.
Amendment to Contribution
3 and Sale Agreement
(c) Except as expressly amended hereby, the Sale Agreement shall
remain in full force and effect and is hereby ratified and confirmed by
the parties hereto.
SECTION 8. Miscellaneous. (a) THIS AMENDMENT AND THE OBLIGATIONS ARISING
HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401(1) OF THE
GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REGARD TO ANY OTHER CONFLICT OF
LAW PROVISIONS THEREOF).
(b) Headings used herein are for convenience of reference only and
shall not affect the meaning of this Amendment or any provision hereof.
(c) This Amendment may be executed in any number of counterparts,
and by the parties hereto on separate counterparts, each of which when
executed and delivered shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(d) Executed counterparts of this Amendment may be delivered
electronically.
[SIGNATURES FOLLOW]
Amendment to Contribution
4 and Sale Agreement
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their respective representatives thereunto duly authorized as of the day and
year first above written.
GE COMMERCIAL DISTRIBUTION FINANCE
CORPORATION
By: /s/ Joseph B. Thomas
Name: Joseph B. Thomas
Title: Finance Manager
|
S-1 Amendment to Contribution
and Sale Agreement
|
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
By: Deutsche Floorplan Receivables, Inc.,
its General Partner
By: /s/ Joseph B. Thomas
Name: Joseph B. Thomas
Title: Treasurer
|
S-2 Amendment to Contribution
and Sale Agreement
Exhibit 4.11
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.,
as Seller,
and
CDF FINANCING, L.L.C.,
as Buyer
RECEIVABLES CONTRIBUTION AND SALE AGREEMENT
Dated as of December 31, 2002
Contribution and Sale Agreement
TABLE OF CONTENTS
PAGE
ARTICLE I
Definitions
Section 1.1 Definitions.......................................................................... 1
Section 1.2 Other Definitional Provisions........................................................ 2
ARTICLE II
Conveyance of Receivables
Section 2.1 Conveyance of Receivables............................................................ 2
Section 2.2 Representations and Warranties of the Seller Relating to the Seller and
the Agreement........................................................................ 4
Section 2.3 Representations and Warranties of the Seller Relating to the Receivables............. 6
Section 2.4 Addition of Accounts................................................................. 7
Section 2.5 Covenants of the Seller.............................................................. 9
Section 2.6 Removal of Eligible Accounts......................................................... 10
Section 2.7 Removal of Ineligible Accounts....................................................... 12
Section 2.8 Sale of Ineligible Receivables....................................................... 13
ARTICLE III
Administration and Servicing of Receivables
Section 3.1 The Servicer......................................................................... 13
Section 3.2 Servicing Compensation............................................................... 13
ARTICLE IV
Rights of Certificateholders and
Allocation and Application of Collections
Section 4.1 Allocations and Applications of Collections and Other Funds.......................... 13
ARTICLE V
Other Matters Relating to the Seller
Section 5.1 Merger or Consolidation of, or Assumption of, the Obligations of the Seller.......... 13
Section 5.2 Seller's Indemnification of the Buyer................................................ 14
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TABLE OF CONTENTS
PAGE
ARTICLE VI
Termination............................................................................................ 15
ARTICLE VII
Miscellaneous Provisions
Section 7.1 Amendment............................................................................ 15
Section 7.2 Protection of Right, Title and Interest to Receivables............................... 16
Section 7.3 Limited Recourse..................................................................... 16
Section 7.4 No Petition.......................................................................... 17
Section 7.5 GOVERNING LAW........................................................................ 17
Section 7.6 Notices.............................................................................. 17
Section 7.7 Severability of Provisions........................................................... 17
Section 7.8 Assignment........................................................................... 17
Section 7.9 Further Assurances................................................................... 17
Section 7.10 No Waiver; Cumulative Remedies....................................................... 18
Section 7.11 Counterparts......................................................................... 18
Section 7.12 Third-Party Beneficiaries............................................................ 18
Section 7.13 Merger and Integration............................................................... 18
Section 7.14 Headings............................................................................. 18
Section 7.15 Submission to Jurisdiction........................................................... 18
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EXHIBITS
Exhibit A Form of Assignment of Receivables in Additional Accounts
Exhibit B Form of Reassignment of Receivables in Removed Accounts
Schedule 1 List of Accounts
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RECEIVABLES CONTRIBUTION AND SALE AGREEMENT, dated as of December 31,
2002, between DEUTSCHE FLOORPLAN RECEIVABLES, L.P., a Delaware limited
partnership (the "Limited Partnership"), as Seller ("Seller"), and CDF
FINANCING, L.L.C., a Delaware limited liability company ("LLC"), as Buyer
("Buyer").
WITNESETH:
WHEREAS, the Seller is party to the Receivables Contribution and Sale
Agreement dated as of December 1, 1993, amended and restated as of March 1,
1994, amended as of January 24, 1996, and amended and restated as of October 1,
1996 (as the same may from time to time be amended, supplemented or otherwise
modified, the "First Tier Agreement"), with GE Commercial Distribution Finance
Corporation, formally known as Deutsche Financial Services Corporation, a Nevada
corporation ("CDF");
WHEREAS, the First Tier Agreement provides for the Seller to acquire
Receivables and related assets and rights from CDF from time to time;
WHEREAS, the Seller wish to sell or contribute such Receivables and
related assets and rights from time to time to the Buyer;
WHEREAS, the Seller is party to the Amended and Restated Pooling and
Servicing Agreement dated as of April 1, 2000 (as the same may from time to time
be amended, supplemented or otherwise modified, the "Pooling and Servicing
Agreement"), among the Seller, as seller, CDF, as servicer, and Wilmington Trust
Company, as successor to The Chase Manhattan Bank, as trustee (the "Trustee");
WHEREAS, the Seller wishes to contribute to the Buyer all of the Seller's
right, title and interest in, to and under the Pooling and Servicing Agreement;
WHEREAS, in connection herewith, the Pooling and Servicing Agreement will
be amended in order to, among other things, replace the Limited Partnership as a
party thereto with the Buyer.
NOW THEREFORE, the parties hereto agree, effective as of December 31, 2002
(the "Effective Date"), as follows:
ARTICLE I
Definitions
Section 1.1 Definitions. Capitalized terms defined in the Pooling and
Servicing Agreement and used but not otherwise defined herein shall have the
meanings set forth in the Pooling and Servicing Agreement. The rules of
construction in Sections 1.2 and 1.3 of the Pooling and Servicing Agreement
shall be applied to this Agreement. In addition, the term "Agreement" means this
Receivables Contribution and Sale Agreement, as the same may from time to time
be amended, supplemented or otherwise modified.
Contribution and Sale Agreement
Section 1.2 Other Definitional Provisions. (a) The words "hereof",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement; Article, Section, Schedule, and Exhibit references are
references to Sections, Schedules and Exhibits in or to this Agreement unless
otherwise specified; and the term "including" shall mean "including without
limitation".
(b) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
ARTICLE II
Conveyance of Receivables
Section 2.1 Conveyance of Receivables. By execution of this Agreement, the
Seller does hereby sell, transfer, assign, set over and otherwise convey,
without recourse (except as expressly provided herein), to the Buyer on the
first Effective Date, in the case of Accounts existing as of the Effective Date
(the "Existing Accounts"), and on the applicable Addition Date, in the case of
Additional Accounts, all of its right, title and interest in, to and under the
Receivables in each Account and all Collateral Security with respect thereto
owned by the Seller at the close of business on the Effective Date, in the case
of the Existing Accounts, and on the applicable Additional Cut-Off Date, in the
case of Additional Accounts, and all monies due or to become due and all amounts
received with respect thereto and all proceeds (including "proceeds" as defined
in the UCC and Recoveries) thereof and all of the Seller's rights, remedies,
powers and privileges with respect to such Receivables under the related
Floorplan Agreements. Subject to Article VI, as of each Business Day prior to
the earlier of (x) the occurrence of an Early Amortization Event specified in
Section 9.1(b), (c), (d), or (e) of the Pooling and Servicing Agreement and (y)
the Trust Termination Date, on which Receivables are created in the Accounts (a
"Transfer Date"), the Seller does hereby sell, transfer, assign, set over and
otherwise convey, without recourse (except as expressly provided herein), to the
Buyer, all of its right, title and interest in, to and under the Receivables in
each Account (other than any Receivables created in any Removed Account from and
after the applicable Removal Date) and all Collateral Security with respect
thereto owned by the Seller at the close of business on such Transfer Date and
not theretofore conveyed to the Buyer, all monies due or to become due and all
amounts received with respect thereto and all proceeds (including "proceeds" as
defined in the UCC and Recoveries) thereof and all of the Seller's rights,
remedies, powers and privileges with respect to such Receivables under the
related Floorplan Agreements. The foregoing sale, transfer, assignment, set-over
and conveyance and any subsequent sales, transfers, assignments, set-overs and
conveyances do not constitute, and are not intended to result in, the creation
or an assumption by the Buyer of any obligation of the Servicer, the Seller or
any other Person in connection with the Accounts, the Receivables or under any
agreement or instrument relating thereto, including any obligation under the
Financing Agreements, the Floorplan Agreements and any Participation Agreement
and any other obligation to any Dealer or Manufacturer.
On the Effective Date, the Seller hereby contributes as capital to the
Buyer (i) Receivables in the amount of three billion two hundred sixty-eight
million six hundred eighty-six
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thousand five hundred seventy-six dollars ($3,268,686,576), together with the
related Collateral Security and Floorplan Rights (defined below) and (ii) all of
the Seller's right, title and interest in, to and under the Pooling and
Servicing Agreement. Subject to Article VI, the purchase price for the
Receivables sold by the Seller to the Buyer on each Addition Date and on each
Transfer Date thereafter shall be a price agreed to by the Buyer and the Seller
at the time of acquisition by the Buyer, which price shall not, in the opinion
of the Buyer, be materially less favorable to the Buyer than prices for
transactions of a generally similar character at the time of the acquisition
taking into account the quality of such Receivables and other pertinent factors,
including, without limitation, prevailing interest rates; provided that such
consideration shall in any event not be less than reasonably equivalent value
therefor.
At its option from time to time, the Seller may convey as a capital
contribution to the Buyer Receivables together with the related Collateral
Security and Floorplan Rights (or interests in any of the foregoing).
In connection with such contributions and sales, the Seller agrees (i) to
record and file, at its own expense, a financing statement on form UCC-1 (and
continuation statements when applicable) naming the Seller as "debtor" and the
Buyer as "secured party" thereon with respect to the Receivables now existing
and hereafter created for the sale of chattel paper, accounts or general
intangibles (as defined in the UCC) meeting the requirements of applicable state
law in such manner and in such jurisdictions as are necessary to perfect the
sale and assignment of the Receivables, the Collateral Security and all of the
Seller's rights, remedies, powers and privileges with respect to such
Receivables under the related Floorplan Agreements (the "Floorplan Rights") to
the Buyer, and to perfect the contribution of any items contemplated by this
Agreement, and (ii) to deliver a file-stamped copy of such financing statements
or other evidence of such filing to the Buyer promptly following such filing. In
addition, the Seller shall cause to be timely filed in the appropriate filing
office any UCC-1 financing statement and continuation statement necessary to
perfect any sale of Receivables to the Seller. The Buyer shall be under no
obligation whatsoever to file such financing statement, or a continuation
statement to such financing statement, or to make any other filing under the UCC
in connection with such contribution and sales. The parties hereto intend that
the transfers of Receivables and other items effected by this Agreement be sales
(or, in the case of contributions, true contributions).
In connection with such contribution and sales, the Seller further agrees,
at its own expense, on or prior to the Effective Date, in the case of Existing
Accounts, the applicable Addition Date, in the case of Additional Accounts, and
the applicable Removal Date, in the case of Removed Accounts, (a) to indicate in
its books and records, which may include computer files, that the Receivables
created in connection with the Accounts (other than Removed Accounts) have been
sold, and the Collateral Security and the Floorplan Rights assigned, to the
Buyer pursuant to this Agreement and sold to the Trust pursuant to the Pooling
and Servicing Agreement for the benefit of the Certificateholders and the other
Beneficiaries and (b) to deliver to the Buyer a computer file or microfiche or
written list containing a true and complete list of all such Accounts (other
than Removed Accounts) specifying for each such Account, as of the Effective
Date, in the case of Existing Accounts, and the applicable Additional Cut-Off
Date, in the case of Additional Accounts, (i) its account number and (ii) the
aggregate amount of Principal Receivables in such Account. Such file or list, as
supplemented from time to time to
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reflect Additional Accounts and Removed Accounts, shall be marked as Schedule 1
to this Agreement and is hereby incorporated into and made a part of this
Agreement.
In the event that such contributions, sales and assignments are deemed to
constitute a pledge of security for a loan, it is the intent of this Agreement
that the Seller shall be deemed to have granted to the Buyer a first priority
perfected security interest in all of the Seller's right, title and interest to
and under (i) the Receivables, the Collateral Security and all proceeds thereof
and the Floorplan Agreements and (ii) the Pooling and Servicing Agreement, and
that this Agreement shall constitute a security agreement under applicable law.
Section 2.2 Representations and Warranties of the Seller Relating to the
Seller and the Agreement. The Seller hereby represents and warrants to the
Buyer, as to itself and the Receivables being transferred and sold by it
hereunder, as of the Effective Date and as of each Closing Date that:
(a) Organization and Good Standing. The Seller is a limited
partnership duly organized and validly existing and in good standing under
the laws of the state of its organization and has, in all material
respects, full partnership power, authority and legal right to own its
properties and conduct its business as such properties are presently owned
and such business is presently conducted, and to execute, deliver and
perform its obligations under this Agreement.
(b) Due Qualification. The Seller is duly qualified to do business
and, where necessary, is in good standing as a foreign limited partnership
(or is exempt from such requirement) and has obtained all necessary
licenses and approvals in each jurisdiction in which the conduct of its
business requires such qualification except where the failure to so
qualify or obtain licenses or approvals would not have a material adverse
effect on its ability to perform its obligations hereunder.
(c) Due Authorization. The execution and delivery of this
Agreement and the consummation of the transactions provided for or
contemplated by this Agreement have been duly authorized by the Seller by
all necessary limited partnership action on the part of the Seller and are
within its limited partnership powers.
(d) No Conflict. The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof and thereof, will not conflict with,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of
trust, or other instrument to which the Seller is a party or by which it
or its properties are bound.
(e) No Violation. The execution and delivery of this Agreement,
the performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof and thereof applicable to the Seller, will
not conflict with or violate any material Requirements of Law applicable
to the Seller or conflict with, violate, result in any breach of any of
the material terms and provisions of, or constitute (with or without
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notice or lapse of time or both) a material default under any indenture,
contract, agreement, mortgage, deed of trust, or other instrument to which
the Seller is a party or by which the Seller is bound.
(f) No Proceedings. There are no proceedings or, to the best
knowledge of the Seller, investigations, pending or threatened against the
Seller, before any Governmental Authority (i) asserting the invalidity of
this Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, (iii) seeking any
determination or ruling that, in the reasonable judgment of the Seller,
would materially and adversely affect the performance by the Seller of its
obligations under this Agreement, (iv) seeking any determination or ruling
that would materially and adversely affect the validity or enforceability
of this Agreement or (v) seeking to affect adversely the income tax
attributes of the Trust under the United States federal or any state
income, single business or franchise tax systems.
(g) All Consents Required. All appraisals, authorizations,
consents, orders, approvals or other actions of any Person or of any
governmental body or official required in connection with the execution
and delivery of this Agreement, the performance of the transactions
contemplated by this Agreement, and the fulfillment of the terms hereof or
thereof, have been obtained.
(h) Enforceability. This Agreement constitutes a legal, valid and
binding obligation of the Seller enforceable against the Seller in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at
law or in equity).
(i) Record of Accounts. As of the Effective Date, in the case of
the Existing Accounts, as of the applicable Addition Date, in the case of
the Additional Accounts, and, as of the applicable Removal Date, in the
case of Removed Accounts, Schedule 1 to this Agreement is an accurate and
complete listing in all material respects of all the Accounts as of the
Effective Date, the applicable Additional Cut-Off Date or the applicable
Removal Date, as the case may be, and the information contained therein
with respect to the identity of such Accounts and the Receivables existing
thereunder is true and correct in all material respects as of the
Effective Date, such applicable Additional Cut-Off Date or such Removal
Date, as the case may be.
(j) Valid Transfer. This Agreement or, in the case of Additional
Accounts, the related Assignment constitutes a valid sale, transfer and
assignment to the Buyer of all right, title and interest of the Seller in
the Receivables and the Collateral Security and the proceeds thereof. Upon
the filing of the financing statements described in Section 2.1 with the
Secretary of State of the State of Nevada and, in the case of the
Receivables hereafter created and the proceeds thereof, upon the creation
thereof, the Buyer shall have a first priority perfected ownership
interest in such property. Except as otherwise provided in the Pooling and
Servicing Agreement, neither the Seller nor any Person claiming through or
under the Seller has any claim to or interest in the Trust Assets.
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The representations and warranties set forth in this Section 2.2 shall
survive the transfer and assignment of the Receivables to the Buyer. Upon
discovery by a Seller or the Buyer of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other parties.
In the event of any breach of any of the representations and warranties
set forth in this Section 2.2 and if, in connection therewith, the Buyer shall
be obligated to purchase the Certificateholders' Interest pursuant to Section
2.3 of the Pooling and Servicing Agreement, the Seller shall repurchase the
Receivables, the Collateral Security and Floorplan Rights conveyed by it and
shall pay to the Buyer on the Business Day preceding the Distribution Date on
which such purchase of the Certificateholders' Interest is to be made an amount
equal to the purchase price for the Certificateholders' Interest as specified in
the Pooling and Servicing Agreement. The obligation of the Seller to purchase
the Receivables, the Collateral Security and Floorplan Rights pursuant to this
Section 2.2 shall constitute the sole remedy against the Seller respecting an
event of the type specified in the first sentence of this paragraph available to
the Buyer and to the Investor Certificateholders (or the Trustee on behalf of
the Investor Certificateholders).
Section 2.3 Representations and Warranties of the Seller Relating to the
Receivables.
(a) Representations and Warranties. The Seller hereby represents
and warrants to the Buyer, with respect to the Receivables conveyed by the
Seller, that:
(i) Each Receivable and all Collateral Security existing on
the Effective Date or, in the case of Additional Accounts, on the
applicable Addition Date, and on each Transfer Date, has been
conveyed to the Buyer free and clear of any Lien.
(ii) With respect to each Receivable and all Collateral
Security existing on the Effective Date or, in the case of
Additional Accounts, on the applicable Addition Date, and on each
Transfer Date, all consents, licenses, approvals or authorizations
of or registrations or declarations with any Governmental Authority
required to be obtained, effected or given by the Seller in
connection with the conveyance of such Receivable or Collateral
Security to the Buyer have been duly obtained, effected or given and
are in full force and effect.
(iii) On the Effective Date, each Existing Account is an
Eligible Account and, in the case of Additional Accounts, on the
applicable Additional Cut-Off Date, each such Additional Account is
an Eligible Account.
(iv) On the Effective Date, in the case of the Existing
Accounts, and, in the case of the Additional Accounts, on the
applicable Additional Cut-Off Date, and on each Transfer Date, each
Receivable conveyed to the Buyer on such date is an Eligible
Receivable or, if such Receivable is not an Eligible Receivable,
such Receivable is conveyed to the Buyer in accordance with Section
2.8.
(v) Each Participation Agreement, if any, relating to
Receivables conveyed by the Seller permits the transfer of such
Receivables to the Buyer and the Trust and provides that the
undivided interest of such participant is pari passu in all respects
(other than non-subordinated interest strips and fees) with the
remaining undivided interest in
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the related Receivables. If such Participation Agreement was created
after December 1, 1993, such Participation Agreement states that the
related undivided interest of CDF may be transferred to a
securitization vehicle and contains an agreement by the participant
that such participant shall have no rights against the
securitization vehicle or any successor servicer for such
securitization vehicle, other than in connection with funds
allocable to the participant that have been improperly withheld by
the securitization vehicle.
(b) Notice of Breach. The representations and warranties set forth in
this Section 2.3 shall survive the transfer and assignment of the Receivables to
the Buyer. Upon discovery by the Seller or the Buyer of a breach of any of the
representations and warranties set forth in this Section 2.3, the party
discovering such breach shall give prompt written notice to the other parties.
(c) Repurchase. In the event any representation or warranty under
Section 2.3(a) is not true and correct as of the date specified therein with
respect to any Receivable or Account and the Buyer is, in connection therewith,
required to purchase such Receivable or all Receivables in such Account pursuant
to Section 2.4(c) of the Pooling and Servicing Agreement, then, within 30 days
(or such longer period as may be agreed to by the Buyer) of the earlier to occur
of the discovery of any such event by the Seller or the Buyer, or receipt by the
Seller or the Buyer of written notice of any such event given by the Trustee or
any Enhancement Providers, the Seller shall repurchase the Receivable or
Receivables, if any, of which the Buyer is required to accept reassignment
pursuant to the Pooling and Servicing Agreement on the Business Day preceding
the Determination Date on which such reassignment is to occur.
The Seller shall purchase each such Receivable by making a payment to the
Buyer in immediately available funds on the Business Day preceding the
Distribution Date on which such reassignment is to occur in an amount equal to
the Purchase Price for such Receivable. Upon payment of the Purchase Price, the
Buyer shall automatically and without further action be deemed to sell,
transfer, assign, set over and otherwise convey to the Seller, without recourse,
representation or warranty, all the right, title and interest of the Buyer in
and to such Receivable, all Collateral Security, the related Floorplan Rights
and all monies due or to become due with respect thereto and all proceeds
thereof. The Buyer shall execute such documents and instruments of transfer or
assignment and take such other actions as shall reasonably be requested by the
Seller to effect the conveyance of such Receivables pursuant to this Section.
The obligation of the Seller to repurchase any such Receivable shall constitute
the sole remedy respecting the event giving rise to such obligation available to
the Buyer and to the Certificateholders (or the Trustee on behalf of
Certificateholders).
Section 2.4 Addition of Accounts. (a) The Seller may from time to time
offer to voluntarily designate additional Eligible Accounts to be included as
Accounts, subject to the conditions specified in paragraph (b) below. If any
such offer is accepted by the Buyer, Receivables and Collateral Security, if
any, from such Additional Accounts shall be sold to the Buyer (or contributed to
the Buyer in accordance with Section 2.1) effective on a date (the "Addition
Date") specified in a written notice provided by the Seller (or the Servicer on
its behalf) to the Buyer and any Enhancement Providers specifying the Additional
Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition
Notice") on or before the fifth Business Day but not more than the 30th day
prior to the related Addition Date or, if the
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Automatic Addition Condition is satisfied, on the Determination Date following
the Collection Period in which such Addition Dates occur (the "Notice Date"). An
Addition Notice may relate to one or more Accounts on one or more Addition
Dates.
(b) The Seller shall be permitted to convey to the Buyer the Receivables
and all Collateral Security, if any, related thereto in any Additional Accounts
designated by the Seller as such pursuant to Section 2.4(a) only upon
satisfaction of each of the following conditions on or prior to the related
Addition Date (except for the condition in clause (vii), if applicable, which
shall be satisfied on or before the tenth Business Day after such Notice Date):
(i) The Seller shall provide the Buyer and any Enhancement
Providers with a timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) The Seller shall have delivered to the Buyer a duly executed
written assignment (including an acceptance by the Buyer) covering the
Receivables specified in the Addition Notice in substantially the form of
Exhibit A (the "Assignment") and the computer file or microfiche or
written list required to be delivered pursuant to Section 2.1.
(iv) The Seller shall have delivered to the Buyer for deposit in
the Collection Account all Collections with respect to such Additional
Accounts since the Additional Cut-Off Date.
(v) (A) No selection procedures believed by the Seller to be
adverse to the interests of the Buyer or the Beneficiaries were used in
selecting such Additional Accounts; (B) the list of Additional Accounts
delivered pursuant to clause (iii) above is true and correct in all
material respects as of the Additional Cut-Off Date and (C) as of each of
the Notice Date and the Addition Date, neither the Seller, the Buyer nor
the Servicer are insolvent nor will have been made insolvent by such
transfer nor are aware of any pending insolvency.
(vi) If the Automatic Addition Condition is not satisfied with
respect to such addition, the Rating Agency Condition shall have been
satisfied with respect to such addition.
(vii) If (A) one or more of the Additional Accounts specified in
such Addition Notice will contain Receivables secured by a security
interest in a type of Product that has not been previously financed in the
Floorplan Business or (B) one or more of the Additional Accounts is
supported by a Floorplan Agreement with a Manufacturer that, as of the
related Addition Date, is not an Existing Manufacturer, then, whether or
not the Automatic Condition is satisfied, the Rating Agency Condition
shall have been satisfied in respect of the addition of each Additional
Account specified in clauses (A) and (B) on or prior to the related
Addition Date.
(viii) The addition of the Receivables arising in such Additional
Accounts shall not result in the occurrence of an Early Amortization
Event.
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(ix) The Seller shall have delivered to the Buyer and any
Enhancement Providers a certificate of a Vice President or more senior
officer of its general partner confirming the items set forth in
paragraphs (ii) through (vi) and (viii) above.
(x) The Seller shall have delivered to the Trustee and any
Enhancement Providers (A) an Opinion of Counsel with respect to the
Receivables in the Additional Accounts added since the last delivery of
such opinion substantially in the form of Exhibit G-2 to the Pooling and
Servicing Agreement and (B) except in the case of an addition in
connection with an addition of Receivables by the Buyer to the Trust
required by Section 2.5(a) of the Pooling and Servicing Agreement, a Tax
Opinion with respect to such addition; provided that if such Opinion of
Counsel and Tax Opinion are required to be delivered, they shall be
rendered by outside counsel no more frequently than quarterly.
(c) The Seller hereby represents and warrants as of the applicable
Addition Date as to the matters set forth in Section 2.4(b)(v). The
representations and warranties set forth in Section 2.4(b)(v) shall survive the
sale and assignment of the respective Receivables and Collateral Security, if
any, to the Buyer. Upon discovery by the Seller or the Buyer of a breach of any
of the foregoing representations and warranties, the party discovering the
breach shall give prompt written notice to the other party and to any
Enhancement Providers.
Section 2.5 Covenants of the Seller. The Seller hereby covenants that:
(a) No Liens. Except for the conveyances hereunder and the
conveyance of Participation Interests pursuant to the terms of any
Participation Agreements, the Seller will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to
exist any Lien on, any Receivable or any Collateral Security, whether now
existing or hereafter created, or any interest therein, and the Seller
shall defend the right, title and interest of the Buyer and the Trust in,
to and under the Receivables and the Collateral Security, whether now
existing or hereafter created, against all claims of third parties
claiming through or under the Seller.
(b) Financing Agreements and Guidelines. The Seller shall comply
with and perform its servicing obligations, if any, with respect to the
Accounts and Receivables in accordance with (i) the Wholesale Financing
Agreements, Accounts Receivable Financing Agreements, Asset Based Lending
Financing Agreements and Unsecured Receivable Financing Agreements
relating to the Accounts and (ii) the Financing Guidelines, except insofar
as any failure to so comply or perform would not materially and adversely
affect the rights of the Buyer, the Trust or any of the Beneficiaries.
Subject to compliance with all Requirements of Law, the Seller may change
the terms and provisions of (i) the Wholesale Financing Agreements,
Accounts Receivable Financing Agreements, Asset Based Lending Financing
Agreements and Unsecured Receivable Financing Agreements or (ii) the
Financing Guidelines in any respect (including the calculation of the
amount or the timing of charge-offs and the rate of the finance charge
assessed thereon) only if such change would be permitted pursuant to
Section 3.1(d) of the Pooling and Servicing Agreement.
Contribution and Sale Agreement
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(c) Account Allocations. In the event that the Seller is unable
for any reason to transfer Receivables to the Buyer, then the Seller
agrees that it shall allocate, after the occurrence of such event,
payments on each Account with respect to the principal balance of such
Account first to the oldest principal balance of such Account and to have
such payments applied as Collections in accordance with the terms of the
Pooling and Servicing Agreement. The parties hereto agree that
Non-Principal Receivables, whenever created, accrued in respect of
Principal Receivables which have been conveyed to the Buyer and by the
Buyer to the Trust shall continue to be a part of the Trust
notwithstanding any cessation of the transfer of additional Principal
Receivables to the Buyer and Collections with respect thereto shall
continue to be allocated and paid in accordance with Article IV of the
Pooling and Servicing Agreement.
(d) Delivery of Collections. In the event that the Seller receives
Collections, the Seller agrees to pay the Servicer or any Successor
Servicer all payments received by the Seller in respect of the Receivables
as soon as practicable after receipt thereof by the Seller, but in no
event later than two Business Days after the receipt by the Seller
thereof.
(e) Notice of Liens. The Seller shall notify the Buyer and the
Trustee promptly after becoming aware of any Lien on any Receivable
conveyed by the Seller other that the conveyances hereunder or under the
Pooling and Servicing Agreement.
(f) Compliance with Law. The Seller hereby agrees to comply in all
material respects with all Requirements of Law applicable to the Seller.
(g) Concentration of Risk. In order to avoid a concentration of
the risks associated with participating extensions of credit to Dealers,
the Seller may create Participation Interests in its receivables to be
sold or contributed to the Buyer in the same manner and using the same
standards as the Seller does in creating participation interests in
receivables to be retained by the Seller.
(h) Limitation on Creation of Participation Interests. The Seller
shall not create Participation Interests in its receivables to the extent
that the creation of such Participation Interests would, at the time of
such creation, cause the Pool Balance to be less than the Required
Participation Amount.
(i) Performance of Floorplan Agreements. The Seller shall perform
its obligations, if any, under each Floorplan Agreement in accordance with
the terms thereof in all material respects.
Section 2.6 Removal of Eligible Accounts. (a) On each Determination Date
on which Accounts, including all amounts then held by the Trust or thereafter
received by the Trust with respect to such Accounts, are removed from the Trust
pursuant to Section 2.7 of the Pooling and Servicing Agreement, the Buyer shall
be deemed to have offered to the Seller automatically and without notice to or
action by or on behalf of the Buyer, the right to remove Eligible Accounts from
the operation of this Agreement in the manner prescribed in Section 2.6(b),
subject to Section 2.6(d). The termination of an Account by a Dealer upon such
Dealer's payment in full of such Account shall not be a removal of an Account
under this Section.
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(b) To accept such offer and remove Accounts, including all amounts then
held by the Trust or thereafter received by the Trust with respect to such
Accounts, the Seller (or the Servicer on its behalf) shall take the following
actions and make the following determinations:
(i) not less than five Business Days prior to the Removal Date,
furnish to the Buyer, the Trustee, any Enhancement Providers and the
Rating Agencies a written notice (the "Removal Notice") specifying the
Determination Date (which may be the Determination Date on which such
notice is given) on which removal of the Receivables of one or more
Accounts (the "Removed Accounts") will occur (a "Removal Date");
(ii) from and after such Removal Date, cease to transfer to the
Buyer any and all Receivables arising in such Removed Accounts;
(iii) represent and warrant that the removal of any such Eligible
Account on any Removal Date shall not, in the reasonable belief of the
Seller, cause an Early Amortization Event to occur or cause the Pool
Balance to be less than the Required Participation Amount;
(iv) represent and warrant that no selection procedures believed by
the Seller to be adverse to the interests of the Beneficiaries were
utilized in selecting the Accounts to be removed; and
(v) on or before the fifth Business Day after the Removal Date,
furnish to the Trustee a computer file, microfiche list or other list of
the Removed Accounts that were removed on the Removal Date, specifying for
each Removed Account as of the date of the Removal Notice its number, the
aggregate amount outstanding in such Removed Account and the aggregate
amount of Principal Receivables therein and represent that such computer
file, microfiche list or other list of the Removed Accounts is true and
complete in all material respects.
(c) Subject to Section 2.6(b), on the Removal Date with respect to any
such Removed Account, such Removed Account shall be deemed removed by operation
of this Agreement for all purposes. After the Removal Date and upon the written
request of the Servicer, the Buyer, subject to Section 2.6(d), shall deliver to
the Seller a reassignment in substantially the form of Exhibit B (the
"Reassignment").
(d) Notwithstanding any other provision of this Agreement, the Buyer
shall have the right to consent or to decline to consent to any removal of
Removed Accounts (and the related Receivables) to the Seller pursuant to this
Section 2.6. If the Buyer declines to consent to any such removal of Removed
Accounts (and the related Receivables) to the Seller, the Buyer shall provide
notice thereof to the Rating Agencies.
Section 2.7 Removal of Ineligible Accounts. (a) On any date on which an
Account becomes an Ineligible Account (which shall be deemed the Removal
Commencement Date with respect to such Account), the Seller shall commence
removal of such Ineligible Account in the manner prescribed in Section 2.7(b).
Contribution and Sale Agreement
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(b) With respect to each Account that becomes an Ineligible Account, the
Seller (or the Servicer on its behalf) shall take the following actions and make
the following determinations:
(i) furnish to the Buyer, the Trustee and any Enhancement
Providers a Removal Notice specifying a Removal Commencement Date and the
Ineligible Accounts to be treated as Designated Accounts;
(ii) determine on the Removal Commencement Date with respect to
such Designated Accounts the Designated Balance with respect to each such
Designated Account and amend Schedule 1 by delivering to the Buyer a
computer file or microfiche or written list containing a true and complete
list of the Removed Accounts specifying for each such Account, as of the
Removal Commencement Date, its account number, the aggregate amount of
Receivables outstanding in such Account and the Designated Balance;
(iii) from and after such Removal Commencement Date, cease to
transfer to the Buyer any and all Receivables arising in such Designated
Accounts;
(iv) if such Account was an Ineligible Account at the time it was
originally designated as an Account, from and after such Removal
Commencement Date, allocate Collections of Principal Receivables in
respect of each Designated Account, first to the oldest outstanding
principal balance of such Designated Account, until the Removal Date with
respect thereto; and
(v) if such Account was an Ineligible Account at the time it was
originally designated as an Account, on each Business Day from and after
such Removal Commencement Date to and until the related Removal Date,
allocate (A) to the Buyer Defaulted Receivables and Collections of
Non-Principal Receivables and Collections of Non-Principal Receivables in
respect of each Designated Account, based on the ratio of the aggregate
amount of Principal Receivables in all Designated Accounts sold to the
Buyer on such Business Day to the total aggregate amount of Principal
Receivables in all such Designated Accounts on such Business Day and (B)
to the Seller, the remainder of the Defaulted Receivables and Collections
of Non-Principal Receivables in all such Designated Accounts on such
Business Day.
(c) On the Removal Date with respect to any such Designated Account, the
Seller shall cease to allocate any Collections therefor in accordance herewith
and such Designated Account shall be deemed a Removed Account. After the Removal
Date and upon the written request of the Servicer, the Buyer shall deliver to
the Seller a Reassignment; provided, however, that notwithstanding any other
provision of this Agreement, unless such Account was an Ineligible Account at
the time it was originally designated as an Account, the Reassignment shall
reassign only the Account and shall not reassign any Receivable existing in such
Account as of the related Removal Date.
Section 2.8 Sale of Ineligible Receivables. The Seller shall sell to the
Buyer on each Transfer Date any and all Receivables arising in any Eligible
Accounts that are Ineligible
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Receivables, provided that on the Cut-Off Date or, in the case of Receivables
arising in Additional Accounts, on the related Additional Cut-Off Date, and on
the applicable Transfer Date, the Account in which such Receivables arise is an
Eligible Account.
ARTICLE III
Administration and Servicing of Receivables
Section 3.1 The Servicer. CDF shall service and administer the Receivables
in accordance with the terms of the Pooling and Servicing Agreement.
Section 3.2 Servicing Compensation. As full compensation for its servicing
activities under the Pooling and Servicing Agreement, CDF shall be entitled to
receive the Servicing Fee on each Distribution Date so long as it is the
Servicer under the Pooling and Servicing Agreement. The Servicing Fee shall be
paid in accordance with the terms of the Pooling and Servicing Agreement.
ARTICLE IV
Rights of Certificateholders and
Allocation and Application of Collections
Section 4.1 Allocations and Applications of Collections and Other Funds.
The Servicer will apply all Collections with respect to the Receivables and all
funds on deposit in the Collection Account as described in Article IV of the
Pooling and Servicing Agreement.
ARTICLE V
Other Matters Relating to the Seller
Section 5.1 Merger or Consolidation of, or Assumption of, the Obligations
of the Seller. The Seller shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(a) the corporation formed by such consolidation or into which the
Seller is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Seller substantially as an entirety shall be a
corporation organized and existing under the laws of the United States of
America or any State or the District of Columbia and, if the Seller is not the
surviving entity, such corporation shall assume, without the execution or filing
of any paper or any further act on the part of any of the parties hereto, the
performance of every covenant and obligation of the Seller hereunder; and
(b) the Seller has delivered to the Buyer and the Trustee an Officers'
Certificate each stating that such consolidation, merger, conveyance or transfer
comply with this Section 5.1 and that all conditions precedent herein provided
for relating to such transaction have been complied with.
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Section 5.2 Seller's Indemnification of the Buyer. The Seller shall
indemnify and hold harmless the Buyer, from and against any loss, liability,
expense, claim, damage or injury suffered or sustained by reason of any acts,
omissions or alleged acts or omissions arising out of activities of the Seller
pursuant to this Agreement arising out of or based on the arrangement created by
this Agreement and the activities of the Seller taken pursuant thereto,
including any judgment, award, settlement, reasonable attorneys' fees and other
costs or expenses incurred in connection with the defense of any actual or
threatened action, proceeding or claim; provided, however, that the Seller shall
not indemnify the Buyer if such acts, omissions or alleged acts or omissions
constitute fraud, gross negligence or wilful misconduct by the Buyer; and
provided further, that such Seller shall not indemnify the Buyer for any
liabilities, cost or expense of the Buyer with respect to any federal, state or
local income or franchise taxes (or any interest or penalties with respect
thereto) required to be paid by the Buyer in connection herewith to any taxing
authority. Any indemnification under this Article V shall survive the
termination of the Agreement.
ARTICLE VI
Termination
This Agreement will terminate immediately after the Trust terminates
pursuant to the Pooling and Servicing Agreement. In addition, the Buyer shall
not purchase Receivables from the Seller nor shall the Seller designate
Additional Accounts if the Seller shall become an involuntary party to (or be
made the subject of) any proceeding provided for by any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings of or
relating to the Seller or relating to all or substantially all of its property
(an "Involuntary Case") and such Involuntary Case shall have continued for a
period of ten Business Days from and including the day of receipt by the Seller
at its principal corporate office of notice of such Involuntary Case; provided,
that during such ten Business Day period, the Buyer shall suspend its purchase
of Receivables and shall hold all Collections of Principal Receivables that
would have been available to purchase Receivables in the Collection Account and
(a) if by the first Business Day after such ten Business Day period, the Buyer
has not obtained an order from the court having jurisdiction of such case or
filing which order approves the continuation of the sale of Receivables by the
Seller to the Buyer and which provides that the Buyer and any of its transferees
(including the Trustee) may rely on such order for the validity and nonavoidance
of such transfer (the "Order"), the Buyer shall hold such Collections in the
Collection Account until such time as they may be paid as elsewhere provided
herein and shall not purchase Receivables thereafter or designate Additional
Accounts for transfer to the Buyer, or (b) if by such first Business Day, the
Buyer has obtained such Order, the Seller may continue selling Receivables, and
the Buyer may continue purchasing Receivables, pursuant to the terms hereof, as
modified by the immediately succeeding sentence. During the period after the ten
Business Day period described above and before the end of the 60-day period
described below, the purchase price of the Receivables transferred during such
period, notwithstanding anything in this Agreement to the contrary, shall be
paid to the Seller by the Buyer in cash not later than the same Business Day of
any sale of Receivables. During such period, Receivables will be considered
transferred to the Buyer only to the extent that the purchase price therefor has
been paid in cash on the same Business Day. If an Order is obtained but
subsequently is reversed or rescinded or expires, the Seller shall immediately
cease selling Receivables to the Buyer and the Buyer shall immediately
Contribution and Sale Agreement
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cease buying Receivables. The Seller shall give prompt written notice to each of
the Buyer and the Trustee immediately upon becoming a party to an Involuntary
Case. If by the first Business Day after the 60-day period after such
involuntary filing, such Involuntary Case has not been dismissed, the Buyer
shall not purchase thereafter Receivables or designated Additional Accounts for
transfer to the Issuer.
ARTICLE VII
Miscellaneous Provisions
Section 7.1 Amendment. (a) This Agreement may be amended from time to time
by the Seller and the Buyer; provided, however, that such action shall not, as
evidenced by an Officers' Certificate for the Seller addressed and delivered to
the Trustee, adversely affect in any material respect the interests of any
Investor Certificateholder.
(b) In the event that Section 7.1(a) is not then applicable, this
Agreement may also be amended from time to time by the Buyer and the Seller with
the consent of the Holders of Investor Certificates evidencing more than 50% of
the aggregate unpaid principal amount of the Investor Certificates of all
materially adversely affected Series, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Seller; provided,
however, that no such amendment shall (i) reduce in any manner the amount of or
delay the timing of any distributions to be made to Investor Certificateholders
or deposits of amounts to be so distributed with the amount available under any
Enhancement without the consent of each affected Investor Certificateholder,
(ii) change the definition of or the manner of calculating the interest of any
Investor Certificateholders without the consent of each affected
Certificateholder, (iii) reduce the aforesaid percentage required to consent to
any such amendment without the consent of each Certificateholder or (iv)
adversely affect the rating of any Series or Class by any Rating Agency without
the consent of the Holders of all of the Investor Certificates of such Series or
Class. Any amendment to be effected pursuant to this paragraph (b) shall be
deemed to materially adversely affect all outstanding Series, other than any
Series with respect to which such amendment shall not, as evidenced by an
Officers' Certificate for the Seller, addressed and delivered to the Trustee,
adversely affect in any material respect the interests of any Investor
Certificateholder of such Series. The Trustee may, but shall not be obligated
to, enter into any such amendment which affects the Trustee's rights, duties or
immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent (other
than an amendment pursuant to paragraph (a)), the Seller shall furnish
notification of the substance of such amendment to each Investor
Certificateholder, each Enhancement Provider, each Agent and each Rating Agency.
(d) It shall not be necessary for the consent of Investor
Certificateholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Investor Certificateholders shall be
subject to such reasonable requirements as the Trustee may prescribe.
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(e) Notwithstanding anything in this Section to the contrary, no
amendment may be made to this Agreement which would adversely affect in any
material respect the interests of any Enhancement Provider without the consent
of such Enhancement Provider.
Section 7.2 Protection of Right, Title and Interest to Receivables. (a)
The Seller shall cause this Agreement, all amendments hereto and/or all
financing statements and continuation statements and any other necessary
documents covering the Buyer's right, title and interest to the Receivables and
Collateral Security relating thereto to be promptly recorded, registered and
filed, and at all times to be kept recorded, registered and filed, all in such
manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of the Buyer hereunder. The Seller shall
deliver to the Buyer file-stamped copies of, or filing receipts for, any
document recorded, registered or filed as provided above, as soon as available
following such recording, registration or filing. The Buyer shall cooperate
fully with the Seller in connection with the obligations set forth above and
will execute any and all documents reasonably required to fulfill the intent of
this Section 7.2(a).
(b) Within 30 days after the Seller makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with Section 7.2(a) seriously
misleading within the meaning of the UCC, the Seller shall give the Buyer and
any Agent notice of any such change and shall file such financing statements or
amendments as may be necessary to continue the perfection of the Buyer's
security interest in the Receivables and the proceeds thereof.
(c) The Seller will give the Buyer prompt written notice of any
relocation of any office at which it keeps Records concerning the Receivables or
of its principal executive office if, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new financing
statement and shall file such financing statements or amendments as may be
necessary to perfect or to continue the perfection of the Buyer's ownership
interest in the Receivables and the proceeds thereof. The Seller will at all
times maintain its principal executive offices within the United States of
America.
Section 7.3 Limited Recourse. Notwithstanding anything to the contrary
contained herein, the obligations of the Buyer hereunder shall not be recourse
to the Buyer (or any person or organization acting on behalf of the Buyer or any
affiliate, Officer or director of the Buyer), other than to (a) the portion of
the Seller's Interest on any date of determination which is in excess of the
Required Participation Amount and (b) any other assets of the Buyer not pledged
to third parties or otherwise encumbered in a manner permitted by the Buyer's
limited liability company agreement; provided, however, that any payment by the
Buyer made in accordance with this Section 7.3 shall be made only after payment
in full of any amounts that the Buyer is obligated to deposit in the Collection
Account pursuant to this Agreement; provided further that the Investor
Certificateholders shall be entitled to the benefits of the subordination of the
Collections allocable to the Seller's Interest to the extent provided in the
Supplements.
Section 7.4 No Petition. The Seller hereby covenants and agrees that it
will not at any time institute against the Buyer or any member of the Buyer any
bankruptcy, reorganization,
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arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States Federal or state bankruptcy or similar law.
Section 7.5 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, (INCLUDING SECTION 5-1401(1) OF
THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY
OTHER CONFLICT OF LAW PROVISIONS OF THE STATE OF NEW YORK).
Section 7.6 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, to (i) in
the case of the Seller, 655 Maryville Centre Drive, St. Louis, Missouri 63141,
Attention: Secretary, and (ii) in the case of the Buyer, 655 Maryville Centre
Drive, St. Louis, Missouri 63141, Attention: Manager, or in each case at such
other address as shall be designated by such party in a written notice to the
other party.
Section 7.7 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or rights of the Certificateholders.
Section 7.8 Assignment. Notwithstanding anything to the contrary contained
herein, this Agreement may not be assigned by the Seller without the prior
consent of the Buyer and the Trustee. The Buyer may assign its rights, remedies,
powers and privileges under this Agreement to the Trust pursuant to the Pooling
and Servicing Agreement.
Section 7.9 Further Assurances. The Seller agrees to do and perform, from
time to time, any and all acts and to execute any and all further instruments
required or reasonably requested by the Buyer more fully to effect the purposes
of this Agreement, including the execution of any financing statements or
continuation statements relating to the Receivables for filing under the
provisions of the UCC of any applicable jurisdiction.
Section 7.10 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Buyer, any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section 7.11 Counterparts. This Agreement may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
Section 7.12 Third-Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties hereto, the Certificateholders, the
Trustee and the other Beneficiaries
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and their respective successors and permitted assigns. Except as otherwise
provided in this Agreement, no other Person will have any right or obligation
hereunder.
Section 7.13 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
Section 7.14 Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
Section 7.15 Submission to Jurisdiction. Each of the parties hereto hereby
irrevocably and unconditionally: (a) submits for itself and its property in any
legal action or proceeding relating to this Agreement, the Assignments, the
Reassignments or the other documents executed and delivered in connection
herewith or for recognition and enforcement of any judgment in respect thereof,
to the non-exclusive general jurisdiction of the courts of the State of New
York, the courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of such action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Person at its
address determined in accordance with Section 7.6; and
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to sue
in any other jurisdiction.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the Seller and the Buyer have caused this Receivables
Contribution and Sale Agreement to be duly executed as of the day and year first
above written.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P., as
Seller
By: DEUTSCHE FLOORPLAN RECEIVABLES,
INC., its general partner
By: /s/ Joseph B. Thomas
Name: Joseph B. Thomas
Title:Treasurer
|
Contribution and Sale Agreement
S-1
CDF FINANCING, L.L.C., as Buyer
By: /s/ Cristina M. Hartar
Name: Cristina M. Hartar
Title: Manager
|
Contribution and Sale Agreement
S-2
EXHIBIT A
TO RCSA
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.4
of the Receivables Contribution and Sale Agreement)
ASSIGNMENT No. OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of ,
(this "Assignment"), between Deutsche Floorplan Receivables, L.P., as [seller]
[contributor] (the "Seller"), and CDF Financing, L.L.C., as Buyer ("Buyer"),
pursuant to the Receivables Contribution and Sale Agreement referred to below.
WITNESETH:
WHEREAS, the parties hereto are parties to the Receivables Contribution
and Sale Agreement dated as of December 31, 2002 (as amended or supplemented,
the "Receivables Contribution and Sale Agreement");
WHEREAS, pursuant to the Receivables Contribution and Sale Agreement, the
Seller wishes to designate Additional Accounts to be included as Accounts and to
convey the Receivables and related Collateral Security of such Additional
Accounts, whether now existing or hereafter created, to the Buyer as part of the
corpus of the Trust (as each such term is defined in the Receivables
Contribution and Sale Agreement); and
WHEREAS the Buyer is willing to accept such designation and conveyance
subject to the terms and conditions hereof;
NOW, THEREFORE, the Seller and the Buyer hereby agree as follows:
1. Defined Terms. All capitalized terms used herein (including in the
recitals hereto) shall have the meanings ascribed to them in the Receivables
Contribution and Sale Agreement unless otherwise defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
designated hereby, ___________, 20___.
2. Designation of Additional Accounts. The Seller hereby delivers
herewith a computer file or microfiche or written list containing a true and
complete list of all such Additional Accounts specifying for each such Account,
as of the Additional Cut-Off Date, its account number, the aggregate amount of
Receivables outstanding in such Account and the aggregate amount of Principal
Receivables in such Account. Such file or list shall, as of the date of this
Assignment, supplement Schedule 1 to the Receivables Contribution and Sale
Agreement.
3. Conveyance of Receivables. (a) The Seller does hereby [sell]
[contribute], transfer, assign, set over and otherwise convey, without recourse
(except as expressly provided in the Receivables Contribution and Sale
Agreement), to the Buyer, on the Addition Date all of its right, title and
interest in, to and under the Receivables in such Additional Accounts, all
Contribution and Sale Agreement
A-1
Collateral Security and the related Floorplan Rights with respect thereto, owned
by the Seller and existing at the close of business on the Additional Cut-Off
Date and thereafter created from time to time, all monies due or to become due
and all amounts received with respect thereto and all proceeds (including
"proceeds" as defined in the UCC and Recoveries) thereof. The foregoing [sale]
[contribution], transfer, assignment, set-over and conveyance does not
constitute and is not intended to result in the creation or an assumption by the
Buyer of any obligation of the Servicer, the Seller or any other Person in
connection with the Accounts, the Receivables or under any agreement or
instrument relating thereto, including any obligation under the Financing
Agreement, Floorplan Agreement and any Participation Agreement, including any
other obligation to any Dealer or Manufacturer.
(b) In connection with such [sale] [contribution], the Seller agrees to
record and file, at its own expense, a financing statement on form UCC-1 (and
continuation statements when applicable) with respect to the Receivables now
existing and hereafter created for the sale of chattel paper, accounts and
general intangibles (as defined in the UCC) meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect the sale and assignment of the Receivables and the Collateral
Security to the Buyer, and to deliver a file-stamped copy of such financing
statements or other evidence of such filing to the Buyer on or prior to the
Addition Date to the extent, if any, that the UCC-1 financing statements filed
pursuant to Section 2.1 of the Receivables Contribution and Sale Agreement are
not sufficient for such purpose. In addition, the Seller shall cause to be
timely filed in the appropriate filing office any UCC-1 financing statement and
continuation statement necessary to perfect any sale of Receivables to the
Seller. The Buyer shall be under no obligation whatsoever to file such financing
statement, or a continuation statement to such financing statement, or to make
any other filing under the UCC in connection with such [sale] [contribution].
The parties hereto intend that the [sales] [contributions] of Receivables
effected by this Agreement be [sales] [true contributions].
(c) In connection with such [sale] [contribution], the Seller further
agrees, at its own expense, on or prior to the Addition Date, to indicate in its
books and records, which may include its computer files, that the Receivables
created in connection with the Additional Accounts designated hereby have been
sold and the Collateral Security assigned to the Buyer pursuant to this
Assignment and sold to the Trust pursuant to the Pooling and Servicing Agreement
for the benefit of the Certificateholders and the other Beneficiaries.
4. Acceptance by Buyer. Subject to the satisfaction of the conditions
set forth in Section 6 of this Assignment, the Buyer hereby acknowledges its
acceptance of all right, title and interest to the property, now existing and
hereafter created, conveyed to the Buyer pursuant to Section 3(a) of this
Assignment. The Buyer further acknowledges that, prior to or simultaneously with
the execution and delivery of this Assignment, the Seller delivered to the Buyer
the computer file or microfiche or written list relating to the Additional
Accounts described in Section 2 of this Assignment.
5. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Buyer, on behalf of the Trust, as of the date of
this Assignment and as of the Addition Date that:
Contribution and Sale Agreement
A-2
(a) Legal, Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect affecting creditors, rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity);
(b) Organization and Good Standing. The Seller is a limited
partnership duly organized and validly existing and in good standing under
the law of the State of its organization and has, in all material
respects, full limited partnership power, authority and legal right to own
its properties and conduct its business as such properties are presently
owned and such business is presently conducted, and to execute, deliver
and perform its obligations under this Assignment;
(c) Due Qualification. The Seller is duly qualified to do business
and, where necessary, is in good standing as a foreign limited partnership
(or is exempt from such requirement) and has obtained all necessary
licenses and approvals in each jurisdiction in which the conduct of its
business requires such qualification except where the failure to so
qualify or obtain licenses or approvals would not have a material adverse
effect on its ability to perform its obligations hereunder;
(d) Eligible Accounts. Each Additional Account designated hereby
is an Eligible Account;
(e) Selection Procedures. No selection procedures believed by the
Seller to be adverse to the interests of the Beneficiaries were utilized
in selecting the Additional Accounts designated hereby;
(f) Insolvency. As of the Notice Date and the Addition Date, the
Seller is not insolvent nor, after giving effect to the conveyance set
forth in Section 3 of this Assignment, will it have been made insolvent,
nor is it aware of any pending insolvency;
(g) Valid Transfer. This Assignment constitutes a valid [sale]
[contribution], transfer and assignment to the Buyer of all right, title
and interest of the Seller in the Receivables and the Collateral Security
and the proceeds thereof and upon the filing of the financing statements
described in Section 3 of this Assignment with the Secretary of State of
the State of Nevada and, in the case of the Receivables [and the
Collateral Security] hereafter created and the proceeds thereof, upon the
creation thereof, the Buyer shall have a first priority perfected
ownership interest in such property, except for Liens permitted under
Section 2.6(a) of the Receivables Contribution and Sale Agreement;
(h) Due Authorization. The execution and delivery of this
Assignment and the consummation of the transactions provided for or
contemplated by this Assignment have been duly authorized by the Seller by
all necessary limited partnership action on the part of the Seller;
(i) No Conflict. The execution and delivery of this Assignment,
the performance of the transactions contemplated by this Assignment and
the fulfillment of
Contribution and Sale Agreement
A-3
the terms hereof, will not conflict with, result in any breach of any of
the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under, any indenture,
contract, agreement, mortgage, deed of trust, or other instrument to which
the Seller is a party or by which it or its properties are bound;
(j) No Violation. The execution and delivery of this Assignment by
the Seller, the performance of the transactions contemplated by this
Assignment and the fulfillment of the terms hereof will not conflict with
or violate any material Requirements of Law applicable to the Seller;
(k) No Proceedings. There are no proceedings or, to the best
knowledge of the Seller, investigations pending or threatened against the
Seller before any Governmental Authority (i) asserting the invalidity of
this Assignment, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Assignment, (iii) seeking any
determination or ruling that, in the reasonable judgment of the Seller,
would materially and adversely affect the performance by the Seller of its
obligations under this Assignment, (iv) seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Assignment or (v) seeking to affect adversely the
income tax attributes of the Trust under the United States federal or any
State income, single business or franchise tax systems;
(l) Record of Accounts. As of the Addition Date, Schedule 1 to
this Assignment is an accurate and complete listing in all material
respects of all the Additional Accounts as of the Additional Cut-Off Date
and the information contained therein with respect to the identity of such
Accounts and the Receivables existing thereunder is true and correct in
all material respects as of the Additional Cut-Off Date;
(m) No Liens. Each Receivable and all Collateral Security existing
on the Addition Date has been conveyed to the Buyer free and clear of any
Lien;
(n) All Consents Required. With respect to each Receivable and all
Collateral Security existing on the Addition Date, all consents, licenses,
approvals or authorizations of or registrations or declarations with any
Governmental Authority required to be obtained, effected or given by the
Seller in connection with the conveyance of such Receivable or Collateral
Security to the Buyer, the execution and delivery of this Assignment and
the performance of the transactions contemplated hereby have been duly
obtained, effected or given and are in full force and effect; and
(o) Eligible Receivables. On the Additional Cut-Off Date each
Receivable conveyed to the Buyer pursuant to this Assignment as of such
date is an Eligible Receivable or, if such Receivable is not an Eligible
Receivable, such Receivable is conveyed to the Buyer in accordance with
Section 2.8 of the Receivables Contribution and Sale Agreement.
6. Conditions Precedent. The acceptance of the Buyer set forth in
Section 4 of this Assignment is subject to the satisfaction, on or prior to the
Addition Date, of the following conditions precedent:
Contribution and Sale Agreement
A-4
(a) Representations and Warranties. Each of the representations
and warranties made by the Seller in Section 5 of this Assignment shall be
true and correct as of the date of this Assignment and as of the Addition
Date;
(b) Agreement. Each of the conditions set forth in Section 2.4(b)
of the Receivables Contribution and Sale Agreement applicable to the
designation of the Additional Accounts to be designated hereby shall have
been satisfied; and
(c) Addition Information. The Seller shall have delivered to the
Buyer such information as was reasonably requested by the Buyer to satisfy
itself as to the accuracy of the representation and warranty set forth in
Section 5(d) of this Assignment.
7. Ratification of Agreement. As supplemented by this Assignment, the
Receivables Contribution and Sale Agreement is in all respects ratified and
confirmed and the Receivables Contribution and Sale Agreement as so supplemented
by this Assignment shall be read, taken and construed as one and the same
instrument.
8. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties in separate counterparts), each of which
shall be an original but all of which together shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK, (INCLUDING SECTION 5-1401(1) OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY
OTHER CONFLICT OF LAW PROVISIONS OF THE STATE OF NEW YORK).
Contribution and Sale Agreement
A-5
IN WITNESS WHEREOF, the Seller and the Buyer have caused this Assignment
to be duly executed and delivered on the day and year first above written.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P., as Seller
By: DEUTSCHE FLOORPLAN RECEIVABLES,
INC., its general partner
By: ___________________________________________
Name:
Title:
CDF FINANCING, L.L.C.,
as Buyer
By: ___________________________________________
Name:
Title:
Contribution and Sale Agreement
A-6
EXHIBIT B
TO RCSA
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
(As required by Section 2.6 of the Receivables
Contribution and Sale Agreement referred to below)
REASSIGNMENT NO. __ OF RECEIVABLES, dated as of __________, ____, by
and between DEUTSCHE FLOORPLAN RECEIVABLES, L.P., as seller (the
"Seller"), and CDF FINANCING, L.L.C., as buyer (the "Buyer"),
pursuant to the Receivables Contribution and Sale Agreement referred
to below.
WITNESSETH
WHEREAS the Seller and the Buyer are parties to the Receivables
Contribution and Sale Agreement dated as of December 31, 2002 (as amended or
supplemented, the "Receivables Contribution and Sale Agreement");
WHEREAS, pursuant to the Receivables Contribution and Sale Agreement, the
Seller wishes to remove all Receivables from certain Accounts, the Collateral
Security thereof and the related Floorplan Rights (the "Removed Accounts") and
to cause the Buyer to reconvey the Receivables of such Removed Accounts and such
Collateral Security and Floorplan Rights, whether now existing or hereafter
created, and all amounts currently held by the Buyer or thereafter received by
the Trust in respect of such Removed Accounts, from the Buyer to the Seller (as
each such term is defined in the Receivables Contribution and Sale Agreement);
and
WHEREAS the Buyer is willing to accept such removal and to reconvey the
Receivables in the Removed Accounts, such Collateral Security and any related
amounts held or received by the Trust subject to the terms and conditions
hereof.
NOW, THEREFORE, the Seller and the Buyer hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein
shall have such defined meanings when used herein, unless otherwise defined
herein.
"Removal Date" shall mean, with respect to the Removed Accounts
designated hereby, __________________.
2. Notice of Removed Accounts. The Seller shall deliver to the Buyer,
the Trustee, any Enhancement Providers and the Rating Agencies a computer file
or microfiche or written list containing a true and complete list of the Removed
Accounts specifying for each such Account, as of the Removal Commencement Date,
its account number, the aggregate amount of Receivables outstanding in such
Accounts and the Designated Balance. Such list shall be marked as Schedule 1 to
this Reassignment and shall be incorporated into and made a part of this
Reassignment as of the Removal Date and shall amend Schedule 1 to the
Receivables Contribution and Sale Agreement.
Contribution and Sale Agreement
B-1
3. Conveyance of Receivables and Accounts. (a) The Buyer does hereby
transfer, assign, set over and otherwise convey to the Seller, without recourse,
representation or warranty on and after the Removal Date, all right, title and
interest of the Trust in, to and under all [Receivables now existing at the
close of business on the Removal Date and thereafter created from time to time
until the termination of the Trust in Removed Accounts designated hereby, all
Collateral Security thereof, the related Floorplan Rights, all monies due or to
become due and all amounts received with respect thereto (including all
Non-Principal Receivables), all proceeds (as defined in of the UCC and
Recoveries) thereof relating thereto][in the case of Removed Accounts which are
to be removed pursuant to Section 2.7 of the Receivables Contribution and Sale
Agreement and which were not Ineligible Accounts at the time they were
originally designated as Accounts, replace the immediately preceding bracketed
text with the following: the Removed Accounts but not any right, title and
interest of the Trust in, to and under (i) any Receivables existing as of the
Removal Date in Removed Accounts designated hereby, (ii) all Collateral Security
relating to such Receivables, (iii) the related Floorplan Rights, (iv) all
monies due or to become due and all amounts received with respect to such
Receivables (including all Non-Principal Receivables), (v) all proceeds (as
defined in the UCC and Recoveries) thereof relating to such Receivables, it
being understood that the items described in clauses (i)-(v) will continue to be
Trust Assets] .
(b) If requested by the Seller, in connection with such transfer, the
Buyer agrees to execute and deliver to the Seller, on or prior to the date of
this Reassignment, a termination statement with respect to the Receivables
existing at the close of business on the Removal Date and thereafter created
from time to time and Collateral Security thereof in the Removed Accounts
reassigned hereby (which may be a single termination statement with respect to
all such Receivables and Collateral Security) evidencing the release by the
Trust of its lien on the Receivables in the Removed Accounts and the Collateral
Security, and meeting the requirements of applicable state law, in such manner
and such jurisdictions as are necessary to remove such lien.
4. Acceptance by Buyer. The Buyer hereby acknowledges that, prior to or
simultaneously with the execution and delivery of this Reassignment, the Seller
delivered to the Buyer the computer file or such microfiche or written list
described in Section 2(b) of this Reassignment.
5. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Buyer as of the date of this Reassignment and as
of the Removal Date:
(a) Legal, Valid and Binding Obligation. This Reassignment
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors' rights generally and except
as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity);
(b) No Early Amortization Event. The removal of the Accounts
hereby removed shall not, in the reasonable belief of the Seller, cause an
Early Amortization
Contribution and Sale Agreement
B-2
Event to occur or cause the Pool Balance to be less than the Required
Participation Amount;
(c) Selection Procedures. No selection procedures believed by the
Seller to be adverse to the interests of the Beneficiaries were utilized
in selecting the Accounts to be removed; and
(d) True and Complete List. The list of Removed Accounts described
in Section 2(b) of this Assignment is, as of the Removal Commencement
Date, true and complete in all material respects.
provided, however, that in the event that the removal on such Removal Date
relates solely to Ineligible Accounts, the Seller shall be deemed to make only
the representations and warranties contained in paragraph 5(a) above.
6. Condition Precedent. In addition to the conditions precedent set
forth in Section 2.6 of the Receivables Contribution and Sale Agreement, the
obligation of the Buyer to execute and deliver this Reassignment is subject to
the Seller having delivered on or prior to the Removal Date to the Trustee, the
Buyer, any Agent, and any Enhancement Providers an Officers' Certificate
certifying that (i) as of the Removal Date, all requirements set forth in
Section 2.6 of the Agreement for removing such Accounts and reconveying the
Receivables of such Removed Accounts, the Collateral Security and the related
Floorplan Rights, whether existing at the close of business on the Removal Date
or thereafter created from time to time until the termination of the Trust, have
been satisfied, and (ii) each of the representations and warranties made by the
Seller in Section 5 hereof is true and correct as of the date of this
Reassignment and as of the Removal Date. The Buyer may conclusively rely on such
Officers' Certificate, shall have no duty to make inquiries with regard to the
matters set forth therein and shall incur no liability in so relying.
7. Ratification of Agreement. As supplemented by this Reassignment the
Receivables Contribution and Sale Agreement is in all respects ratified and
confirmed and the Receivables Contribution and Sale Agreement as so supplemented
by this Reassignment shall be read, taken and construed as one and the same
instrument.
8. Counterparts. This Reassignment may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, (INCLUDING SECTION 5-1401(1) OF
THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY
OTHER CONFLICT OF LAW PROVISIONS OF THE STATE OF NEW YORK).
Contribution and Sale Agreement
B-3
IN WITNESS WHEREOF, the undersigned have caused this Reassignment to be
duly executed and delivered on the day and year first above written.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P., as Seller
By: DEUTSCHE FLOORPLAN RECEIVABLES,
INC., its general partner
By:______________________________________________
Name:
Title:
CDF FINANCING, L.L.C.,
as Buyer
By: _____________________________________________
Name:
Title:
Contribution and Sale Agreement
Schedule 1
List of Accounts
[Provided separately to the Buyer and the
Trustee and deemed to be incorporated herein.]
Contribution and Sale Agreement
Exhibit 4.12
AMENDMENT TO
RECEIVABLES CONTRIBUTION AND SALE AGREEMENT
This AMENDMENT is made and entered into as of April 1, 2003 (this
"Amendment") by and between Deutsche Floorplan Receivables, L.P., a Delaware
limited partnership, as Seller (the "Limited Partnership") and CDF Financing,
L.L.C., a Delaware limited liability company, as Buyer (the "LLC").
BACKGROUND
WHEREAS, Limited Partnership and the LLC are parties to the Receivables
Contribution and Sale Agreement, dated as of December 31, 2002 (the "Sale
Agreement"); and
WHEREAS, the parties to the Sale Agreement desire to amend the Sale
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms defined in the Sale Agreement
and used in this Amendment but not otherwise defined herein shall have the
meanings assigned to them in the Sale Agreement.
SECTION 2. Amendments.
(a) Amendment to Representations and Warranties. Subsection 2.3(a)
of the Sale Agreement is hereby amended by adding the following new clause
at the end thereof:
"(vi) The additional representations and warranties set forth
in Schedule 2 hereto are true and correct."
(b) Schedule 2. The Sale Agreement is hereby amended by adding
Schedule 2 attached hereto as Schedule 2 to the Sale Agreement.
SECTION 3. Representations and Warranties. In order to induce the parties
hereto to enter into this Amendment, each of the parties hereto represents and
warrants unto the other parties hereto as set forth in this Section 3:
(a) Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by such party of this Amendment are within its
powers, have been duly authorized by all necessary action, and do not: (i)
contravene its organizational documents; or (ii) contravene any
contractual restriction, law or governmental regulation or court decree or
order binding on or affecting it; and
(b) Validity, etc. This Amendment constitutes the legal, valid and
binding obligation of such party enforceable against such party in
accordance with its terms, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights and general equitable
principles.
SECTION 4. Binding Effect; Ratification. (a) This Amendment shall become
effective, as of the date first set forth above, when counterparts hereof shall
have been executed and delivered by the parties hereto, and thereafter shall be
binding on the parties hereto and their respective successors and assigns.
(b) Any reference to the Sale Agreement (whether in the Sale
Agreement or in any other agreement or document) from and after the date
hereof shall be deemed to refer to the Sale Agreement as amended hereby,
unless otherwise expressly stated.
(c) Except as expressly amended hereby, the Sale Agreement shall
remain in full force and effect and is hereby ratified and confirmed by
the parties hereto.
SECTION 5. Miscellaneous. (a) THIS AMENDMENT AND THE OBLIGATIONS ARISING
HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401(1) OF THE
GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REGARD TO ANY OTHER CONFLICT OF
LAW PROVISIONS THEREOF).
(b) Headings used herein are for convenience of reference only and
shall not affect the meaning of this Amendment or any provision hereof.
(c) This Amendment may be executed in any number of counterparts,
and by the parties hereto on separate counterparts, each of which when
executed and delivered shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(d) Executed counterparts of this Amendment may be delivered
electronically.
[SIGNATURES FOLLOW]
2
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their respective representatives thereunto duly authorized as of the day and
year first above written.
CDF FINANCING, L.L.C.
By: /s/ Joseph B. Thomas
Name: Joseph B. Thomas
Title: Manager
|
Amendment to Contribution
and Sale Agreement
S-1
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
By: Deutsche Floorplan Receivables, Inc., its
General Partner
By: Joseph B. Thomas
Name: Joseph B. Thomas
Title: Treasurer
Amendment to Contribution
and Sale Agreement
S-2
SCHEDULE 2
Perfection Representations and Warranties
1. General. This Agreement creates a valid and continuing security
interest (as defined in the applicable UCC) in all of the Seller's right, title
and interest in, to and under (i) the Receivables, (ii) the Collateral Security
and all proceeds thereof and (iii) the Floorplan Agreements (clauses (i), (ii)
and (iii) may be referred to herein as the "Receivables Property") in favor of
the Buyer, which (a) is enforceable against creditors of and purchasers from the
Seller, as such enforceability may be limited by applicable law, now or
hereafter in effect, and by general principles of equity (whether considered in
a suit at law or in equity), and (b) will be prior to all other Liens (other
than Liens permitted pursuant to paragraph 5 below) in such property.
2. Characterization. The Receivables constitute "accounts", "general
intangibles" or "tangible chattel paper" within the meaning of UCC Section
9-102. The Seller has taken all steps necessary to perfect its ownership
interest in the rights of CDF in the property securing the Receivables Property.
3. Creation. Immediately prior to the conveyance of the Receivables
pursuant to this Agreement, the Seller owns and has good and marketable title
to, or has a valid security interest in CDF's rights in, the Receivables
Property free and clear of any Lien, claim or encumbrance of any Person.
4. Perfection. The Seller has caused the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the ownership interest
arising under this Agreement in the Seller's rights in the Receivables Property.
5. Priority. Other than the ownership interests transferred to the
Buyer pursuant to this Agreement, the Seller has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Receivables
Property except as permitted by this Agreement. The Seller has not authorized
the filing of and is not aware of any financing statements against the Seller
that include a description of collateral covering the Receivables Property other
than any financing statement (i) relating to the security interests granted to
the Buyer under this Agreement, (ii) that has been terminated, or (iii) that has
been granted pursuant to the terms of the Related Documents. None of the
tangible chattel paper that constitutes or evidences the Receivables has any
marks or notations indicating that they have been pledged, assigned or otherwise
conveyed to any Person other than the Buyer. The Seller is not aware of any
judgment, ERISA or tax lien filings against it.
6. Survival of Perfection Representations. Notwithstanding any other
provision of this Agreement or any other Related Document, the Perfection
Representations contained in this Schedule 2 shall be continuing, and remain in
full force and effect.
7. No Waiver. The parties to this Agreement: (i) shall not, without
satisfying the Rating Agency Condition, waive any of the representations and
warranties in this Schedule 2 (the "Perfection Representations"); (ii) shall
provide the Rating Agencies with prompt written notice of any breach of the
Perfection Representations, and shall not, without satisfying the Rating Agency
2-1
Condition (as determined after any adjustment or withdrawal of the ratings
following notice of such breach) waive a breach of any of the Perfection
Representations.
8. Seller to Maintain Perfection and Priority. The Seller covenants
that, in order to evidence the interests of the Seller and the Buyer under this
Agreement, the Seller shall take such action, or execute and deliver such
instruments (other than effecting a Filing (as defined below), unless such
Filing is effected in accordance with this paragraph) as may be necessary or
advisable (including such actions as are requested by the Buyer) to maintain and
perfect, as a first priority interest, the Buyer's ownership interest in the
Seller's rights in the Receivables Property. The Servicer shall, from time to
time and within the time limits established by law, prepare and present to the
Buyer (and the Trustee) for the Buyer to authorize (based in reliance on the
Opinion of Counsel hereinafter provided for in this paragraph) the Seller to
file, all financing statements, amendments, continuations, financing statements
in lieu of a continuation statement, terminations, partial terminations,
releases or partial releases, or any other filings necessary or advisable to
continue, maintain and perfect the Buyer's ownership interest in the Seller's
rights in the Receivables Property as a first-priority interest (each a
"Filing"). The Servicer shall present each such Filing to the Buyer (and the
Trustee) together with (x) an Opinion of Counsel to the effect that such Filing
is (i) consistent with transfer of the ownership interest to the Buyer pursuant
to the Section 2.1 of this Agreement, (ii) satisfies all requirements and
conditions to such Filing in this Agreement and (iii) satisfies the requirements
for a Filing of such type under the UCC in the applicable jurisdiction (or if
the UCC does not apply, the applicable statute governing the perfection of
security interests), and (y) a form of authorization for the Buyer's signature.
Upon receipt of such Opinion of Counsel and form of authorization, the Buyer
shall promptly authorize in writing the Seller to, and the Seller shall, effect
such Filing under the UCC. Notwithstanding anything else in this Agreement to
the contrary, the Seller shall not have any authority to effect a Filing without
obtaining written authorization from the Buyer in accordance with this paragraph
(8).
Any reference in this Schedule to the Rating Agency Condition shall be
construed as if Standard & Poor's were the only Rating Agency.
2-2
Exhibit 4.13
RECEIVABLES SALE AGREEMENT
among
GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION,
as a Seller,
TRANSAMERICA COMMERCIAL FINANCE CORPORATION,
as a Seller,
and
CDF FUNDING, INC.,
as Buyer
Dated as of [ ], 2004
Receivables Sale Agreement
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS............................................................................... 1
Section 1.1 Definitions...................................................................... 1
Section 1.2 Other Interpretive Matters....................................................... 12
ARTICLE II SALES..................................................................................... 13
Section 2.1 Sales............................................................................ 13
Section 2.2 Acceptance by Buyer.............................................................. 14
Section 2.3 Characterization of Transfers.................................................... 14
Section 2.4 Purchase Price................................................................... 14
Section 2.5 Adjustments...................................................................... 15
Section 2.6 Addition of Accounts............................................................. 15
Section 2.7 Removal of Accounts.............................................................. 16
Section 2.8 Additional Sellers............................................................... 17
Section 2.9 Additional Originators........................................................... 17
ARTICLE III CONDITIONS PRECEDENT...................................................................... 17
Section 3.1 Conditions to Initial Transfer................................................... 17
Section 3.2 Conditions to all Transfers...................................................... 18
ARTICLE IV OTHER MATTERS RELATING TO SELLERS......................................................... 18
Section 4.1 Merger or Consolidation of, or Assumption of the Obligations of, Sellers,etc..... 18
ARTICLE V BANKRUPTCY EVENTS......................................................................... 19
Section 5.1 Rights upon the Occurrence of a Bankruptcy Event................................. 19
ARTICLE VI REPRESENTATIONS, WARRANTIES AND COVENANTS................................................. 19
Section 6.1 Representations and Warranties of Seller......................................... 19
Section 6.2 Affirmative Covenants of Seller.................................................. 22
Section 6.3 Negative Covenants of Seller..................................................... 23
ARTICLE VII MISCELLANEOUS............................................................................. 24
Section 7.1 Notices.......................................................................... 24
Section 7.2 No Waiver; Remedies.............................................................. 26
Section 7.3 Successors and Assigns........................................................... 26
Section 7.4 Termination...................................................................... 26
Section 7.5 Survival......................................................................... 26
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-i- Receivables Sale Agreement
TABLE OF CONTENTS
(continued)
PAGE
Section 7.6 Complete Agreement; Modification of Agreement.................................... 27
Section 7.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL..................... 27
Section 7.8 Counterparts..................................................................... 28
Section 7.9 Severability..................................................................... 28
Section 7.10 Section Titles................................................................... 28
Section 7.11 No Setoff........................................................................ 28
Section 7.12 Further Assurances............................................................... 28
Section 7.13 Accounting Changes............................................................... 29
Section 7.14 No Indirect or Consequential Damages............................................. 29
|
SCHEDULES
SCHEDULE 1 List of Accounts
SCHEDULE 6.1(a)(ii) Sellers' UCC Information
SCHEDULE 6.1(a)(vii) Perfection Representations and Warranties
|
EXHIBITS
EXHIBIT A Form of Assignment
EXHIBIT B Form of Reassignment
EXHIBIT C Form of Opinion of Counsel with Respect to Additional
Accounts
|
-ii- Receivables Sale Agreement
RECEIVABLES SALE AGREEMENT, dated as of [ ], 2004 (this "Agreement"),
among GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION, a Nevada corporation, as a
Seller, TRANSAMERICA COMMERCIAL FINANCE CORPORATION, a Delaware corporation, as
a Seller, and CDF FUNDING, INC., a Delaware corporation, as Buyer ("Buyer").
In consideration of the premises and the mutual covenants hereinafter
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
"Account" means each Initial Account and each Additional Account. The
term Account includes an Additional Account only from and after its Addition
Date and includes any Removed Account only prior to its Removal Date.
"Accounting Changes" means, with respect to any Person, (a) changes in
accounting principles required by the promulgation of any rule, regulation,
pronouncement or opinion of the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants (or any successor thereto or
any agency with similar functions); (b) changes in accounting principles
concurred by such Person's certified public accountants; (c) purchase accounting
adjustments under A.P.B. 16 or 17 and EITF 88-16, and the application of the
accounting principles set forth in FASB 109, including the establishment of
reserves pursuant thereto and any subsequent reversal (in whole or in part) of
such reserves; and (d) the reversal of any reserves established as a result of
purchase accounting adjustments.
"Account Schedule" means a computer file or microfiche list or other list
containing a true and complete list of Accounts, identified by account number
(or by an alpha-numeric identifier that uniquely and objectively identifies the
applicable account number pursuant to a protocol that has been provided to
Buyer) and setting forth the receivables balance for each as of (i) the
applicable Addition Cut-Off Date, in the case of an Account Schedule relating to
Additional Accounts, (ii) the Removal Notice Date, in the case of an Account
Schedule relating to Removed Accounts or (iii) the date specified therein, in
the case of any other Account Schedule. Notwithstanding the foregoing, the
initial Account Schedule does not set forth receivables balances, and any
failure to set forth receivables balances in such a file or list shall not
impair the file's or list's effectiveness as an Account Schedule.
"Addition Cut-Off Date" means, as to any Additional Account, the date
specified as such in the related Assignment.
"Addition Date" means, as to any Additional Account, the date specified as
such in the related Assignment.
"Additional Accounts" is defined in Section 2.6(a).
Receivables Sale Agreement
"Affiliate" means, with respect to any Person, (a) each Person that,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, five percent (5%) or more of the securities having
ordinary voting power in the election of directors of such Person, (b) each
Person that controls, is controlled by or is under common control with such
Person, or (c) each of such Person's officers, directors, joint venturers and
partners. For the purposes of this definition, "control" of a Person means the
possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"Aggregate Reassignment Amount" means, for any reassignment of the
Transferred Receivables pursuant to Section 6.1(e), the aggregate outstanding
amount (comprising principal, interest and all other non-principal amounts
billed to the related Dealers) of such Transferred Receivables as of the end of
the preceding Monthly Period.
"Agreement" is defined in the preamble.
"Agreement Termination Date" is defined in Section 7.4.
"Asset Based Lending Business" means the extensions of credit made by an
Originator to Dealers in order to provide loans based on the value of certain
assets of such Dealers.
"Asset Based Lending Financing Agreement" means an asset based lending
financing agreement entered into by an Originator and a Dealer in connection
with the Asset Based Lending Business.
"Assignment" is defined in Section 2.6(c).
"Authorized Officer" means (a) with respect to any corporation or
statutory trust, the Chairman or Vice-Chairman of the Board, the President, any
Vice President, the Secretary, the Treasurer, any Assistant Secretary, any
Assistant Treasurer and each other officer or employee of such corporation or
trustee of such trust specifically authorized in resolutions of the Board of
Directors of such corporation or trustee of such trust to sign agreements,
instruments or other documents on behalf of such corporation or statutory trust
in connection with the transactions contemplated by the Related Documents, and
(b) with respect to a limited liability company, an officer or manager of such
limited liability company.
"Bankruptcy Event" means, as to any Person, any of the following events:
(a) a case or proceeding shall have been commenced against such Person seeking a
decree or order in respect of such Person (i) under any Debtor Relief Law, (ii)
appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator
(or similar official) for any such Person or for any substantial part of such
Person's assets, or (iii) ordering the winding-up or liquidation of the affairs
of any such Person; or (b) such Person shall (i) file a petition seeking relief
under any Debtor Relief Law, (ii) consent or fail to object in a timely and
appropriate manner to the institution of proceedings thereunder or to the filing
of any such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar
official) for such Person or for any substantial part of such Person's assets,
(iii) make an assignment for the benefit of creditors, or (iv) take any
corporate or statutory trust action in furtherance of any of the foregoing.
2 Receivables Sale Agreement
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which banks are required or permitted to be closed in the State of New York or
the state of Master Servicer's principal place of business (currently
Connecticut).
"Buyer" is defined in the preamble.
"Closing Date" means [ ], 2004.
"Collateral Security" means, with respect to any Receivable, (i) the
security interest, if any, granted by or on behalf of the related Dealer with
respect thereto, including a security interest in the related Products or
assets, (ii) all other security interests or liens and property subject thereto
from time to time purporting to secure payment of such Receivable, whether
pursuant to the agreement giving rise to such Receivable or otherwise, together
with all financing statements filed against a Dealer describing any collateral
securing such Receivable, (iii) all guarantees, insurance and other agreements
(including Floorplan Agreements and subordination agreements with other lenders)
or arrangements of whatever character from time to time supporting or securing
payment of such Receivable whether pursuant to the agreement giving rise to such
Receivable or otherwise, and (iv) all Records in respect of such Receivable.
"Collections" means, without duplication, all payments by or on behalf of
Dealers received in respect of the Receivables (including proceeds from the
realization upon any Collateral Security) in the form of cash, checks, wire
transfers or any other form of payment. Collections that constitute Recoveries
shall be considered to be Collections of Non-Principal Receivables.
"Credit and Collection Policies" means, with respect to a Seller, such
Seller's policies and procedures relating to the Receivables, including the
policies and procedures for determining the creditworthiness of Dealers and the
extension of credit to Dealers, and relating to the maintenance of Accounts and
collection of Receivables, as such policies and procedures may be amended from
time to time.
"Date of Processing" means, as to any transaction, the Business Day on
which the transaction is first recorded on Master Servicer's computer file of
accounts (without regard to the effective date of such recordation).
"Dealer" means a Person engaged generally in the business of purchasing
consumer or commercial goods from a manufacturer or distributor thereof and
holding such goods for sale or lease in the ordinary course of business or a
Person engaged generally in the business of manufacturing or distributing
consumer or commercial goods for sale to Dealers in the ordinary course of
business.
"Dealer Overconcentration" shall be determined on each Determination Date.
A Dealer Overconcentration shall exist with respect to a Dealer (an
"Overconcentrated Dealer") if the aggregate Outstanding Balance of the Principal
Receivables (that are Transferred Receivables) owed by such Dealer exceeds the
applicable Dealer Concentration Limit. "Dealer Concentration Limit" is a dollar
amount calculated as a percentage (the "Concentration Limit Percentage") of the
Outstanding Balance of Principal Receivables (that are Transferred Receivables)
as of the end of each Monthly Period. If the Dealer is among the [ ] Dealers
owing the largest amount of
3 Receivables Sale Agreement
Principal Receivables as of the end of a Monthly Period (the "Top [ ] Dealers"),
the Concentration Limit Percentage shall equal [ ] percent ([ ]%). If the Dealer
is not among the Top [ ] Dealers, the Concentration Limit Percentage shall equal
[ ] percent ([ ]%). For purposes of the definitions of Dealer Overconcentration,
Overconcentrated Dealer and Top [ ] Dealers, a Dealer and all of its Affiliates
that are Dealers shall be considered to be a single Dealer.
"Dealer Repurchase Option" means, with respect to a Dealer that has sold
Receivables to an Originator, the right of such Dealer (if any) to repurchase
such Receivables from such Originator.
"Debtor Relief Laws" means Title 11 of the United States Code and all
other applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, suspension of payments,
readjustment of debt, marshalling of assets or similar debtor relief laws of the
United States, any state or any foreign country from time to time in effect,
affecting the rights of creditors generally.
"Defaulted Receivables" on any Determination Date means all Receivables
(other than Ineligible Receivables and any Designated Ineligible Receivables) in
an Account which are charged off as uncollectible on or prior to such
Determination Date in respect of the immediately preceding Monthly Period in
accordance with the Sellers' customary and usual servicing procedures for
servicing Dealer receivables comparable to the Receivables which have not been
sold to third parties.
"Designated Ineligible Receivable" means, without duplication, (i) any
Receivable that arises in an Eligible Account but was not an Eligible Receivable
at the time of its transfer to Buyer; (ii) any Receivable that, at the time of
its transfer to Buyer has been SAU or NSF for more than thirty (30) days; and
(iii) those Receivables, the aggregate Outstanding Balance of which, at the time
of transfer of each such Receivable to Buyer, have been SAU or NSF for a period
of one (1) to thirty (30) days but only to the extent that such Receivables'
aggregate Outstanding Balance exceeds [ ] percent ([ ]%) of the Outstanding
Balance of the Principal Receivables owned by the Issuer at the end of such
Monthly Period.
"Designated Participation Interest" is defined in Section 2.6(b).
"Determination Date" means the second Business Day preceding each Payment
Date.
["Discount Factor" is defined in the Second Tier Agreement.]
"Eligible Account" means a revolving credit arrangement payable in U.S.
dollars between an Originator and a Dealer, which arrangement, as of the date of
determination with respect thereto: (a) is in favor of a Dealer (i) which is
doing business in the United States, (ii) which has not been identified by a
Seller as being the subject of any voluntary or involuntary bankruptcy
proceeding or being in a voluntary or involuntary liquidation, and (iii) in
which neither GE Capital nor any Affiliate thereof has an equity investment; (b)
is serviced by a Seller or an Affiliate thereof; and (c) arises under a
Financing Agreement that is in full force and effect.
"Eligible Receivable" means a Receivable:
4 Receivables Sale Agreement
(a) that has arisen under an Eligible Account;
(b) that was created in compliance with the Credit and Collection
Policies and all Requirements of Law applicable to the related Originator,
other than those Requirements of Law the failure to comply with would not
have a material adverse effect on Buyer or any of its creditors or
assigns, and pursuant to a Financing Agreement that complies with all
Requirements of Law applicable to the related Originator, other than those
Requirements of Law the failure to comply with would not have a material
adverse effect on Buyer or any of its creditors or assigns;
(c) with respect to which all consents, licenses, approvals or
authorizations of, or registrations with, any Governmental Authority
required to be obtained or made by the related Originator in connection
with the creation of such Receivable or the execution, delivery and
performance by the related Originator of the related Financing Agreement,
have been duly obtained or made and are in full force and effect as of the
date of creation of such Receivable, but failure to comply with this
clause (c) shall not cause a Receivable not to be an Eligible Receivable
if, and to the extent that, the failure to so obtain or make any such
consent, license, approval, authorization or registration would not have a
material adverse effect on Buyer or its assigns;
(d) as to which, at the time of its transfer to Buyer, the
applicable Seller or Buyer will have good and marketable title free and
clear of all Liens (other than Permitted Encumbrances);
(e) that is the subject of a valid transfer and assignment from
the applicable Seller to Buyer of all Seller's right, title and interest
therein;
(f) that at and after the time of transfer to Buyer is the legal,
valid and binding payment obligation of the Dealer thereof, legally
enforceable against such Dealer in accordance with its terms, except as
enforceability may be limited by applicable Debtor Relief Laws, and by
general principles of equity (whether considered in a suit at law or in
equity);
(g) that constitutes an "account", "chattel paper" or "general
intangible" within the meaning of UCC Section 9-102;
(h) as to which, at the time of its transfer to Buyer, the
applicable Seller has not taken any action which, or failed to take any
action the omission of which, would, at the time of transfer to Buyer,
impair Buyer's rights therein;
(i) that, at the time of its transfer to Buyer, has not been
waived or modified except as permitted by this Agreement;
(j) that, at the time of its transfer to Buyer, is not subject to
any right of rescission, setoff, counterclaim or any other defense of the
Dealer (including the defense of usury), other than defenses arising out
of Debtor Relief Laws and except as the enforceability of such Receivable
may be limited by general principles of equity (whether
5 Receivables Sale Agreement
considered in a suit at law or equity) or as to which the applicable
Seller makes an adjustment pursuant to Section 2.5;
(k) as to which, at the time of its transfer to Buyer, the
applicable Seller has satisfied all obligations to be fulfilled by such
Seller under the related Financing Agreement as of the time it is
transferred to Buyer;
(l) which at the time of transfer to Buyer is secured, to the
extent required by the related Financing Agreement, by, inter alia, a
first priority perfected security interest (whether by prior filing,
purchase money security interest, subordination agreement from prior
filers or otherwise) in the related Product or other assets financed by
the related advance (except that such security interest need not be a
first priority security interest in the case of any Receivable if Buyer
consents with respect thereto or if the requirement therefor has been
waived in accordance with the Credit and Collection Policies); and
(m) that does not cause the Overconcentration Amount to exceed
zero.
"Financing Agreement" means a Wholesale Financing Agreement or Asset Based
Lending Financing Agreement.
"Floorplan Agreement" means an agreement entered into by an Originator and
a Manufacturer establishing certain terms and conditions for the financing of
such Manufacturer's Dealers by such Originator, which may include such
Manufacturer's agreement, among other matters, to repurchase from, or remarket
for, such Originator Products sold by such Manufacturer to any of its Dealers
and financed by such Originator under a Wholesale Financing Agreement if such
Originator acquires possession of such Products because of a default by such
Dealer under such Wholesale Financing Agreement, whether by repossession,
voluntary surrender or other circumstances.
"Floorplan Business" means the extensions of credit made by an Originator
to Dealers in order to finance Products purchased by Dealers from Manufacturers
for sale or lease by such Dealers.
"GAAP" means generally accepted accounting principles in the United States
of America in effect from time to time.
"GE Capital" means General Electric Capital Corporation, a Delaware
corporation.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any agency, department or other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Indenture" means the Master Indenture dated as of [ ], 2004 between the
Issuer and Wilmington Trust Company, as indenture trustee.
"Indenture Supplement" means a supplement to the Indenture executed and
delivered pursuant to the Indenture.
6 Receivables Sale Agreement
"Ineligible Account" means an Account that at the time of determination is
not an Eligible Account.
"Ineligible Receivable" is defined in Section 6.1(c).
"Initial Account" means each individual revolving credit arrangement
established by an Originator with a Dealer which was identified in the Account
Schedule delivered in connection with the execution and delivery of this
Agreement.
"Insurance Proceeds" with respect to an Account means any amounts received
pursuant to any policy of insurance which are required to be paid to an
Originator pursuant to a Wholesale Financing Agreement or Asset Based Lending
Financing Agreement.
"Issuer" means GE Dealer Floorplan Master Note Trust, a Delaware statutory
trust.
"Lien" means any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any lease
or title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of, or agreement to
give, any financing statement perfecting a security interest under the UCC or
comparable law of any jurisdiction).
"Litigation" means, with respect to any Person, any action, claim,
lawsuit, demand, investigation or proceeding pending or threatened against such
Person before any court, board, commission, agency or instrumentality of any
federal, state, local or foreign government or of any agency or subdivision
thereof or before any arbitrator or panel of arbitrators.
"Manufacturer" means a Person engaged generally in the business of
manufacturing or distributing Products for sale or lease to Dealers in the
ordinary course of business.
"Manufacturer Overconcentration" means, on any Determination Date, with
respect to all Accounts covered by a Floorplan Agreement with the same
Manufacturer as obligor, the excess, if any, of (a) the aggregate Outstanding
Balance of Principal Receivables (that are Transferred Receivables) in such
Accounts on the last day of the Monthly Period immediately preceding such
Determination Date that are covered by such Floorplan Agreement over (b) [ ]
percent ([ ]%) of the Outstanding Balance of Principal Receivables (that are
Transferred Receivables) on the last day of such Monthly Period (in the case of
each of the Manufacturers that is among the [ ] Manufacturers which are parties
to Floorplan Agreements covering the largest aggregate Outstanding Balance of
Principal Receivables that are Transferred Receivables), or [ ] percent ([ ]%)
of the Outstanding Balance of Principal Receivables (that are Transferred
Receivables) on the last day of such Monthly Period (in the case of
Manufacturers other than such top [ ] Manufacturers) or, in each case, if Buyer
consents, such larger percentage of the Outstanding Balance of Principal
Receivables as is stated in the notice from Buyer providing its consent.
"Master Servicer" means GE Capital, in its capacity as master servicer
under the Servicing Agreement, or any other Person designated as a successor
master servicer pursuant to the Servicing Agreement.
7 Receivables Sale Agreement
"Material Adverse Effect" means, with respect to a Seller, a material
adverse effect on (a) the ability of such Seller to perform any of its
obligations under the Related Documents in accordance with the terms thereof,
(b) the validity or enforceability of any Related Document or the rights and
remedies of Buyer under any Related Document with respect to such Seller, or (c)
the Transferred Receivables (including the collectibility of the Transferred
Receivables and the security interests and other rights securing and supporting
the payment of the Transferred Receivables), the Financing Agreements therefor
or the ownership interests or Liens of any Seller or Buyer thereon or the
priority of such interests or Liens.
"Monthly Period" means a calendar month.
"Non-Principal Collections" means the sum of (a) Collections of interest
and all other non-principal charges (including insurance service fees and
handling fees) on the Receivables, [(b) the product of (i) principal payments on
the Receivables and (ii) the Discount Factor,] and (c) all Recoveries.
"Non-Principal Receivables" with respect to any Account means all amounts
billed to the related Dealer in respect of interest and all other non-principal
charges.
"NSF" means, with respect to a Receivable, that a check in payment of such
Receivable has been returned because of insufficient funds and has not
thereafter been paid.
"Officer's Certificate" means, with respect to any Person, a certificate
signed by an Authorized Officer of such Person.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for, or an employee of, the Person providing the opinion.
"Originator" means a Seller or any other originator so designated pursuant
to Section 2.9.
"Originator Guaranty" means the Originator Performance Guaranty dated as
of [ ], 2004 made by GE Capital.
"Outstanding Balance" means, with respect to any Principal Receivable, the
outstanding amount of such Principal Receivable; provided, that the Outstanding
Balance of a Defaulted Receivable shall equal zero.
"Overconcentration Amount" means, on any Determination Date, the sum of
the Dealer Overconcentration, the Manufacturer Overconcentration, the Product
Line Overconcentration and the Unsecured Receivable Overconcentration on such
Determination Date.
"Participation Agreement" means an agreement between an Originator and a
lender pursuant to which such Originator conveys to such lender an undivided
interest in certain receivables that is pari passu in all respects (other than
nonsubordinated interest strips and fees) with the undivided interest retained
by such Originator.
"Participation Interest" means the undivided interest, created pursuant to
a Participation Agreement, in a receivable in which a Receivable represents the
remaining undivided interest.
8 Receivables Sale Agreement
"Payment Date" means, except as otherwise specified in any Indenture
Supplement for the Series relating thereto, the twentieth (20th) day of each
calendar month, or if the twentieth (20th) day is not a Business Day, the next
Business Day.
"Permitted Encumbrances" means the following: (a) Liens for taxes or
assessments or other governmental charges not yet due and payable; (b) inchoate
and unperfected workers', mechanics', suppliers' or similar Liens arising in the
ordinary course of business; (c) presently existing or hereinafter created Liens
in favor of, or created by, Buyer; (d) any Lien created or permitted by any
Related Document; (e) any Lien created by any Participation Agreement; (f) any
security interests in assets that are subordinate to the security interests
securing the related Receivables; and (g) any Dealer Repurchase Option that has
not been exercised by the applicable Dealer.
"Person" means any individual, sole proprietorship, partnership, joint
venture, unincorporated organization, trust (including a business trust),
association, corporation, limited liability company, institution, public benefit
corporation, joint stock company, Governmental Authority or any other entity of
whatever nature.
"Principal Collections" means Collections other than Non-Principal
Collections. Amounts paid by a Seller pursuant to Section 2.5 shall be deemed to
be Principal Collections.
"Principal Receivable" with respect to an Account means amounts shown on
the Seller's records as Receivables (other than such amounts which represent
Non-Principal Receivables) payable by the related Dealer.
"Product Line Overconcentration" means, on any Determination Date, the
excess, if any, of (a) the aggregate Outstanding Balance of Principal
Receivables (that are Transferred Receivables) that represent financing for a
single Product line (according to the applicable Seller's classification system)
on the last day of the Monthly Period immediately preceding such Determination
Date over (b)(i) [ ] percent ([ ]%) of the Outstanding Balance of Principal
Receivables (that are Transferred Receivables) on the last day of such Monthly
Period if such Product line is not recreational vehicles or boats or boat
motors, (ii) [ ] percent ([ ]%) of that Outstanding Balance of Principal
Receivables (that are Transferred Receivables) if such Product line is
recreational vehicles, or (iii) [ ] percent ([ ]%) of that Outstanding Balance
of Principal Receivables (that are Transferred Receivables) if such Product line
is boats or boat motors or, in the case of clause (i), (ii) or (iii), if Buyer
consents, such larger percentage of the Outstanding Balance of Principal
Receivables as is stated in the applicable notice from Buyer providing its
consent.
"Products" means the commercial and consumer goods financed by an
Originator for Dealers.
"Purchase Date" means the Closing Date and, thereafter, each Business Day.
"Purchase Price" is defined in Section 2.4(a).
"Reassignment" is defined in Section 2.7(a).
9 Receivables Sale Agreement
"Receivable" means, with respect to an Account, all amounts payable
(including interest, finance charges and other charges), and the obligation to
pay such amounts, by the related Dealer from time to time in respect of advances
made by an Originator to or on behalf of such Dealer in connection with the
Floorplan Business or the Asset Based Lending Business, as the case may be,
[together with the group of writings evidencing such amounts and the security
interest created in connection therewith and all of the rights, remedies, powers
and privileges thereunder (including under the related Financing Agreement)];
provided, that if a Participation Interest has been created in respect of such
Account, whether before or after such Account has been designated as an Account,
the amounts so payable by the related Dealer that are allocable to such
Participation Interest shall not be part of the "Receivables" in respect of such
Account. A Receivable that, prior to its transfer to Buyer, was subject to a
participation from an Originator in favor of another Originator shall be
considered a Receivable.
"Records" means, with respect to any Receivables, all Financing Agreements
and other documents, books, records and other information (including computer
programs, tapes, disks, data processing software and related property and
rights) relating to such Receivable and the related Dealer.
"Recoveries" on any date means all amounts received, including Insurance
Proceeds, during the Monthly Period immediately preceding such date with respect
to Receivables which have previously become Defaulted Receivables.
"Related Documents" means this Agreement, the Second Tier Agreement, the
Trust Agreement, the Servicing Agreement, the Indenture, any Indenture
Supplement and all other pledges, powers of attorney, consents, assignments,
contracts, notices, and all other written matter whether heretofore, now or
hereafter executed by or on behalf of any Person, or any employee of any Person,
and delivered in connection with any of the foregoing or the transactions
contemplated thereby.
"Removed Account" means an Account that is removed from the Account
Schedule in accordance with Section 2.7.
"Removal Date" is defined in Section 2.7(a).
"Removal Notice Date" is defined in Section 2.7(a).
"Requirements of Law" means, as to any Person, the certificate of
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether federal, state or local.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw -
Hill Companies, Inc.
"SAU" means, with respect to a Receivable, that if such Receivable was
originally secured by a security interest in a Product, such Product has been
sold and such Receivable is not paid in full.
10 Receivables Sale Agreement
"Second Tier Agreement" means the Receivables Purchase and Contribution
Agreement dated as of [ ], 2004, between Buyer and Issuer.
"Seller" means GE Commercial Distribution Finance Corporation,
Transamerica Commercial Finance Corporation or any additional Person designated
as a "Seller" in accordance with Section 2.8.
"Seller Termination Date" is defined in Section 7.4.
"Series" means a series of notes issued under the Indenture.
"Servicing Agreement" means the Servicing Agreement dated as of [ ], 2004,
between Master Servicer and the Issuer.
"Sub-Servicer" means any Person with whom Master Servicer enters into a
Sub-Servicing Agreement.
"Sub-Servicing Agreement" means any written contract entered into between
Master Servicer and any Sub-Servicer relating to the servicing, administration
or collection of any Transferred Receivables.
"Subsidiary" means, with respect to any Person, any corporation or other
entity (a) of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other Persons
performing similar functions are at the time directly or indirectly owned by
such Person or (b) that is directly or indirectly controlled by such Person
within the meaning of control under Section 15 of the Securities Act of 1933.
"Transfer Date" means, with respect to a Transferred Receivable, the date
on which Buyer acquires such Transferred Receivable from a Seller pursuant to
Section 2.1 or any Assignment.
"Transferred Assets" is defined in Section 2.1(a).
"Transferred Receivable" means any Receivable purchased by Buyer from a
Seller pursuant to this Agreement or any Assignment, including Principal
Receivables and Non-Principal Receivables that exist at the time of purchase of
any Principal Receivables in the same Account or that arise in an Account after
the date of purchase of Principal Receivables in the Account. However,
Receivables that are repurchased by a Seller pursuant to this Agreement or
purchased by Master Servicer pursuant to the Servicing Agreement shall cease to
be considered "Transferred Receivables" from the date of such purchase.
"Trust Agreement" means the Amended and Restated Trust Agreement dated as
of [ ], 2004, between Buyer and The Bank of New York (Delaware), as trustee.
"UCC" means, with respect to any jurisdiction, the Uniform Commercial Code
as the same may, from time to time, be enacted and in effect in such
jurisdiction.
11 Receivables Sale Agreement
"United States" means the United States of America, together with its
territories and possessions.
"Unsecured Receivable Business" means the unsecured extensions of credit
made by a Seller to Dealers.
"Unsecured Receivable Financing Agreement" means an unsecured financing
agreement entered into by a Seller with a Dealer in connection with its
Unsecured Receivable Business with such Dealer, as amended or modified from time
to time.
"Unsecured Receivable Overconcentration" means, on any Determination Date,
the excess, if any, of (a) the Outstanding Balance of Principal Receivables
(that are Transferred Receivables) in Accounts created pursuant to Unsecured
Receivable Financing Agreements as of the last day of the Monthly Period
immediately preceding such Determination Date over (b) [ ] percent ([ ]%) of the
Outstanding Balance of Principal Receivables (that are Transferred Receivables)
on the last day of such Monthly Period or, if Buyer consents, such larger
percentage of the Outstanding Balance of Principal Receivables as is stated in
the notice from Buyer providing its consent.
"Unsecured Receivables" means Receivables arising from the Unsecured
Receivable Business.
"Wholesale Financing Agreement" means a wholesale financing agreement
entered into by an Originator and a Dealer in order to finance Products
purchased by such Dealer from a Manufacturer.
Section 1.2 Other Interpretive Matters. All terms defined directly or by
incorporation in this Agreement shall have the defined meanings when used in any
certificate or other document delivered pursuant thereto unless otherwise
defined therein. For purposes of this Agreement and all related certificates and
other documents, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in this
Agreement to the extent not defined, shall have the respective meanings given to
them under GAAP; (b) unless otherwise provided; references to any month, quarter
or year refer to a calendar month, quarter or year; (c) terms defined in Article
9 of the UCC as in effect in the applicable jurisdiction and not otherwise
defined in this Agreement are used as defined in that Article; (d) references to
any amount as on deposit or outstanding on any particular date means such amount
at the close of business on such day; (e) the words "hereof," "herein" and
"hereunder" and words of similar import refer to this Agreement (or the
certificate or other document in which they are used) as a whole and not to any
particular provision of this Agreement (or such certificate or document); (f)
references to any Section, Schedule or Exhibit are references to Sections,
Schedules and Exhibits in or to this Agreement (or the certificate or other
document in which the reference is made), and references to any paragraph,
subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or
definition; (g) the term "including" means "including without limitation"; (h)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (i) references to
any agreement refer to that agreement as from time to time amended, restated or
12 Receivables Sale Agreement
supplemented or as the terms of such agreement are waived or modified in
accordance with its terms; and (j) references to any Person include that
Person's successors and permitted assigns.
ARTICLE II.
SALES
Section 2.1 Sales.
(a) By execution of this Agreement, each Seller does hereby transfer,
assign, set over and otherwise convey to Buyer, without recourse except as
provided herein, all its right, title and interest in, to and under, the
following (the "Transferred Assets"): (i) the Receivables existing at the
opening of business on the Closing Date, and thereafter created from time to
time until the Agreement Termination Date (or, if applicable, the Seller
Termination Date relating to such Seller), together with the Collateral Security
and Collections with respect thereto and related Recoveries, in each case
together with all monies due or to become due and all amounts received or
receivable with respect thereto and Insurance Proceeds relating thereto, (ii)
without limiting the generality of the foregoing or the following, all of such
Seller's rights to receive payments from any Dealer in respect of such
Receivables and (iii) all proceeds of all of the foregoing. The foregoing does
not constitute and is not intended to result in the creation or assumption by
Buyer of any obligation of any Seller or any other Person in connection with the
Accounts or the Transferred Receivables or under any agreement or instrument
relating thereto, including any obligation under the Financing Agreements, the
Floorplan Agreements or any Participation Agreement or any obligation to any
Dealer or any Manufacturer. The foregoing conveyance shall be effective (x) on
the Closing Date, as to all Transferred Assets then existing, and (y) on each
Purchase Date, as to all Transferred Assets arising since the prior Purchase
Date.
(b) Each Seller agrees, at its own expense, (i) on or prior to (x) the
Closing Date, in the case of the Initial Accounts, (y) the applicable Addition
Date, in the case of Additional Accounts, and (z) the applicable Removal Date,
in the case of Removed Accounts, to indicate, or cause to be indicated, in the
appropriate computer files that Receivables created (or reassigned, if
applicable, in the case of Removed Accounts) in connection with the Accounts
have been conveyed to Buyer pursuant to this Agreement (or conveyed to a Seller
or its designee, if applicable, in accordance with Section 2.7, in the case of
Removed Accounts) by including, or causing to be included, in such computer
files a code so identifying each such Account (or, in the case of Removed
Accounts, deleting, or causing to be deleted, such code thereafter) and (ii) on
or prior to the date referred to in clauses (i)(x), (y) or (z), as applicable,
to deliver to Buyer an Account Schedule. The initial such Account Schedule, as
supplemented from time to time to reflect Additional Accounts and Removed
Accounts, shall be marked as Schedule 1 to this Agreement and is hereby
incorporated into and made a part of this Agreement. Once the code referenced in
clause (i) of this paragraph has been included with respect to any Account, each
Seller further agrees not to permit such code to be altered during the remaining
term of this Agreement unless and until (x) such Account becomes a Removed
Account, or (y) such Seller shall have delivered to Buyer at least thirty (30)
days' prior written notice of its intention to do so and has taken such action
as is necessary or advisable to cause the interest of Buyer in the Transferred
Receivables to continue to be perfected with the priority required by this
Agreement.
13 Receivables Sale Agreement
(c) Notwithstanding the foregoing, a Seller shall not sell a Receivable
to Buyer if the Dealer relating to such Receivable has notified such Seller that
such Dealer intends to exercise its Dealer Repurchase Option with respect to
such Receivable. Each Seller shall manage its relationships with its Dealers in
such a manner as to minimize the circumstances under which such Dealers would be
permitted to exercise Dealer Repurchase Options.
Section 2.2 Acceptance by Buyer.
(a) Buyer hereby acknowledges its acceptance of all right, title and
interest to the property, now existing and hereafter created, conveyed to Buyer
pursuant to Section 2.1. Buyer shall maintain a copy of Schedule 1, as delivered
to it from time to time.
(b) Buyer hereby agrees not to disclose to any Person any account
numbers or other information contained in the Account Schedule marked as
Schedule 1 and delivered to Buyer, from time to time, except (i) to Master
Servicer, any Sub-Servicer or as required by a Requirement of Law applicable to
Buyer, (ii) in connection with the performance of Buyer's duties hereunder,
(iii) to the indenture trustee under the Indenture in connection with its duties
or (iv) to bona fide creditors or potential creditors of Master Servicer or a
Seller for the limited purpose of enabling any such creditor to identify
Transferred Receivables or Accounts subject to this Agreement. Buyer agrees to
take such measures as shall be reasonably requested by a Seller to protect and
maintain the security and confidentiality of such information and, in connection
therewith, shall allow each Seller or its duly authorized representatives to
inspect Buyer's security and confidentiality arrangements from time to time
during normal business hours upon prior written notice. Buyer shall promptly
notify each Seller of any request received by Buyer to disclose information of
the type described in this Section 2.2(b), which notice shall in any event be
provided no later than five (5) Business Days prior to disclosure of any such
information unless Buyer is compelled pursuant to a Requirement of Law to
disclose such information prior to the date that is five (5) Business Days after
the giving of such notice.
Section 2.3 Characterization of Transfers. The parties hereto intend that
each transfer of the Transferred Assets shall constitute a sale by each Seller
to Buyer and not a loan by Buyer to a Seller secured by the Transferred Assets.
If, contrary to the intent of the parties hereto, a court of competent
jurisdiction determines that any transaction provided for herein constitutes a
loan and not a sale of the Transferred Assets, then this Agreement shall
constitute a security agreement under applicable law and each Seller shall be
deemed to have granted, and each Seller hereby grants, to Buyer a security
interest in and to all of such Seller's right, title and interest in, to and
under the Transferred Assets.
Section 2.4 Purchase Price.
(a) The purchase price for the Transferred Receivables and the other
Transferred Assets related thereto shall equal the fair market value of such
Transferred Receivables as agreed upon by Buyer and the applicable Seller prior
to such sale (such amount for any Transferred Assets, the "Purchase Price").
(b) The Purchase Price for any Transferred Assets sold by a Seller shall
be payable in full in cash on each Purchase Date or less frequently if so agreed
between Buyer and Seller;
14 Receivables Sale Agreement
provided, however, that Buyer may, with respect to any sale, offset against such
Purchase Price any amounts owed by the applicable Seller to Buyer hereunder and
which remain unpaid. On each such Purchase Date or other date set by the parties
for payment, Buyer shall, upon satisfaction of the applicable conditions set
forth in Article III, make available to the applicable Seller the Purchase Price
for the applicable Transferred Assets in same day funds.
Section 2.5 Adjustments. If on any day the outstanding amount of any
Principal Receivable is reduced because of a rebate, refund, unauthorized charge
or billing error to a Dealer, or because such Principal Receivable was created
in respect of merchandise which was refused or returned by a Dealer, or if the
outstanding amount of any Principal Receivable is otherwise reduced other than
on account of Collections thereof or such amount being charged-off as
uncollectible, then the applicable Seller shall compensate Buyer for such
reduction in the outstanding amount of such Principal Receivable as provided
below. Any adjustment required pursuant to the preceding sentence shall be made
not later than the second Business Day after the Date of Processing for the
event giving rise to such adjustment or less frequently if so agreed between
Buyer and the applicable Seller. The amount of each such reduction shall be
deducted from the amount of the Purchase Price payable by Buyer to such Seller
on the Purchase Date that coincides with or next follows the date of the
adjustment, and such Seller shall pay Buyer on that Purchase Date any excess of
the aggregate amount of such reductions over the aggregate Purchase Price
otherwise payable to such Seller on that Purchase Date. Notwithstanding the
foregoing, on any Purchase Date the aggregate amount of such reductions shall be
paid gross by the applicable Seller to Buyer, without netting against the
Purchase Price, to the extent that Buyer informs such Seller that Buyer requires
funds to make payments on account of such reductions under any of the Related
Documents.
Section 2.6 Addition of Accounts.
(a) Additional Accounts. From time to time, a Seller may designate
additional Eligible Accounts ("Additional Accounts") to be included as Accounts.
(b) Designated Participation Interests. In lieu of, or in addition to,
designating Additional Accounts as contemplated by subsection (a) above, a
Seller may convey to Buyer participations or trust certificates representing
undivided or beneficial interests in a pool of assets primarily consisting of
receivables arising under dealer floorplan loan credit arrangements owned by
such Seller or any of its Affiliates and collections thereon ("Designated
Participation Interests"). Each Seller and Buyer will enter into a supplement to
this Agreement relating to the conveyance of any Designated Participation
Interest. Any conveyance of a Designated Participation Interest under this
subsection (b) shall occur only upon satisfaction of the conditions for
conveyances of Designated Participation Interests under [Section 2.6(c)] of the
Second Tier Agreement.
(c) Conditions for Additions of Additional Accounts. Any sale of
Receivables from Additional Accounts shall occur only upon satisfaction of the
following conditions (to the extent provided below):
(i) on or before the Addition Date, the applicable Seller shall
have delivered to Buyer, (x) a written assignment in substantially the
form of Exhibit A (the
15 Receivables Sale Agreement
"Assignment"), and such Seller shall indicate in its computer files that
the Receivables created in connection with the Additional Accounts have
been transferred to Buyer, and (y) an Account Schedule reflecting the
addition of such Additional Accounts (which Account Schedule shall be
attached as a schedule to such Assignment);
(ii) such Seller shall deliver an Opinion of Counsel with respect
to the Receivables in the Additional Accounts to Buyer (in such numbers
and with such additional addressees as Buyer may reasonably request)
substantially in the form of Exhibit C (with appropriate modifications);
(iii) such Seller shall not make more than one such designation per
Dealer in any one Monthly Period; and
(iv) Buyer shall have determined that all requirements relating to
the designation of such Additional Accounts imposed by Buyer under the
Second Tier Agreement have been satisfied.
Section 2.7 Removal of Accounts.
(a) From time to time, but not more frequently than once during each
Monthly Period for any Dealer, a Seller may request (which request Buyer may
deny): (i) the removal of one or more Accounts from the Account Schedule, and
(ii) if any such Account was not an Eligible Account at the time such Account
was originally added to the Account Schedule, the reassignment to such Seller or
its designee of all Buyer's right, title and interest in, to and under (A) the
Transferred Receivables then existing and thereafter created in such Account,
(B) the Collateral Security, Collections and Recoveries with respect thereto,
and (C) all monies due or to become due and all amounts received or receivable
with respect thereto and Insurance Proceeds relating thereto. Any such removal
and reassignment shall be subject to the satisfaction of the following
conditions:
(i) on or before the tenth Business Day immediately preceding the
Removal Date (the "Removal Notice Date"), the applicable Seller shall have
given Buyer written notice of such request and specifying the date for
removal of the proposed Removed Accounts (the "Removal Date");
(ii) Buyer shall have delivered its written consent for such
removal to such Seller;
(iii) on or prior to the Removal Date, such Seller shall have
delivered to Buyer a schedule listing the proposed Removed Accounts and a
schedule listing the Accounts that are not proposed to be Removed Accounts
(which schedules shall be attached as schedules to such Reassignment); and
(iv) such Seller shall have delivered to Buyer an Officer's
Certificate, dated as of the Removal Date, to the effect that (i) no
selection procedure believed by such Seller to be materially adverse to
the interest of Buyer or any of its creditors has been used in removing
Removed Accounts; and (ii) Accounts (or administratively convenient groups
of Accounts) were chosen for removal on a random basis or another basis
not involving
16 Receivables Sale Agreement
adverse selection that such Seller believes is consistent with achieving
derecognition of the Transferred Receivables under GAAP.
Upon satisfaction of the above conditions (and subject to receipt by Buyer
of the reassignment price agreed upon between Buyer and the applicable Seller):
(i) Buyer shall execute and deliver to the applicable Seller or its designee a
written reassignment in substantially the form of Exhibit B (the
"Reassignment"); (ii) the Account Schedule shall be deemed to have been amended
to remove such Removed Accounts; and (iii) if such Removed Accounts were not
Eligible Accounts at the time such Accounts were originally designated as
Accounts, Buyer shall, without further action, be deemed to transfer, assign,
set over and otherwise convey to Seller or its designee, effective as of the
Removal Date, without recourse, representation or warranty, all the right, title
and interest of Buyer in and to the Transferred Receivables arising in such
Removed Accounts, the Collateral Security and Collections and Recoveries with
respect thereto, and all monies due or to become due and all amounts received or
receivable with respect thereto and Insurance Proceeds relating thereto and all
proceeds of the foregoing). In addition, Buyer shall execute such other
documents and instruments of transfer or assignment and take such other actions
as shall reasonably be requested by Seller to effect the conveyance of
Transferred Receivables pursuant to clause (iii) of the previous sentence.
Section 2.8 Additional Sellers. A Seller may designate additional or
substitute Persons to be included as Sellers by an amendment to this Agreement
upon Buyer's consent (without the consent of any other party hereto), which
consent Buyer covenants to grant if Buyer is permitted to consent to such
designation under the Second Tier Agreement.
Section 2.9 Additional Originators. A Seller may designate additional
Persons as Originators by an amendment to this Agreement upon Buyer's consent
(without the consent of any other party hereto), which consent Buyer covenants
to grant if Buyer is permitted to consent to such designation under the Second
Tier Agreement.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions to Initial Transfer. The initial sale or conveyance
hereunder shall be subject to satisfaction of each of the following conditions
precedent (any one or more of which may be waived in writing by Buyer) as of the
Closing Date:
(a) Documents. This Agreement or counterparts hereof shall have been
duly executed by, and delivered to, the initial Sellers and Buyer, and Buyer
shall have received such documents, instruments, agreements and legal opinions
as Buyer shall reasonably request in connection with the transactions
contemplated by this Agreement, each in form and substance reasonably
satisfactory to Buyer.
(b) Governmental Approvals. Buyer shall have received satisfactory
evidence that the initial Sellers have obtained all consents and approvals of
all Persons, including all requisite Governmental Authorities, if any, required
for the initial Sellers to execute, deliver and perform this Agreement and to
consummate the transactions contemplated hereby.
17 Receivables Sale Agreement
(c) Compliance with Laws. Each initial Seller shall be in compliance
with all applicable foreign, federal, state and local laws and regulations,
except to the extent that the failure to so comply, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
Section 3.2 Conditions to all Transfers. Each sale by a Seller hereunder
(including the initial sale) shall be subject to satisfaction of the following
further conditions precedent (any one or more of which, except clause (b) below,
may be waived in writing by Buyer) as of the Transfer Date therefor:
(a) the representations and warranties of such Seller contained herein
or in any other Related Document required to be made on such Transfer Date shall
be true and correct in all material respects as of such Transfer Date, both
before and after giving effect to such sale; and
(b) such Seller shall be in compliance in all material respects with
each of its covenants and other agreements set forth herein.
The consummation by a Seller of the sale, as applicable, of Transferred Assets
on any Transfer Date shall be deemed to constitute, as of any such Transfer
Date, a representation and warranty by such Seller that the conditions in
clauses (a) and (b) of this Section 3.2 have been satisfied as of such Transfer
Date.
ARTICLE IV
OTHER MATTERS RELATING TO SELLERS
Section 4.1 Merger or Consolidation of, or Assumption of the Obligations
of, Sellers, etc.
(a) A Seller shall not consolidate with or merge into any other Person
or convey or transfer its properties and assets substantially as an entirety
to any Person unless:
(i) the Person formed by such consolidation or into which such
Seller is merged or the Person which acquires by conveyance or transfer
the properties and assets of such Seller substantially as an entirety
shall be, if such Seller is not the surviving entity, an entity organized
and existing under the laws of the United States of America or any State
or the District of Columbia, and, if such Seller is not the surviving
entity, such entity shall expressly assume, by an agreement supplemental
hereto, executed and delivered to Buyer, in form reasonably satisfactory
to Buyer, the performance of every covenant and obligation of such Seller
hereunder;
(ii) such Seller has delivered to Buyer (A) an Officer's
Certificate stating that such consolidation, merger, conveyance or
transfer and such supplemental agreement comply with this Section and that
all conditions precedent herein provided for relating to such transaction
have been complied with, and (B) an Opinion of Counsel to the effect that
such supplemental agreement is a valid and binding obligation of such
surviving entity enforceable against such surviving entity in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization,
18 Receivables Sale Agreement
moratorium or other similar laws affecting creditors' rights generally
from time to time in effect and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at
law or in equity);
(iii) if such Seller is not the surviving entity, (A) the surviving
entity shall file a new UCC financing statement with respect to the
interest of Buyer in the Transferred Assets, if any, and (B) GE Capital
confirms in writing to Buyer that the Originator Guaranty applies to the
surviving entity; and
(iv) prior written notice shall have been delivered to Buyer with
respect to such merger, conveyance or transfer.
(b) This Section 4.1 shall not be construed to prohibit or in any way
limit a Seller's ability to effectuate any consolidation or merger pursuant to
which such Seller would be the surviving entity.
(c) The obligations of a Seller hereunder shall not be assignable nor
shall any Person succeed to the obligations of a Seller hereunder except in each
case in accordance with (i) the provisions of the foregoing paragraphs, (ii)
Section 2.8 or (iii) conveyances, mergers, consolidations, assumptions, sales or
transfers to other entities (1) for which such Seller delivers an Officer's
Certificate to Buyer indicating that such Seller reasonably believes that such
action will not result in a Material Adverse Effect, (2) which meet the
requirements of clause (ii) of paragraph (a) and (3) for which such purchaser,
transferee, pledgee or entity shall expressly assume, in an agreement
supplemental hereto, executed and delivered to Buyer in writing in form
satisfactory to Buyer, the performance of every covenant and obligation of such
Seller thereby conveyed.
ARTICLE V
BANKRUPTCY EVENTS
Section 5.1 Rights upon the Occurrence of a Bankruptcy Event. If a
Bankruptcy Event occurs with respect to a Seller, such Seller shall on the day
any such event occurs, immediately cease to transfer Receivables to Buyer and
shall promptly give notice of such event to the indenture trustee under the
Indenture and Buyer. Notwithstanding any cessation of the transfer to Buyer of
additional Receivables, Receivables transferred to Buyer prior to the occurrence
of such Bankruptcy Event, and Collections in respect of such Receivables, shall
continue to be property of Buyer.
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.1 Representations and Warranties of Seller.
(a) To induce Buyer to accept the Transferred Assets, each Seller
severally makes the following representations and warranties to Buyer, as of the
Closing Date (in the case of the
19 Receivables Sale Agreement
initial Sellers) and, to the extent applicable, on each subsequent Transfer Date
following the date on which such Seller became a Seller.
(i) Valid Existence; Power and Authority. Such Seller (A) is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization; (B) is duly qualified to conduct business
and is in good standing in each other jurisdiction where its ownership or
lease of property or the conduct of its business requires such
qualification and where the failure to be so qualified or in good standing
would have a Material Adverse Effect; and (C) has all requisite power and
authority to execute, deliver and perform its obligations under this
Agreement.
(ii) UCC Information. The true legal name of such Seller as
registered in the jurisdiction of its organization and the current
location of such Seller's jurisdiction of organization are set forth in
Schedule 6.1(a)(ii) and such name and location have not changed within the
past twelve (12) months. In addition, Schedule 6.1(a)(ii) lists such
Seller's (A) federal employer identification number and (B) organizational
identification number as designated by the jurisdiction of its
organization.
(iii) Authorization of Transaction; No Violation. The execution,
delivery and performance by such Seller of this Agreement and the other
Related Documents to which such Seller is a party and the creation and
perfection of all Liens and ownership interests provided for herein: (A)
have been duly authorized by all necessary action on the part of such
Seller, and (B) do not violate any provision of any law or regulation of
any Governmental Authority, or contractual or restrictions binding on such
Seller, except where such violations, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(iv) Enforceability. On or prior to the Closing Date, each of the
Related Documents to which a Seller is a party shall have been duly
executed and delivered by such Seller and each such Related Document shall
then constitute a legal, valid and binding obligation of such Seller
enforceable against it in accordance with its terms, subject to
bankruptcy, receivership, conservatorship, insolvency, reorganization,
moratorium and other similar laws of general applicability relating to or
affecting creditors' rights and to general principles of equity.
(v) Accuracy of Certain Information. All written factual
information heretofore furnished by such Seller to Buyer with respect to
the Transferred Receivables for the purposes of, or in connection with,
this Agreement was true and correct in all material respects on the date
as of which such information was stated or certified.
(vi) Use of Proceeds. No proceeds received by such Seller under
this Agreement will be used by it for any purpose that violates Regulation
U of the Federal Reserve Board.
(vii) Transferred Receivables. With respect to each Transferred
Receivable relating to such Seller, such Seller represents and warrants
that as of the Transfer Date for such Transferred Receivable:
20 Receivables Sale Agreement
(A) such Transferred Receivable satisfies the criteria for
an Eligible Receivable;
(B) all authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority
required to be obtained, effected or given by such Seller in
connection with the conveyance by such Seller of such Transferred
Receivable to Buyer have been duly obtained, effected or given and
are in full force and effect; and
(C) the additional representations and warranties set forth
in Schedule 6.1(a)(vii) are true and correct.
The representations and warranties described in this Section 6.1(a) shall
survive the sale of the Transferred Assets to Buyer, any subsequent assignment
or sale of the Transferred Assets by Buyer, and the termination of this
Agreement and the other Related Documents and shall continue until the payment
in full of all Transferred Assets.
(b) Upon discovery by a Seller or Buyer of a breach of any of the
representations and warranties by such Seller set forth in this Section 6.1, the
party discovering such breach shall give prompt written notice to the other.
Each Seller agrees to cooperate with Buyer in attempting to cure any such
breach.
(c) If any representation or warranty of a Seller contained in Section
6.1(a)(vii) is not true and correct in any material respect as of the date
specified therein with respect to any Transferred Receivable or any Account and
as a result of such breach Buyer's interest in such Transferred Receivable or
Account is materially and adversely affected, including if Buyer's rights in, to
or under such Transferred Receivables or the proceeds of such Transferred
Receivables are impaired or such proceeds are not available for any reason to
Buyer free and clear of any Lien other than Permitted Encumbrances, unless cured
within sixty (60) days (or such longer period, not in excess of one hundred
twenty (120) days, as may be agreed to by Buyer) after the earlier to occur of
the discovery thereof by such Seller or receipt by such Seller of notice thereof
given by Buyer, then such Transferred Receivable shall be designated an
"Ineligible Receivable;" provided, that such Transferred Receivables will not be
deemed to be Ineligible Receivables but will be deemed Eligible Receivables if,
on any day prior to the end of such sixty (60) day or longer period, (i) the
relevant representation and warranty shall be true and correct in all material
respects as if made on such day and (ii) such Seller shall have delivered an
Officer's Certificate describing the nature of such breach and the manner in
which the relevant representation and warranty became true and correct. A
Transferred Receivable shall be deemed to become an Ineligible Receivable if the
Dealer relating to such Receivable exercises a Dealer Repurchase Option with
respect thereto.
(d) On the first Purchase Date that coincides with or falls after the
date on which any Transferred Receivable is designated as an Ineligible
Receivable, the applicable Seller shall repurchase such Ineligible Receivable
from Buyer as provided below. The purchase price for the Ineligible Receivables
in any Account shall equal the Purchase Price paid for such Ineligible
Receivables, less any Principal Collections received on that Receivable from the
Closing Date or relevant Transfer Date, as applicable. On any Purchase Date the
aggregate amount of such
21 Receivables Sale Agreement
repurchase prices then payable may be netted against the Purchase Price then
payable, unless Buyer informs such Seller that Buyer requires funds to make
payments on account of the related Ineligible Receivables under any of the
Related Documents, in which case such amounts shall be paid gross.
(e) If any representation or warranty of a Seller contained in Section
6.1(a)(i), 6.1(a)(ii), 6.1(a)(iii) or 6.1(a)(iv) of this Agreement is not true
and correct in any material respect and such breach has a material adverse
effect on the Transferred Receivables transferred to Buyer by such Seller or the
availability of the proceeds thereof to Buyer, such Seller shall be obligated to
accept a reassignment of the Transferred Receivables if such breach and any
material adverse effect caused by such breach is not cured within sixty (60)
days (or within such longer period, not in excess of one hundred fifty (150)
days, as may be agreed to by Buyer), after the earlier to occur of the discovery
thereof by such Seller or receipt by such Seller of notice thereof given by
Buyer, on the terms set forth below; provided, that such Transferred Receivables
will not be reassigned to such Seller if, on any day prior to the end of such
sixty (60) day or longer period (i) the relevant representation and warranty
shall be true and correct in all material respects as if made on such day and
(ii) such Seller shall have delivered an Officer's Certificate describing the
nature of such breach and the manner in which the relevant representation and
warranty became true and correct. In connection with a reassignment pursuant to
the preceding sentence, such Seller shall pay to Buyer in immediately available
funds not later than 12:00 noon, New York City time, on the first Payment Date
following the Monthly Period in which such reassignment obligation arises, in
payment for such reassignment, an amount equal to the Aggregate Reassignment
Amount. The payment of such deposit amount in immediately available funds shall
otherwise be considered payment in full of all of the Transferred Receivables.
(f) Upon the payment, if any, required to be made to Buyer as provided
in Section 6.1(d) or 6.1(e), Buyer shall automatically and without further
action be deemed to transfer, assign, set over and otherwise convey to the
applicable Seller or its designee, without recourse, representation or warranty,
all the right, title and interest of Buyer in and to the applicable Transferred
Receivables, all moneys due or to become due and all amounts received with
respect thereto and all proceeds thereof. Buyer shall execute such documents and
instruments of transfer or assignment and take such other actions as shall
reasonably be requested by such Seller to effect the conveyance of such
Transferred Receivables pursuant to this Section.
Section 6.2 Affirmative Covenants of Seller. Each Seller severally
covenants and agrees that, unless otherwise consented to by Buyer, from and
after the Closing Date (or the relevant Transfer Date, as applicable) and until
the date after the Agreement Termination Date or, if applicable, the Seller
Termination Date relating to such Seller, when the Outstanding Balance of all
Transferred Receivables relating to such Seller have been reduced to zero:
(a) Account Allocations. If such Seller is unable for any reason to
transfer Transferred Receivables to Buyer in accordance with the provisions of
this Agreement (including by reason of the application of the provisions of
Section 5.1 or an order by any Governmental Authority that such Seller not
transfer any additional Receivables to Buyer) then, in any such event, such
Seller agrees to allocate and pay to Buyer or Master Servicer on its behalf,
after the
22 Receivables Sale Agreement
date of such inability, all Collections with respect to Transferred Receivables
previously sold by such Seller to Buyer.
(b) Notice of Material Event. Each Seller shall promptly inform Buyer in
writing of the occurrence of any of the following with respect to such Seller,
in each case setting forth the details thereof and what action, if any, such
Seller proposes to take with respect thereto:
(i) any Litigation commenced or threatened against such Seller or
with respect to or in connection with all or any substantial portion of
the Transferred Assets or developments in such Litigation, in each case,
that such Seller believes has a reasonable risk of being determined
adversely and having a Material Adverse Effect;
(ii) the commencement of a proceeding against such Seller seeking a
decree or order in respect of Seller (A) under any Debtor Relief Laws, (B)
appointing a custodian, receiver, liquidator, assignee, trustee or
sequestrator (or similar official) for such Seller or for any substantial
part of such Seller's assets, or (C) ordering the winding-up or
liquidation of the affairs of such Seller; or
(iii) such Seller's failure to comply with any of its obligations
under this Agreement.
(c) Notice of Liens. Each Seller shall notify Buyer promptly after
becoming aware of any Lien on any Transferred Asset other than Permitted
Encumbrances.
(d) Information for Reports. Each Seller shall promptly deliver any
material written information, documents, records or reports with respect to the
Transferred Receivables that Buyer shall reasonably request.
(e) Deposit of Collections. Each Seller shall transfer to Buyer or
Master Servicer on its behalf, promptly, and in any event no later than the
Business Day after receipt thereof, all Collections it may receive in respect of
Transferred Assets.
(f) Financing Agreements and Policies. Each Seller shall comply with and
perform its obligations under the Financing Agreements relating to the Accounts
and the Credit and Collection Policies except insofar as any failure to comply
or perform would not materially and adversely affect the rights of Buyer.
Section 6.3 Negative Covenants of Seller. Each Seller severally covenants
and agrees that, without the prior written consent of Buyer, from and after the
Closing Date (or the relevant Transfer Date, as applicable) and until the date
after the Agreement Termination Date (or, if applicable, the Seller Termination
Date relating to such Seller) when the Outstanding Balances of all Transferred
Receivables transferred hereunder by such Seller prior to such Agreement
Termination Date (or, if applicable, the Seller Termination Date relating to
such Seller) have been reduced to zero:
(a) Liens. Each Seller shall not create, incur, assume or permit to
exist any Lien, other than Permitted Encumbrances, on or with respect to the
Transferred Assets.
23 Receivables Sale Agreement
(b) Amendments to Financing Agreements and Credit and Collection
Policies. [Such Seller shall not amend the Financing Agreements; provided, that
this sentence shall not prevent a Seller from assigning its rights in a
Financing Agreement to another Seller. Such Seller shall not amend its Credit
and Collection Policies if such amendment would be adverse in any material
respect to Buyer].
(c) UCC Matters. Such Seller shall not change its state of organization
or formation or its name such that any financing statement filed to perfect
Buyer's interests under this Agreement would become seriously misleading, unless
such Seller shall have given Buyer not less than thirty (30) days' prior written
notice of such change.
(d) No Proceedings. From and after the Closing Date and until the date
one year plus one day following the date on which all amounts due with respect
to securities rated by a rating agency that were issued by any entity holding
Transferred Assets or an interest therein have been paid in full in cash, such
Seller shall not, directly or indirectly, institute or cause to be instituted
against Buyer any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceeding under any Debtor Relief Laws;
provided, that the foregoing shall not in any way limit such Seller's right to
pursue any other creditor rights or remedies that such Seller may have under any
applicable law.
(e) Sale Characterization. For accounting purposes, such Seller shall
not account for the transactions contemplated by this Agreement in any manner
other than, with respect to the sale of each Transferred Receivable, as a true
sale and absolute assignment of its full right, title and ownership interest in
the related Transferred Assets to Buyer. Such Seller shall also maintain its
records and books of account in a manner which clearly reflects each such sale
of the Transferred Receivables to Buyer.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any party hereto
by any other party hereto, or whenever any party hereto desires to give or serve
upon any other party hereto any communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and shall be deemed to have been validly
served, given or delivered (a) upon the earlier of actual receipt and three (3)
Business Days after deposit in the United States mail, registered or certified
mail, return receipt requested, with proper postage prepaid, (b) upon
transmission, when sent by telecopy or other similar facsimile transmission
(with such telecopy or facsimile promptly confirmed by delivery of a copy by
personal delivery or United States mail as otherwise provided in this Section
7.1), (c) one (1) Business Day after deposit with a reputable overnight courier
with all charges prepaid or (d) when delivered, if hand-delivered by messenger,
all of which shall be addressed to the party to be notified and sent to the
address or facsimile number set forth below or to such other address (or
facsimile number) as may be substituted by notice given as herein provided. The
giving of any notice required hereunder may be waived in writing by the party
entitled to receive such notice. Failure or delay
24 Receivables Sale Agreement
in delivering copies of any notice, demand, request, consent, approval,
declaration or other communication to any Person (other than Buyer) designated
in any written communication provided hereunder to receive copies shall in no
way adversely affect the effectiveness of such notice, demand, request, consent,
approval, declaration or other communication. Notwithstanding the foregoing,
whenever it is provided herein that a notice is to be given to any other party
hereto by a specific time, such notice shall be effective only if actually
received by such party prior to such time, and if such notice is received after
such time or on a day other than a Business Day, such notice shall be effective
only on the immediately succeeding Business Day.
If to a Seller:
GE Commercial Distribution Finance Corporation
5595 Trillium Boulevard
Hoffman Estates, Illinois 60192
Attention: General Counsel
Telephone: [ ]
Facsimile: [ ]
|
or
Transamerica Commercial Finance Corporation
5595 Trillium Boulevard
Hoffman Estates, Illinois 60192
Attention: General Counsel
Telephone: [ ]
Facsimile: [ ]
|
If to Buyer:
CDF Funding, Inc.
1600 Summer Street, 4th Floor
Stamford, CT 06927
Attention: Manager - Securitization
Telephone: (203) 357-4756
Facsimile: (203) 357-6796
|
With a copy to:
General Electric Capital Corporation
1600 Summer Street, 4th Floor
Stamford, CT 06927
Attention: Portfolio Manager
Telephone: (203) 357-4328
Facsimile: (203) 961-2953
25 Receivables Sale Agreement
|
Section 7.2 No Waiver; Remedies.
(a) The failure of any party hereto, at any time or times, to require
strict performance by any other party hereto of any provision of this Agreement
shall not waive, affect or diminish any right of such party thereafter to demand
strict compliance and performance with this Agreement. Any suspension or waiver
of any breach or default hereunder shall not suspend, waive or affect any other
breach or default whether the same is prior or subsequent thereto and whether of
the same or a different type. None of the undertakings, agreements, warranties,
covenants and representations of any party contained in this Agreement, and no
breach or default by any party under this Agreement, shall be deemed to have
been suspended or waived or amended by any other party hereto unless such waiver
or suspension or amendment is by an instrument in writing signed by an officer
of or other duly authorized signatory of such party and, in the case of a
suspension or waiver, directed to the defaulting party specifying such
suspension or waiver.
(b) Each party's rights and remedies under this Agreement shall be
cumulative and nonexclusive of any other rights and remedies that such party may
have under any other agreement, including the other Related Documents, by
operation of law or otherwise.
Section 7.3 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of each Seller and Buyer and their respective
successors and permitted assigns, except as otherwise provided herein. Except as
provided below and in Sections 2.8 or 4.1 of this Agreement, a Seller may not
assign, transfer, hypothecate or otherwise convey its rights, benefits,
obligations or duties hereunder without having obtained the prior express
written consent of Buyer. Any such purported assignment, transfer, hypothecation
or other conveyance by such Seller without the prior express written consent of
Buyer shall be void. Each Seller acknowledges that under the Second Tier
Agreement, Buyer will assign its rights granted hereunder to the Issuer, and
upon such assignment the Issuer shall have, to the extent of such assignment,
all rights of Buyer hereunder and such transferee may in turn transfer such
rights. The terms and provisions of this Agreement are for the purpose of
defining the relative rights and obligations of each Seller and Buyer with
respect to the transactions contemplated hereby and no Person shall be a
third-party beneficiary of any of the terms and provisions of this Agreement.
Section 7.4 Termination. This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms, and
shall remain in full force and effect until the termination of the Issuer (such
date, the "Agreement Termination Date"). A Seller may cease to be a party to
this Agreement on a date selected by such Seller upon prior notice thereof to
Buyer (such date, with respect to such Seller, being the "Seller Termination
Date").
Section 7.5 Survival. Except as otherwise expressly provided herein or in
any other Related Document, no termination or cancellation (regardless of cause
or procedure) of any agreement made by a Seller under this Agreement shall in
any way affect or impair the obligations, duties and liabilities of such Seller
or the rights of such Seller relating to any unpaid portion of any and all
obligations of such Seller to Buyer, due or not due, liquidated, contingent or
unliquidated or any transaction or event occurring prior to such termination, or
any transaction or event, the performance of which is required after the
Agreement Termination Date (or, if
27 Receivables Sale Agreement
applicable, the Seller Termination Date relating to such Seller). Except as
otherwise expressly provided herein or in any other Related Document, all
undertakings, agreements, covenants, warranties and representations of or
binding upon a Seller, and all rights of such Seller hereunder shall not
terminate or expire, but rather shall survive any such termination or
cancellation and shall continue in full force and effect until the date after
the Agreement Termination Date (or, if applicable, the Seller Termination Date
relating to such Seller) when the Outstanding Balances of all Transferred
Receivables transferred hereunder by such Seller prior to such Agreement
Termination Date (or, if applicable, the Seller Termination Date relating to
such Seller) have been reduced to zero; provided, that the rights and remedies
pursuant to the provisions of Sections 2.5, 6.3(d), 7.3, 7.11 and 7.12 shall be
continuing and shall survive any termination of this Agreement.
Section 7.6 Complete Agreement; Modification of Agreement. This Agreement
constitutes the complete agreement between the parties with respect to the
subject matter hereof, supersedes all prior agreements and understandings
relating to the subject matter hereof and thereof, and may not be modified,
altered or amended except by written agreement of the parties hereto.
Section 7.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL
RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS
THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF
MANHATTAN IN NEW YORK CITY; PROVIDED FURTHER, THAT NOTHING IN THIS AGREEMENT
SHALL BE DEEMED OR OPERATE TO PRECLUDE BUYER FROM BRINGING SUIT OR TAKING OTHER
LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE RECEIVABLES OR ANY
SECURITY FOR THE OBLIGATIONS OF A SELLER ARISING HEREUNDER OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF BUYER. EACH PARTY HERETO SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY
SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY
MAY HAVE
27 Receivables Sale Agreement
BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS
AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS
DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL
SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR
SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS
DETERMINED IN ACCORDANCE WITH SECTION 7.1 AND THAT SERVICE SO MADE SHALL BE
DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR
THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID.
NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE
MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND
THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN
ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A
JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION
OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO
WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO
RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Section 7.8 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement.
Section 7.9 Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
Section 7.10 Section Titles. The section titles and table of contents
contained in this Agreement are provided for ease of reference only and shall be
without substantive meaning or content of any kind whatsoever and are not a part
of the agreement between the parties hereto.
Section 7.11 No Setoff. A Seller's obligations under this Agreement shall
not be affected by any right of setoff, counterclaim, recoupment, defense or
other right such Seller might have against Buyer, all of which rights are hereby
expressly waived by such Seller.
Section 7.12 Further Assurances.
28 Receivables Sale Agreement
(a) Each Seller shall, at its sole cost and expense, upon request of
Buyer, promptly and duly authorize, execute and/or deliver, as applicable, any
and all further instruments and documents and take such further actions that
Buyer may reasonably request to carry out more effectively the provisions and
purposes of this Agreement or to obtain the full benefits of this Agreement and
of the rights and powers herein granted, including authorizing and filing any
financing or continuation statements under the UCC with respect to the ownership
interest of Buyer created by this Agreement. Each Seller hereby authorizes Buyer
to file any such financing or continuation statements without the signature of
such Seller to the extent permitted by applicable law. A carbon, photographic or
other reproduction of this Agreement or of any notice or financing statement
covering the Transferred Assets or any part thereof shall be sufficient as a
notice or financing statement where permitted by law. If any amount payable
under or in connection with any of the Transferred Assets is or shall become
evidenced by any instrument, such instrument, other than checks and notes
received in the ordinary course of business, shall be duly endorsed in a manner
satisfactory to Buyer immediately upon such Seller's receipt thereof and
promptly delivered to or at the direction of Buyer.
(b) If a Seller fails to perform any agreement or obligation under this
Section 7.12, Buyer may (but shall not be required to) itself perform, or cause
performance of, such agreement or obligation, and the reasonable expenses of
Buyer incurred in connection therewith shall be payable by such Seller upon
demand of Buyer.
Section 7.13 Accounting Changes. If any Accounting Changes occur and such
changes result in a change in the standards or terms used herein, then the
parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such Accounting Changes with the desired
result that the criteria for evaluating the financial condition of such Persons
and their Subsidiaries shall be the same after such Accounting Changes as if
such Accounting Changes had not been made. If the parties hereto agree upon the
required amendments to this Agreement, then after appropriate amendments have
been executed and the underlying Accounting Change with respect thereto has been
implemented, any reference to GAAP contained herein shall, only to the extent of
such Accounting Change, refer to GAAP consistently applied after giving effect
to the implementation of such Accounting Change. If such parties cannot agree
upon the required amendments within thirty (30) days following the date of
implementation of any Accounting Change, then all financial statements delivered
and all standards and terms used herein shall be prepared, delivered and used
without regard to the underlying Accounting Change.
Section 7.14 No Indirect or Consequential Damages. NO PARTY TO THIS
AGREEMENT SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS AGREEMENT,
ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER
PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF ANY
TRANSACTION CONTEMPLATED HEREUNDER.
[SIGNATURES FOLLOW]
29 Receivables Sale Agreement
IN WITNESS WHEREOF, each Seller and Buyer have caused this Receivables
Sale Agreement to be duly executed as of the day and year first above written.
GE COMMERCIAL DISTRIBUTION
FINANCE CORPORATION, as a Seller
By: __________________________________
Name:_________________________________
Title:________________________________
S-1 Receivables Sale Agreement
TRANSAMERICA COMMERCIAL
FINANCE CORPORATION, as a Seller
By: __________________________________
Name:_________________________________
Title:________________________________
S-2 Receivables Sale Agreement
|
CDF FUNDING, INC., as Buyer
By: __________________________________
Name:_________________________________
Title:________________________________
S-3 Receivables Sale Agreement
|
SCHEDULE 1
LIST OF ACCOUNTS
The initial Account Schedule consists of [a compact disk] delivered to
Buyer and Indenture Trustee listing Accounts and related information as of [ ],
2004.
Sch. 1-1 Receivables Sale Agreement
SCHEDULE 6.1(a)(ii)
UCC INFORMATION
A. Transamerica Commercial Finance Corporation
1. Legal Name
Transamerica Commercial Finance Corporation
2. Jurisdiction of Organization
Delaware
3. Federal Employer Identification Number
94-3054016
4. Organizational Identification Number
2141782
B. GE Commercial Distribution Finance Corporation
1. Legal Name
GE Commercial Distribution Finance Corporation
2. Jurisdiction of Organization
Nevada
3. Federal Employer Identification Number
41-0954316
4. Organizational Identification Number
C1718-1969
Sch. 6.1(a)(ii)-1 Receivables Sale Agreement
SCHEDULE 6.1(a)(vii)
PERFECTION REPRESENTATIONS AND WARRANTIES
1. General. This Agreement creates a valid and continuing ownership
interest in Buyer with respect to all of such Seller's right, title and interest
in, to and under the Transferred Assets which (a) is enforceable against
creditors of and purchasers from such Seller, as such enforceability may be
limited by applicable law, now or hereafter in effect, and by general principles
of equity (whether considered in a suit at law or in equity), and (b) will be
prior to all other Liens (other than Permitted Encumbrances) in such property.
2. Characterization. The Receivables constitute "accounts", "general
intangibles" or "chattel paper" within the meaning of UCC Section 9-102.
3. Creation. Immediately prior to its conveyance of the Transferred
Assets pursuant to this Agreement, such Seller owns and has good and marketable
title to such Transferred Assets free and clear of any Lien, claim or
encumbrance of any Person (other than Permitted Encumbrances).
4. Perfection. Such Seller has caused, or will have caused within ten
(10) days after the Closing Date, the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions under
applicable law in order to perfect Buyer's ownership of such Transferred Assets.
5. Priority. Other than the ownership interests transferred to Buyer
pursuant to this Agreement, such Seller has not pledged, assigned, sold, granted
a security interest in, or otherwise conveyed any of the Transferred Assets
except as permitted by this Agreement. Such Seller has not authorized the filing
of and is not aware of any financing statements against such Seller that include
a description of collateral covering the Transferred Assets other than any
financing statement (i) in favor of Buyer and its assignees, (ii) that has been
terminated, or (iii) that has been granted pursuant to the terms of the Related
Documents. None of the tangible chattel paper that constitutes or evidences the
Receivables has any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than Buyer. Such Seller is
not aware of any judgment lien, ERISA lien or tax lien filings against it.
6. Survival of Perfection Representations. Notwithstanding any other
provision of this Agreement or any other Related Document, the representations
contained in this Schedule 6.1(a)(vii) shall be continuing and remain in full
force and effect.
7. No Waiver. The parties to this Agreement: (i) shall not, without the
consent of the other parties, waive any of the representations and warranties in
this Schedule 6.1(a)(vii) (the "Perfection Representations"); (ii) shall provide
the other parties with prompt written notice of any breach of the Perfection
Representations, and shall not, without the consent of S&P (if S&P is then
rating any outstanding Series) waive a breach of any of the Perfection
Representations.
8. Seller to Maintain Perfection and Priority. Each Seller covenants
that, in order to evidence the interests of such Seller and Buyer under this
Agreement, such Seller shall take such action, or execute and deliver such
instruments (other than effecting a Filing (as defined below),
Sch. 6.1(a)(vii)-1 Receivables Sale Agreement
unless such Filing is effected in accordance with this paragraph) as may be
necessary or advisable (including such actions as are requested by Buyer) to
maintain and perfect, as a first priority interest, Buyer's ownership of the
Transferred Assets. Such Seller shall, from time to time and within the time
limits established by law, prepare and present to Buyer for Buyer to authorize
(based in reliance on the Opinion of Counsel hereinafter provided for in this
paragraph) such Seller to file, all financing statements, amendments,
continuations, financing statements in lieu of a continuation statement,
terminations, partial terminations, releases or partial releases, or any other
filings necessary or advisable to continue, maintain and perfect Buyer's
ownership of the Transferred Assets as a first-priority interest (each a
"Filing"). Such Seller shall present each such Filing to Buyer together with (x)
an Opinion of Counsel to the effect that such Filing (i) satisfies all
requirements and conditions to such Filing in this Agreement and (ii) satisfies
the requirements for a Filing of such type under the UCC in the applicable
jurisdiction, and (y) a form of authorization for Buyer's signature. Upon
receipt of such Opinion of Counsel and form of authorization, Buyer shall
promptly authorize in writing such Seller to, and such Seller shall, effect such
Filing under the UCC. Notwithstanding anything else in this Agreement to the
contrary, such Seller shall not have any authority to effect a Filing without
obtaining written authorization from Buyer in accordance with this paragraph.
Sch. 6.1(a)(vii)-2 Receivables Sale Agreement
EXHIBIT A
FORM OF ASSIGNMENT
(As required by Section 2.6(c) of the Agreement)
ASSIGNMENT No. _______ OF RECEIVABLES IN ADDITIONAL ACCOUNTS (this "Assignment")
dated as of ________, by and between [GE COMMERCIAL DISTRIBUTION FINANCE
CORPORATION] [TRANSAMERICA COMMERCIAL FINANCE CORPORATION], as seller ("Seller")
and CDF FUNDING, INC., as buyer ("Buyer"), pursuant to the Agreement referred to
below.
W I T N E S S E T H :
WHEREAS, Seller and Buyer are parties to the Receivables Sale Agreement,
dated as of [ ], 2004 (as it may be amended, restated, supplemented or otherwise
modified from time to time, the "Agreement"); and
WHEREAS, pursuant to the Agreement, Seller wishes to designate Additional
Accounts to be included as Accounts and to convey the Transferred Receivables in
such Additional Accounts that have been designated "Additional Accounts"
pursuant to the Agreement, whether now existing or hereafter created, to Buyer
(as each such term is defined in the Agreement); and
WHEREAS, Buyer is willing to accept such designation and conveyance
subject to the terms and conditions hereof;
NOW, THEREFORE, Seller and Buyer hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein
shall have such defined meanings when used herein, unless otherwise defined
herein.
"Addition Date" means, with respect to the Additional Accounts
designated hereby, [_______________________], 20[_________].
"Addition Cut-Off Date" means, with respect to Additional Accounts
designated hereby, [______], 20[_____].
"Transferred Property" is defined in Section 3(a).
2. Designation of Additional Accounts. The Accounts listed on Schedule
1 to this Assignment have been designated "Additional Accounts" pursuant to the
Agreement. Schedule 1 to this Assignment, as of the Addition Date, shall
supplement Schedule 1 to the Agreement as required by Section 2.1(b) of the
Agreement.
3. Conveyance of Receivables.
(a) Seller does hereby transfer, assign, set over and otherwise
convey, without recourse except as set forth in this Assignment and the
Agreement, to Buyer, all its right, title
Exh. A-1 Receivables Sale Agreement
and interest in, to and under the following (the "Transferred Property"): the
Receivables in such Additional Accounts existing at the close of business on the
Addition Date and thereafter created from time to time until the Agreement
Termination Date (or, if applicable, the Seller Termination Date with respect to
such Seller), the Collateral Security and Collections with respect thereto and
related Recoveries, together with all monies due or to become due and all
amounts received or receivable with respect thereto and Insurance Proceeds
relating thereto and all proceeds of the foregoing. The foregoing does not
constitute and is not intended to result in the creation or assumption by Buyer
of any obligation of any Seller or any other Person in connection with the
Accounts or the Transferred Receivables or under any agreement or instrument
relating thereto, including any obligation under any Financing Agreement, any
Floorplan Agreement, or any Participation Agreement, or any obligation to any
Dealer or any Manufacturer.
(b) Seller agrees to record and file, at its own expense,
financing statements (and continuation statements when applicable) with respect
to the Receivables in Additional Accounts existing on the Addition Date and
thereafter created meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary to perfect, and maintain
perfection of, Buyer's ownership of such Receivables, and to deliver a
file-stamped copy of each such financing statement or other evidence of such
filing to Buyer within ten (10) days of the Addition Date. Buyer shall be under
no obligation whatsoever to file such financing or continuation statements or to
make any other filing under the UCC in connection with such sale and assignment.
(c) In connection with such assignment, Seller further agrees, at
its own expense, on or prior to the date of this Assignment, to indicate and
cause Master Servicer to indicate in the appropriate computer files that
Receivables created in connection with the Additional Accounts and designated
hereby have been conveyed to Buyer pursuant to the Agreement and this
Assignment.
(d) The parties hereto intend that the transfer of the Transferred
Property by Seller to Buyer shall constitute a sale by Seller to Buyer and not a
loan by Buyer to Seller secured by the Transferred Property. If, contrary to the
intent of the parties hereto, a court of competent jurisdiction determines that
any transaction provided for herein constitutes a loan and not a sale of the
Transferred Property, then this Assignment shall constitute a security agreement
under applicable law and Seller shall be deemed to have granted, and Seller
hereby grants, to Buyer a security interest in and to all of Seller's right,
title and interest in, to and under the Transferred Property.
4. Acceptance by Buyer. Buyer hereby acknowledges its acceptance of all
right, title and interest to the property, existing on the Addition Date and
thereafter created, conveyed to Buyer pursuant to Section 3(a) of this
Assignment. Buyer further acknowledges that, prior to or simultaneously with the
execution and delivery of this Assignment, Seller delivered to it the Account
Schedule described in Section 2 of this Assignment.
5. Representations and Warranties of Seller. Seller hereby represents
and warrants to Buyer as of the Addition Date:
Exh. A-2 Receivables Sale Agreement
(a) This Assignment constitutes a legal, valid and binding
obligation of Seller enforceable against Seller in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors' rights in general and except as
such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity);
(b) each of the Transferred Receivables satisfies the criteria for
an Eligible Receivable as of the Addition Cut-Off Date;
(c) each Additional Account is, as of the Addition Cut-Off Date,
an Eligible Account;
(d) no selection procedures believed by Seller to be materially
adverse to the interests of Buyer or any of its creditors were utilized in
selecting the Additional Accounts from the available Eligible Accounts;
(e) as of the Addition Date, Seller is solvent;
(f) the Account Schedule delivered pursuant to this Assignment is
an accurate and complete listing in all material respects of all the Accounts as
of the related Addition Cut-Off Date, and the information contained therein with
respect to the identity of such Accounts and the Transferred Receivables
existing in such Accounts, is true and correct in all material respects as of
the Addition Cut-Off Date;
(g) the Agreement and this Assignment transfer ownership to Buyer
of the Transferred Property, and upon filing of the financing statements
described herein and, in the case of Transferred Receivables thereafter created,
upon the creation thereof, such ownership will be perfected and prior to all
Liens (other than Permitted Encumbrances) in the Transferred Property;
(h) the Transferred Receivables constitute "accounts", "chattel
paper" or "general intangibles" within the meaning of UCC Section 9-102;
(i) immediately prior to the conveyance of the Receivables
pursuant to this Agreement, Seller owns and has good and marketable title to the
Receivables free and clear of any Lien, claim or encumbrance of any Person
(other than Permitted Encumbrances); and
(j) subject to Permitted Encumbrances, other than the transfer and
assignment to Buyer pursuant to this Assignment, Seller had not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed any of the
Transferred Receivables. Seller has not authorized the filing of and is not
aware of any UCC financing statements against Seller that included a description
of collateral covering the Transferred Receivables.
6. Amendment of the Agreement. The Agreement is hereby amended to
provide that all references therein to "this Agreement" and "herein" shall be
deemed from and after the Addition Date to be a dual reference to the Agreement
as supplemented by this Assignment. Except as expressly amended hereby, all of
the representations, warranties, terms, covenants and
Exh. A-3 Receivables Sale Agreement
conditions of the Agreement shall remain unamended and shall continue to be, and
shall remain, in full force and effect in accordance with its terms.
7. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
8. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS ASSIGNMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN
ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS
OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS
THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS ASSIGNMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO
THIS ASSIGNMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS
FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH
OF MANHATTAN IN NEW YORK CITY. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE
TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH
PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON
LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED
IN ACCORDANCE WITH SECTION 7.1 OF THE AGREEMENT AND THAT SERVICE SO MADE SHALL
BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR
THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID.
NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
Exh. A-4 Receivables Sale Agreement
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS ASSIGNMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Exh. A-5 Receivables Sale Agreement
IN WITNESS WHEREOF, the undersigned have caused this Assignment to be duly
executed and delivered on the day and year first above written.
[GE COMMERCIAL DISTRIBUTION
FINANCE CORPORATION]
[TRANSAMERICA COMMERCIAL FINANCE
CORPORATION], as Seller
By:____________________________________
Name:__________________________________
Title:_________________________________
Exh. A-6 Receivables Sale Agreement
CDF FUNDING, INC., as Buyer
By:____________________________________
Name:__________________________________
Title:_________________________________
Exh. A-7 Receivables Sale Agreement
Schedule 1
to Assignment
ADDITIONAL ACCOUNTS
Exh. A-8 Receivables Sale Agreement
|
EXHIBIT B
FORM OF REASSIGNMENT
(As required by Section 2.7 of the Agreement)
REASSIGNMENT No. _______ ("Reassignment") dated as of _________, by and
between [GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION] [TRANSAMERICA
COMMERCIAL FINANCE CORPORATION], as seller (the "Seller"), and CDF FUNDING,
INC., as buyer (the "Buyer"), pursuant to the Agreement referred to below.
WITNESSETH:
WHEREAS Seller and Buyer are parties to the Receivables Sale Agreement,
dated as of [ ], 2004 (as it may be amended, restated, supplemented or otherwise
modified from time to time, the "Agreement");
WHEREAS pursuant to the Agreement, the parties hereto desire to remove
certain Accounts from the Account Schedule [insert if such Accounts were not
Eligible Accounts at the time such Accounts were originally designated as
Accounts; and the parties hereto desire that Buyer reconvey to Seller the
Transferred Receivables of such Removed Accounts, whether now existing or
hereafter created];
NOW, THEREFORE, Seller and Buyer hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein
shall have such defined meanings when used herein, unless otherwise defined
herein.
"Removal Date" means, with respect to the Removed Accounts designated
hereby, ___________, ____.
"Removed Accounts" means the Accounts listed on Schedule 2 to this
Reassignment.
2. Designation of Removed Accounts. Schedule 1 to this Reassignment, as
of the Removal Date, shall not include the Removed Accounts and shall supplement
Schedule 1 to the Agreement as required by Section 2.1(b) of the Agreement.
Schedule 2 to this Reassignment lists the Removed Accounts covered by this
Reassignment.
3. [This Section should be used with respect to Accounts that were not
Eligible Accounts at the time such Accounts were originally designated as
Accounts: Conveyance of Transferred Receivables. (a) Buyer does hereby transfer,
assign, set over and otherwise convey to Seller, without representation,
warranty or recourse, on and after the Removal Date, all right, title and
interest of Buyer in, to and under the Transferred Receivables existing at the
close of business on the Removal Date, and thereafter created from time to time,
in the Removed Accounts designated hereby, the Collateral Security and
Collections and Recoveries with respect thereto, together with all monies due or
to become due and all amounts received or receivable with respect thereto and
all Insurance Proceeds related thereto and all proceeds of the foregoing.
Exhibit B-1 Receivables Sale Agreement
(b) In connection with such transfer, Buyer agrees to execute and
deliver to Seller on or prior to the date this Reassignment is delivered,
applicable termination statements prepared by Seller with respect to the
Transferred Receivables existing at the close of business on the Removal Date,
and thereafter created from time to time, in the Removed Accounts reassigned
hereby and the proceeds thereof evidencing the release by Buyer of its interest
in such Transferred Receivables, and meeting the requirements of applicable
state law, in such manner and such jurisdictions as are necessary to terminate
such interest.]
4. Representations and Warranties of Seller. Seller hereby represents
and warrants to Buyer as of the Removal Date:
(a) Legal Valid and Binding Obligation. This Reassignment constitutes a
legal, valid and binding obligation of Seller enforceable against Seller in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors' rights
in general and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity); and
(b) List of Accounts and Removed Accounts. Schedule 1 attached hereto is
an accurate and complete listing in all material respects of all the Accounts
(other than the Removed Accounts covered by this Reassignment) as of the Removal
Date. Schedule 2 attached hereto is an accurate and complete listing in all
material respects as of the Removal Date of the Removed Accounts being removed
pursuant to this Reassignment.
5. Amendment of the Agreement. The Agreement is hereby amended to
provide that all references therein to "this Agreement" and "herein" shall be
deemed from and after the Removal Date to be a dual reference to the Agreement
as supplemented by this Reassignment. Except as expressly amended hereby, all of
the representations, warranties, terms and covenants and conditions of the
Agreement shall remain unamended and shall continue to be and shall remain in
full force and effect in accordance with its terms.
6. Counterparts. This Reassignment may be executed in two or more
counterparts, and by different parties on separate counterparts), each of which
shall be an original, but all of which shall constitute one and the same
instrument.
7. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS REASSIGNMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL
RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS
THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
Exhibit B-2 Receivables Sale Agreement
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS REASSIGNMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO
THIS REASSIGNMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE
BOROUGH OF MANHATTAN IN NEW YORK CITY. EACH PARTY HERETO SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED
IN ACCORDANCE WITH SECTION 7.1 OF THE AGREEMENT AND THAT SERVICE SO MADE SHALL
BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR
THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID.
NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS REASSIGNMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Exhibit B-3 Receivables Sale Agreement
IN WITNESS WHEREOF, the undersigned have caused this Reassignment to be
duly executed and delivered on the day and year first above written.
[GE COMMERCIAL DISTRIBUTION
FINANCE CORPORATION]
[TRANSAMERICA COMMERCIAL FINANCE
CORPORATION], as Seller
By:____________________________________
Name:__________________________________
Title:_________________________________
Exhibit B-4 Receivables Sale Agreement
CDF FUNDING, INC., as Buyer
By:____________________________________
Name:__________________________________
Title:_________________________________
Exhibit B-5 Receivables Sale Agreement
Schedule 1
to Reassignment
UPDATED ACCOUNT SCHEDULE
Exhibit B-6 Receivables Sale Agreement
|
Schedule 2
to Reassignment
REMOVED ACCOUNTS
Exhibit B-7 Receivables Sale Agreement
EXHIBIT C
FORM OF OPINION OF COUNSEL WITH RESPECT
TO ADDITION OF ADDITIONAL ACCOUNTS
(Provisions to be included in
Opinion of Counsel to be
delivered pursuant to
Section 2.6(c)(ii))
The opinions set forth below may be subject to appropriate qualifications,
assumptions, limitations and exceptions.
1. The provisions of the Receivables Sale Agreement are effective under
the UCC to create in favor of Buyer a security interest in Seller's rights in
the Transferred Receivables in such Additional Accounts and the identifiable
proceeds thereof (the "Specified Assets").
2. The security interest in the Specified Assets created by the
Receivables Sale Agreement will be perfected by the filing of the Financing
Statement as described and defined in such opinion.
Exhibit C-1 Receivables Sale Agreement
Exhibit 4.14
RECEIVABLES PURCHASE AND CONTRIBUTION AGREEMENT
between
CDF FUNDING, INC.,
as Seller,
and
GE DEALER FLOORPLAN MASTER NOTE TRUST,
as Buyer
Dated as of [ ], 2004
Receivables Purchase and
Contribution Agreement
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE I DEFINITIONS.......................................................... 1
Section 1.1 Definitions.................................................... 1
Section 1.2 Other Interpretive Matters..................................... 10
ARTICLE II SALES................................................................ 11
Section 2.1 Sales.......................................................... 11
Section 2.2 Acceptance by Buyer............................................ 12
Section 2.3 Characterization of Transfers.................................. 12
Section 2.4 Purchase Price................................................. 13
Section 2.5 Adjustments.................................................... 13
Section 2.6 Addition of Accounts........................................... 13
Section 2.7 Removal of Accounts............................................ 14
Section 2.8 Additional Sellers............................................. 15
Section 2.9 Additional Originators......................................... 15
ARTICLE III CONDITIONS PRECEDENT ................................................ 15
Section 3.1 Conditions to Initial Transfer................................. 15
Section 3.2 Conditions to all Transfers.................................... 16
ARTICLE IV OTHER MATTERS RELATING TO SELLER..................................... 16
Section 4.1 Merger or Consolidation of, or Assumption of the Obligations
of, Seller, etc................................................ 16
ARTICLE V BANKRUPTCY EVENTS.................................................... 17
Section 5.1 Rights upon the Occurrence of a Bankruptcy Event............... 17
ARTICLE VI REPRESENTATIONS, WARRANTIES AND COVENANTS............................ 17
Section 6.1 Representations and Warranties of Seller....................... 17
Section 6.2 Affirmative Covenants of Seller................................ 20
Section 6.3 Negative Covenants of Seller................................... 21
ARTICLE VII MISCELLANEOUS........................................................ 22
Section 7.1 Notices........................................................ 22
Section 7.2 No Waiver; Remedies............................................ 24
Section 7.3 Successors and Assigns......................................... 24
Section 7.4 Termination.................................................... 24
Section 7.5 Survival....................................................... 24
|
Receivables Purchase and
Contribution Agreement
-i-
TABLE OF CONTENTS
(continued)
PAGE
Section 7.6 Complete Agreement; Modification of Agreement.................. 25
Section 7.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL... 25
Section 7.8 Counterparts................................................... 26
Section 7.9 Severability................................................... 26
Section 7.10 Section Titles................................................. 26
Section 7.11 No Setoff...................................................... 26
Section 7.12 Further Assurances............................................. 26
Section 7.13 Accounting Changes............................................. 27
Section 7.14 No Indirect or Consequential Damages........................... 28
Section 7.15 No Proceedings................................................. 28
SCHEDULES
SCHEDULE 1 List of Accounts
SCHEDULE 6.1(a)(ii) UCC Information
SCHEDULE 6.1(a)(vii) Perfection Representations and Warranties
EXHIBITS
EXHIBIT A Form of Assignment
EXHIBIT B Form of Reassignment
EXHIBIT C Form of Opinion of Counsel with Respect to Additional Accounts
|
Receivables Purchase and
Contribution Agreement
-ii-
RECEIVABLES PURCHASE AND CONTRIBUTION AGREEMENT, dated as of [ ], 2004
(this "Agreement"), between CDF FUNDING, INC., a Delaware corporation, as
Seller, and GE DEALER FLOORPLAN MASTER NOTE TRUST, a statutory trust organized
under the laws of the State of Delaware, as Buyer ("Buyer").
In consideration of the premises and the mutual covenants hereinafter
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
"Account" means each Initial Account and each Additional Account. The term
Account includes an Additional Account only from and after its Addition Date and
includes any Removed Account only prior to its Removal Date.
"Accounting Changes" means, with respect to any Person: (a) changes in
accounting principles required by the promulgation of any rule, regulation,
pronouncement or opinion of the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants (or any successor thereto or
any agency with similar functions); (b) changes in accounting principles
concurred by such Person's certified public accountants; (c) purchase accounting
adjustments under A.P.B. 16 or 17 and EITF 88-16, and the application of the
accounting principles set forth in FASB 109, including the establishment of
reserves pursuant thereto and any subsequent reversal (in whole or in part) of
such reserves; and (d) the reversal of any reserves established as a result of
purchase accounting adjustments.
"Account Schedule" means a computer file or microfiche list or other list
containing a true and complete list of Accounts, identified by account number
(or by an alpha-numeric identifier that uniquely and objectively identifies the
applicable account number pursuant to a protocol that has been provided to
Buyer) and setting forth the receivables balance for each as of (i) the
applicable Addition Cut-Off Date, in the case of an Account Schedule relating to
Additional Accounts, (ii) the Removal Notice Date, in the case of an Account
Schedule relating to Removed Accounts or (iii) the date specified therein, in
the case of any other Account Schedule. Notwithstanding the foregoing, the
initial Account Schedule does not set forth receivables balances, and any
failure to set forth receivables balances in such a file or list shall not
impair the file's or list's effectiveness as an Account Schedule.
"Addition Cut-Off Date" means, as to any Additional Account, the date
specified as such in the related Assignment.
"Addition Date" means, as to any Additional Account, the date specified as
such in the related Assignment.
"Additional Accounts" is defined in Section 2.6(a).
Receivables Purchase and
Contribution Agreement
"Affiliate" means, with respect to any Person, (a) each Person that,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, five percent (5%) or more of the securities having
ordinary voting power in the election of directors of such Person, (b) each
Person that controls, is controlled by or is under common control with such
Person, or (c) each of such Person's officers, directors, joint venturers and
partners. For the purposes of this definition, "control" of a Person means the
possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"Aggregate Reassignment Amount" means, for any reassignment of the
Transferred Receivables pursuant to Section 6.1(e), the aggregate outstanding
amount (comprising principal, interest and all other non-principal amounts
billed to the related Dealers) of such Transferred Receivables as of the end of
the preceding Monthly Period.
"Agreement" is defined in the preamble.
"Agreement Termination Date" is defined in Section 7.4.
"Asset Based Lending Business" means the extensions of credit made by an
Originator to Dealers in order to provide loans based on the value of certain
assets of such Dealers.
"Asset Based Lending Financing Agreement" means an asset based lending
financing agreement entered into by an Originator and a Dealer in connection
with the Asset Based Lending Business.
"Assignment" is defined in Section 2.6(c).
"Authorized Officer" means (a) with respect to any corporation or
statutory trust, the Chairman or Vice-Chairman of the Board, the President, any
Vice President, the Secretary, the Treasurer, any Assistant Secretary, any
Assistant Treasurer and each other officer or employee of such corporation or
trustee of such trust specifically authorized in resolutions of the Board of
Directors of such corporation or trustee of such trust to sign agreements,
instruments or other documents on behalf of such corporation or statutory trust
in connection with the transactions contemplated by the Related Documents, and
(b) with respect to a limited liability company, an officer or manager of such
limited liability company.
"Bankruptcy Event" means, as to any Person, any of the following events:
(a) a case or proceeding shall have been commenced against such Person seeking a
decree or order in respect of such Person (i) under any Debtor Relief Law, (ii)
appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator
(or similar official) for any such Person or for any substantial part of such
Person's assets, or (iii) ordering the winding-up or liquidation of the affairs
of any such Person; or (b) such Person shall (i) file a petition seeking relief
under any Debtor Relief Law, (ii) consent or fail to object in a timely and
appropriate manner to the institution of proceedings thereunder or to the filing
of any such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar
official) for such Person or for any substantial part of such Person's assets,
(iii) make an
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2
assignment for the benefit of creditors, or (iv) take any corporate or statutory
trust action in furtherance of any of the foregoing.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which banks are required or permitted to be closed in the State of New York or
the state of Master Servicer's principal place of business (currently
Connecticut).
"Buyer" is defined in the preamble.
"Closing Date" means [ ], 2004.
"Collateral Security" means, with respect to any Receivable, (i) the
security interest, if any, granted by or on behalf of the related Dealer with
respect thereto, including a security interest in the related Products or
assets, (ii) all other security interests or liens and property subject thereto
from time to time purporting to secure payment of such Receivable, whether
pursuant to the agreement giving rise to such Receivable or otherwise, together
with all financing statements filed against a Dealer describing any collateral
securing such Receivable, (iii) all guarantees, insurance and other agreements
(including Floorplan Agreements and subordination agreements with other lenders)
or arrangements of whatever character from time to time supporting or securing
payment of such Receivable whether pursuant to the agreement giving rise to such
Receivable or otherwise, and (iv) all Records in respect of such Receivable.
"Collections" means, without duplication, all payments by or on behalf of
Dealers received in respect of the Receivables (including proceeds from the
realization upon any Collateral Security) in the form of cash, checks, wire
transfers or any other form of payment. Collections that constitute Recoveries
shall be considered to be Collections of Non-Principal Receivables.
"Credit and Collection Policies" means, with respect to Seller, Seller's
policies and procedures relating to the Receivables, including the policies and
procedures for determining the creditworthiness of Dealers and the extension of
credit to Dealers, and relating to the maintenance of Accounts and collection of
Receivables, as such policies and procedures may be amended from time to time.
"Date of Processing" means, as to any transaction, the Business Day on
which the transaction is first recorded on Master Servicer's computer file of
accounts (without regard to the effective date of such recordation).
"Dealer" means a Person engaged generally in the business of purchasing
consumer or commercial goods from a manufacturer or distributor thereof and
holding such goods for sale or lease in the ordinary course of business or a
Person engaged generally in the business of manufacturing or distributing
consumer or commercial goods for sale to Dealers in the ordinary course of
business.
"Dealer Repurchase Option" means, with respect to a Dealer that has sold
Receivables to an Originator, the right of such Dealer (if any) to repurchase
such Receivables from such Originator.
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"Debtor Relief Laws" means Title 11 of the United States Code and all
other applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, suspension of payments,
readjustment of debt, marshalling of assets or similar debtor relief laws of the
United States, any state or any foreign country from time to time in effect,
affecting the rights of creditors generally.
"Defaulted Receivables" on any Determination Date means all Receivables
(other than Ineligible Receivables and any Designated Ineligible Receivables) in
an Account which are charged off as uncollectible on or prior to such
Determination Date in respect of the immediately preceding Monthly Period in
accordance with Seller's customary and usual servicing procedures for servicing
Dealer receivables comparable to the Receivables which have not been sold to
third parties.
"Designated Ineligible Receivable" means, without duplication, (i) any
Receivable that arises in an Eligible Account but was not an Eligible Receivable
at the time of its transfer to Buyer; (ii) any Receivable that, at the time of
its transfer to Buyer has been SAU or NSF for more than thirty (30) days; and
(iii) those Receivables, the aggregate Outstanding Balance of which, at the time
of transfer of each such Receivable to Buyer, have been SAU or NSF for a period
of one (1) to thirty (30) days but only to the extent that such Receivables'
aggregate Outstanding Balance exceeds [ ] percent ([ ]%) of the Outstanding
Balance of the Principal Receivables owned by the Issuer at the end of such
Monthly Period.
"Designated Participation Interest" is defined in Section 2.6(b).
"Determination Date" means the second Business Day preceding each Payment
Date.
"DFS Trust" means Distribution Financial Services Floorplan Master Trust,
a common-law trust formed pursuant to the Pooling and Security Agreement.
["Discount Factor" means [ ] percent ([ ]%). The Discount Factor may be
adjusted by Seller from time to time upon prior written notice thereof to the
Issuer and the Indenture Trustee; provided, that if after giving effect to such
adjustment, the Discount Factor would exceed [ ] percent ([ ]%), then the Rating
Agency Condition shall be satisfied with respect to any such adjustment.]
"Eligible Account" is defined in the First Tier Agreement.
"Eligible Receivable" is defined in the First Tier Agreement.
"Financing Agreement" means a Wholesale Financing Agreement or Asset Based
Lending Financing Agreement.
"First Tier Agreement" means the Receivables Sale Agreement dated as of [
], 2004 among the Originators and Seller.
"Floorplan Agreement" means an agreement entered into by an Originator and
a Manufacturer establishing certain terms and conditions for the financing of
such Manufacturer's Dealers by such Originator, which may include such
Manufacturer's agreement, among other
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4
matters, to repurchase from, or remarket for, such Originator Products sold by
such Manufacturer to any of its Dealers and financed by such Originator under a
Wholesale Financing Agreement if such Originator acquires possession of such
Products because of a default by such Dealer under such Wholesale Financing
Agreement, whether by repossession, voluntary surrender or other circumstances.
"Floorplan Business" means the extensions of credit made by an Originator
to Dealers in order to finance Products purchased by Dealers from Manufacturers
for sale or lease by such Dealers.
"GAAP" means generally accepted accounting principles in the United States
of America in effect from time to time.
"GE Capital" means General Electric Capital Corporation, a Delaware
corporation.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any agency, department or other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Indenture" means the Master Indenture dated as of [ ], 2004 between
the Issuer and the Indenture Trustee.
"Indenture Supplement" means a supplement to the Indenture executed and
delivered pursuant to the Indenture.
"Indenture Trustee" means Wilmington Trust Company, as indenture trustee
under the Indenture.
"Ineligible Account" means an Account that at the time of determination is
not an Eligible Account.
"Ineligible Receivable" is defined in Section 6.1(c).
"Initial Account" means each individual revolving credit arrangement
established by an Originator with a Dealer which was identified in the Account
Schedule delivered in connection with the execution and delivery of this
Agreement.
"Insurance Proceeds" with respect to an Account means any amounts received
pursuant to any policy of insurance which are required to be paid to an
Originator pursuant to a Wholesale Financing Agreement or Asset Based Lending
Financing Agreement.
"Issuer" means GE Dealer Floorplan Master Note Trust, a Delaware statutory
trust.
"Lien" means any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any lease
or title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of, or agreement to
give, any
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5
financing statement perfecting a security interest under the UCC or comparable
law of any jurisdiction).
"Litigation" means, with respect to any Person, any action, claim,
lawsuit, demand, investigation or proceeding pending or threatened against such
Person before any court, board, commission, agency or instrumentality of any
federal, state, local or foreign government or of any agency or subdivision
thereof or before any arbitrator or panel of arbitrators.
"Manufacturer" means a Person engaged generally in the business of
manufacturing or distributing Products for sale or lease to Dealers in the
ordinary course of business.
"Master Servicer" means GE Capital, in its capacity as master servicer
under the Servicing Agreement, or any other Person designated as a successor
master servicer pursuant to the Servicing Agreement.
"Material Adverse Effect" means, with respect to Seller, a material
adverse effect on (a) the ability of Seller to perform any of its obligations
under the Related Documents in accordance with the terms thereof, (b) the
validity or enforceability of any Related Document or the rights and remedies of
Buyer under any Related Document with respect to Seller, or (c) the Transferred
Receivables (including the collectibility of the Transferred Receivables and the
security interests and other rights securing and supporting the payment of the
Transferred Receivables), the Financing Agreements therefor or the ownership
interests or Liens of Seller or Buyer thereon or the priority of such interests
or Liens.
"Monthly Period" means a calendar month.
"Non-Principal Collections" means the sum of (a) Collections of interest
and all other non-principal charges (including insurance service fees and
handling fees) on the Receivables, (b) the product of (i) principal payments on
the Receivables and (ii) the Discount Factor, and (c) all Recoveries.
"Non-Principal Receivables" with respect to any Account means all amounts
billed to the related Dealer in respect of interest and all other non-principal
charges.
"Noteholder" is defined in the Indenture.
"Note Trust Certificate" means the Note Trust Certificate, Series
2004-NTC, issued pursuant to the Series 2004-NTC Supplement.
"NSF" means, with respect to a Receivable, that a check in payment of such
Receivable has been returned because of insufficient funds and has not
thereafter been paid.
"Officer's Certificate" means, with respect to any Person, a certificate
signed by an Authorized Officer of such Person.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for, or an employee of, the Person providing the opinion.
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6
"Originator" means each of GE Commercial Distribution Finance Corporation,
Transamerica Commercial Finance Corporation and any other originator so
designated pursuant to Section 2.9 of the First Tier Agreement.
"Originator Guaranty" means the Originator Performance Guaranty dated as
of [ ], 2004 made by GE Capital.
"Outstanding Balance" means, with respect to any Principal Receivable, the
outstanding amount of such Principal Receivable; provided, that the Outstanding
Balance of a Defaulted Receivable shall equal zero.
"Participation Agreement" means an agreement between an Originator and a
lender pursuant to which such Originator conveys to such lender an undivided
interest in certain receivables that is pari passu in all respects (other than
nonsubordinated interest strips and fees) with the undivided interest retained
by such Originator.
"Participation Interest" means the undivided interest, created pursuant to
a Participation Agreement, in a receivable in which a Receivable represents the
remaining undivided interest.
"Payment Date" means, except as otherwise specified in any Indenture
Supplement for the Series relating thereto, the twentieth (20(th)) day of each
calendar month, or if the twentieth (20(th)) day is not a Business Day, the next
Business Day.
"Permitted Encumbrances" means the following: (a) Liens for taxes or
assessments or other governmental charges not yet due and payable; (b) inchoate
and unperfected workers', mechanics', suppliers' or similar Liens arising in the
ordinary course of business; (c) presently existing or hereinafter created Liens
in favor of, or created by, Buyer; (d) any Lien created or permitted by any
Related Document; (e) any Lien created by any Participation Agreement; (f) any
security interests in assets that are subordinate to the security interests
securing the related Receivables; and (g) any Dealer Repurchase Option that has
not been exercised by the applicable Dealer.
"Person" means any individual, sole proprietorship, partnership, joint
venture, unincorporated organization, trust (including a business trust),
association, corporation, limited liability company, institution, public benefit
corporation, joint stock company, Governmental Authority or any other entity of
whatever nature.
"Pooling and Servicing Agreement" means the Amended and Restated Pooling
and Servicing, dated as of April 1, 2000, among CDF Financing, L.L.C. (as
successor to Deutsche Floorplan Receivables, L.P.), GE Commercial Distribution
Finance Corporation (formerly known as Deutsche Financial Services Corporation),
and Wilmington Trust Company (as successor to The Chase Manhattan Bank), as
trustee.
"Principal Collections" means Collections other than Non-Principal
Collections. Amounts paid by Seller pursuant to Section 2.5 shall be deemed to
be Principal Collections.
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"Principal Receivable" with respect to an Account means amounts shown on
Seller's records as Receivables (other than such amounts which represent
Non-Principal Receivables) payable by the related Dealer.
"Products" means the commercial and consumer goods financed by an
Originator for Dealers.
"Purchase Date" means the Closing Date and, thereafter, each Business Day.
"Purchase Price" is defined in Section 2.4(a).
"Rating Agency Condition" is defined in the Indenture.
"Reassignment" is defined in Section 2.7(a).
"Receivable" means, with respect to an Account, all amounts payable
(including interest, finance charges and other charges), and the obligation to
pay such amounts, by the related Dealer from time to time in respect of advances
made by an Originator to or on behalf of such Dealer in connection with the
Floorplan Business or the Asset Based Lending Business, as the case may be,
[together with the group of writings evidencing such amounts and the security
interest created in connection therewith and all of the rights, remedies, powers
and privileges thereunder (including under the related Financing Agreement)];
provided, that if a Participation Interest has been created in respect of such
Account, whether before or after such Account has been designated as an Account,
the amounts so payable by the related Dealer that are allocable to such
Participation Interest shall not be part of the "Receivables" in respect of such
Account. A Receivable that, prior to its transfer to Buyer, was subject to a
participation from an Originator in favor of another Originator shall be
considered a Receivable.
"Records" means, with respect to any Receivables, all Financing Agreements
and other documents, books, records and other information (including computer
programs, tapes, disks, data processing software and related property and
rights) relating to such Receivable and the related Dealer.
"Recoveries" on any date means all amounts received, including Insurance
Proceeds, during the Monthly Period immediately preceding such date with respect
to Receivables which have previously become Defaulted Receivables.
"Related Documents" means this Agreement, the First Tier Agreement, the
Trust Agreement, the Servicing Agreement, the Indenture, any Indenture
Supplement and all other pledges, powers of attorney, consents, assignments,
contracts, notices, and all other written matter whether heretofore, now or
hereafter executed by or on behalf of any Person, or any employee of any Person,
and delivered in connection with any of the foregoing or the transactions
contemplated thereby.
"Removed Account" means an Account that is removed from the Account
Schedule in accordance with Section 2.7.
"Removal Date" is defined in Section 2.7(a).
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"Removal Notice Date" is defined in Section 2.7(a).
"Requirements of Law" means, as to any Person, the certificate of
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether federal, state or local.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw -
Hill Companies, Inc.
"SAU" means, with respect to a Receivable, that if such Receivable was
originally secured by a security interest in a Product, such Product has been
sold and such Receivable is not paid in full.
"Seller" means CDF Funding, Inc.
"Series" means a series of notes issued under the Indenture.
"Series 2004-NTC Supplement" means the Series 2004-NTC Supplement, dated
as of the Closing Date, among CDF Financing, L.L.C., GE Commercial Distribution
Finance Corporation, and Wilmington Trust Company, as trustee.
"Servicing Agreement" means the Servicing Agreement dated as of [ ],
2004, between Master Servicer and the Issuer.
"Sub-Servicer" means any Person with whom Master Servicer enters into a
Sub-Servicing Agreement.
"Sub-Servicing Agreement" means any written contract entered into between
Master Servicer and any Sub-Servicer relating to the servicing, administration
or collection of any Transferred Receivables.
"Subsidiary" means, with respect to any Person, any corporation or other
entity (a) of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other Persons
performing similar functions are at the time directly or indirectly owned by
such Person or (b) that is directly or indirectly controlled by such Person
within the meaning of control under Section 15 of the Securities Act of 1933.
"Transfer Date" means, with respect to a Transferred Receivable, the date
on which Buyer acquires such Transferred Receivable from Seller pursuant to
Section 2.1 or any Assignment.
"Transferred Assets" is defined in Section 2.1(a).
"Transferred Receivable" means any Receivable purchased by Buyer from
Seller pursuant to this Agreement or any Assignment, including Principal
Receivables and Non-Principal Receivables that exist at the time of purchase of
any Principal Receivables in the same
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9
Account or that arise in an Account after the date of purchase of Principal
Receivables in the Account. However, Receivables that are repurchased by Seller
pursuant to this Agreement or purchased by Master Servicer pursuant to the
Servicing Agreement shall cease to be considered "Transferred Receivables" from
the date of such purchase.
"Trust Agreement" means the Amended and Restated Trust Agreement dated as
of [ ], 2004, between Seller and The Bank of New York (Delaware), as
trustee.
"UCC" means, with respect to any jurisdiction, the Uniform Commercial Code
as the same may, from time to time, be enacted and in effect in such
jurisdiction.
"United States" means the United States of America, together with its
territories and possessions.
"Wholesale Financing Agreement" means a wholesale financing agreement
entered into by an Originator and a Dealer in order to finance Products
purchased by such Dealer from a Manufacturer.
Section 1.2 Other Interpretive Matters. All terms defined directly or by
incorporation in this Agreement shall have the defined meanings when used in any
certificate or other document delivered pursuant thereto unless otherwise
defined therein. For purposes of this Agreement and all related certificates and
other documents, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in this
Agreement to the extent not defined, shall have the respective meanings given to
them under GAAP; (b) unless otherwise provided, references to any month, quarter
or year refer to a calendar month, quarter or year; (c) terms defined in Article
9 of the UCC as in effect in the applicable jurisdiction and not otherwise
defined in this Agreement are used as defined in that Article; (d) references to
any amount as on deposit or outstanding on any particular date means such amount
at the close of business on such day; (e) the words "hereof," "herein" and
"hereunder" and words of similar import refer to this Agreement (or the
certificate or other document in which they are used) as a whole and not to any
particular provision of this Agreement (or such certificate or document); (f)
references to any Section, Schedule or Exhibit are references to Sections,
Schedules and Exhibits in or to this Agreement (or the certificate or other
document in which the reference is made), and references to any paragraph,
subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or
definition; (g) the term "including" means "including without limitation"; (h)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (i) references to
any agreement refer to that agreement as from time to time amended, restated or
supplemented or as the terms of such agreement are waived or modified in
accordance with its terms; and (j) references to any Person include that
Person's successors and permitted assigns.
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10
ARTICLE II
SALES
Section 2.1 Sales.
(a) By execution of this Agreement, Seller does hereby transfer, assign,
set over and otherwise convey to Buyer, without recourse except as provided
herein, all of Seller's right, title and interest in, to and under, the
following (the "Transferred Assets"): (i) the Receivables existing at the
opening of business on the Closing Date, and thereafter created from time to
time until the Agreement Termination Date, together with the Collateral Security
and Collections with respect thereto and related Recoveries, in each case
together with all monies due or to become due and all amounts received or
receivable with respect thereto and Insurance Proceeds relating thereto, (ii)
without limiting the generality of the foregoing or the following, all of
Seller's rights to receive payments from any Dealer in respect of such
Receivables and (iii) all proceeds of all of the foregoing. The foregoing does
not constitute and is not intended to result in the creation or assumption by
Buyer of any obligation of Seller or any other Person in connection with the
Accounts or the Transferred Receivables or under any agreement or instrument
relating thereto, including any obligation under the Financing Agreements, the
Floorplan Agreements or any Participation Agreement or any obligation to any
Dealer or any Manufacturer. The foregoing conveyance shall be effective (x) on
the Closing Date, as to all Transferred Assets then existing, and (y) on each
Purchase Date, as to all Transferred Assets arising since the prior Purchase
Date.
(b) Seller agrees, at its own expense, (i) on or prior to (x) the Closing
Date, in the case of the Initial Accounts, (y) the applicable Addition Date, in
the case of Additional Accounts, and (z) the applicable Removal Date, in the
case of Removed Accounts, to indicate, or cause to be indicated, in the
appropriate computer files that Receivables created (or reassigned, if
applicable, in the case of Removed Accounts) in connection with the Accounts
have been conveyed to Buyer pursuant to this Agreement (or conveyed to Seller or
its designee, if applicable, in accordance with Section 2.7, in the case of
Removed Accounts) by including, or causing to be included, in such computer
files a code so identifying each such Account (or, in the case of Removed
Accounts, deleting, or causing to be deleted, such code thereafter) and (ii) on
or prior to the date referred to in clauses (i)(x), (y) or (z), as applicable,
to deliver to Buyer an Account Schedule. The initial such Account Schedule, as
supplemented from time to time to reflect Additional Accounts and Removed
Accounts, shall be marked as Schedule 1 to this Agreement and is hereby
incorporated into and made a part of this Agreement. Once the code referenced in
clause (i) of this paragraph has been included with respect to any Account,
Seller further agrees not to permit such code to be altered during the remaining
term of this Agreement unless and until (x) such Account becomes a Removed
Account, or (y) Seller shall have delivered to Buyer at least thirty (30) days'
prior written notice of its intention to do so and has taken such action as is
necessary or advisable to cause the interest of Buyer in the Transferred
Receivables to continue to be perfected with the priority required by this
Agreement.
(c) By execution of this Agreement, Seller does hereby transfer, assign,
set over and otherwise convey to Buyer, as a capital contribution, all of
Seller's right, title and interest in, to and under (i) the Note Trust
Certificate, (ii) without limiting the generality of the foregoing or the
following, all of Seller's rights to receive payments from the DFS Trust in
respect of the Note
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11
Trust Certificate, and (iii) all proceeds of the foregoing. On the Closing Date,
Seller shall deliver to Buyer an instrument of assignment in respect of the Note
Trust Certificate, substantially in the form of the assignment attached to the
Note Trust Certificate, and shall deliver to Buyer a registered certificate
representing the Note Trust Certificate. The foregoing does not constitute and
is not intended to result in the creation or assumption by Buyer of any
obligation of Seller or any other Person in connection with the Note Trust
Certificate.
Section 2.2 Acceptance by Buyer.
(a) Buyer hereby acknowledges its acceptance of all right, title and
interest to the property, now existing and hereafter created, conveyed to Buyer
pursuant to Section 2.1. Buyer shall maintain a copy of Schedule 1, as delivered
to it from time to time.
(b) Buyer hereby agrees not to disclose to any Person any account numbers
or other information contained in the Account Schedule marked as Schedule 1 and
delivered to Buyer, from time to time, except (i) to Master Servicer, any
Sub-Servicer or as required by a Requirement of Law applicable to Buyer, (ii) in
connection with the performance of Buyer's duties hereunder, (iii) to the
Indenture Trustee in connection with its duties or (iv) to bona fide creditors
or potential creditors of Master Servicer or Seller for the limited purpose of
enabling any such creditor to identify Transferred Receivables or Accounts
subject to this Agreement. Buyer agrees to take such measures as shall be
reasonably requested by Seller to protect and maintain the security and
confidentiality of such information and, in connection therewith, shall allow
Seller or its duly authorized representatives to inspect Buyer's security and
confidentiality arrangements from time to time during normal business hours upon
prior written notice. Buyer shall promptly notify Seller of any request received
by Buyer to disclose information of the type described in this Section 2.2(b),
which notice shall in any event be provided no later than five (5) Business Days
prior to disclosure of any such information unless Buyer is compelled pursuant
to a Requirement of Law to disclose such information prior to the date that is
five (5) Business Days after the giving of such notice.
Section 2.3 Characterization of Transfers.
(a) The parties hereto intend that each transfer of the Transferred Assets
by Seller to Buyer shall constitute a sale by Seller to Buyer and not a loan by
Buyer to Seller secured by the Transferred Assets. If, contrary to the intent of
the parties hereto, a court of competent jurisdiction determines that any
transfer of Transferred Assets by Seller to Buyer constitutes a loan and not a
sale of the Transferred Assets, then this Agreement shall constitute a security
agreement under applicable law with respect to the Transferred Assets and Seller
shall be deemed to have granted, and Seller hereby grants, to Buyer a security
interest in and to all of Seller's right, title and interest in, to and under
the Transferred Assets.
(b) The parties hereto intend that the transfer of the Note Trust
Certificate by Seller to Buyer shall constitute a capital contribution by Seller
to Buyer and not a loan by Buyer to Seller secured by the Note Trust
Certificate. If, contrary to the interest of the parties hereto, a court of
competent jurisdiction determines that the transfer of the Note Trust
Certificate by Seller to Buyer constitutes a loan and not a capital
contribution, then this Agreement shall constitute a security agreement under
applicable law with respect to the Note Trust Certificate and Seller
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12
shall be deemed to have granted, and Seller hereby grants, to Buyer a security
interest in all of Seller's right, title and interest in, to and under the Note
Trust Certificate.
Section 2.4 Purchase Price.
(a) The purchase price for the Transferred Receivables and the other
Transferred Assets related thereto shall equal the fair market value of such
Transferred Receivables and other Transferred Assets as agreed upon by Buyer and
Seller prior to such sale (such amount for any Transferred Assets, the "Purchase
Price").
(b) The Purchase Price for any Transferred Assets sold by Seller shall be
payable in full in cash on each Purchase Date or less frequently if so agreed
between Buyer and Seller; provided, however, that Buyer may, with respect to any
sale, offset against such Purchase Price any amounts owed by Seller to Buyer
hereunder and which remain unpaid. On each such Purchase Date or other date set
by the parties for payment, Buyer shall, upon satisfaction of the applicable
conditions set forth in Article III, make available to Seller the Purchase Price
for the applicable Transferred Assets in same day funds.
Section 2.5 Adjustments. If on any day the outstanding amount of any
Principal Receivable is reduced because of a rebate, refund, unauthorized charge
or billing error to a Dealer, or because such Principal Receivable was created
in respect of merchandise which was refused or returned by a Dealer, or if the
outstanding amount of any Principal Receivable is otherwise reduced other than
on account of Collections thereof or such amount being charged-off as
uncollectible, then Seller shall compensate Buyer for such reduction in the
outstanding amount of such Principal Receivable as provided below. Any
adjustment required pursuant to the preceding sentence shall be made not later
than the second Business Day after the Date of Processing for the event giving
rise to such adjustment or less frequently if so agreed between Buyer and
Seller. The amount of each such reduction shall be deducted from the amount of
the Purchase Price payable by Buyer to Seller on the Purchase Date that
coincides with or next follows the date of the adjustment, and Seller shall pay
Buyer on that Purchase Date any excess of the aggregate amount of such
reductions over the aggregate Purchase Price otherwise payable to Seller on that
Purchase Date. Notwithstanding the foregoing, on any Purchase Date the aggregate
amount of such reductions shall be paid gross by Seller to Buyer, without
netting against the Purchase Price, to the extent that Buyer informs Seller that
Buyer requires funds to make payments on account of such reductions under any of
the Related Documents.
Section 2.6 Addition of Accounts.
(a) Additional Accounts. From time to time, Seller may designate
additional Eligible Accounts ("Additional Accounts") to be included as Accounts.
(b) Designated Participation Interests. In lieu of, or in addition to,
designating Additional Accounts as contemplated by subsection (a) above and in
addition to the Note Trust Certificate, Seller may convey to Buyer
participations or additional trust certificates representing undivided or
beneficial interests in a pool of assets primarily consisting of receivables
arising under dealer floorplan loan credit arrangements owned by Seller or any
of its Affiliates and collections thereon ("Designated Participation
Interests"). Seller and Buyer will enter into an
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amendment to this Agreement relating to the conveyance of any Designated
Participation Interest. The Rating Agency Condition shall be satisfied in
connection with any conveyance of a Designated Participation Interest under this
subsection (b).
(c) Conditions for Additions of Additional Accounts. Any sale of
Receivables from Additional Accounts shall occur only upon satisfaction of the
following conditions (to the extent provided below):
(i) on or before the Addition Date, Seller shall have delivered to
Buyer, (x) a written assignment in substantially the form of Exhibit A
(the "Assignment"), and Seller shall indicate in its computer files that
the Receivables created in connection with the Additional Accounts have
been transferred to Buyer, and (y) an Account Schedule reflecting the
addition of such Additional Accounts (which Account Schedule shall be
attached as a schedule to such Assignment);
(ii) Seller shall deliver an Opinion of Counsel with respect to the
Receivables in the Additional Accounts to Buyer (in such numbers and with
such additional addressees as Buyer may reasonably request) substantially
in the form of Exhibit C (with appropriate modifications); and
(iii) Seller shall not make more than one such designation per
Dealer in any one Monthly Period.
Section 2.7 Removal of Accounts.
(a) From time to time, but not more frequently than once during each
Monthly Period for any Dealer, Seller may request (which request Buyer may
deny): (i) the removal of one or more Accounts from the Account Schedule, and
(ii) if any such Account was not an Eligible Account at the time such Account
was originally added to the Account Schedule, the reassignment to Seller or its
designee of all Buyer's right, title and interest in, to and under (A) the
Transferred Receivables then existing and thereafter created in such Account,
(B) the Collateral Security, Collections and Recoveries with respect thereto,
and (C) all monies due or to become due and all amounts received or receivable
with respect thereto and Insurance Proceeds relating thereto. Any such removal
and reassignment shall be subject to the satisfaction of the following
conditions:
(i) on or before the [eleventh] Business Day immediately preceding
the Removal Date (the "Removal Notice Date"), Seller shall have given
Buyer written notice of such request and specifying the date for removal
of the proposed Removed Accounts (the "Removal Date");
(ii) Buyer shall have delivered its written consent for such removal
to Seller;
(iii) on or prior to the Removal Date, Seller shall have delivered
to Buyer a schedule listing the proposed Removed Accounts and a schedule
listing the Accounts that are not proposed to be Removed Accounts (which
schedules shall be attached as schedules to such Reassignment); and
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(iv) Seller shall have delivered to Buyer an Officer's Certificate,
dated as of the Removal Date, to the effect that (i) no selection
procedure believed by Seller to be materially adverse to the interest of
Buyer or any of its creditors has been used in removing Removed Accounts;
and (ii) Accounts (or administratively convenient groups of Accounts) were
chosen for removal on a random basis or another basis not involving
adverse selection that Seller believes is consistent with achieving
derecognition of the Transferred Receivables under GAAP.
Upon satisfaction of the above conditions (and subject to receipt by Buyer
of the reassignment price agreed upon between Buyer and Seller): (i) Buyer shall
execute and deliver to Seller or its designee a written reassignment in
substantially the form of Exhibit B (the "Reassignment"); (ii) the Account
Schedule shall be deemed to have been amended to remove such Removed Accounts;
and (iii) if such Removed Accounts were not Eligible Accounts at the time such
Accounts were originally designated as Accounts, Buyer shall, without further
action, be deemed to transfer, assign, set over and otherwise convey to Seller
or its designee, effective as of the Removal Date, without recourse,
representation or warranty, all the right, title and interest of Buyer in and to
the Transferred Receivables arising in such Removed Accounts, the Collateral
Security and Collections and Recoveries with respect thereto, and all monies due
or to become due and all amounts received or receivables with respect thereto
and Insurance Proceeds relating thereto and all proceeds of the foregoing). In
addition, Buyer shall execute such other documents and instruments of transfer
or assignment and take such other actions as shall reasonably be requested by
Seller to effect the conveyance of Transferred Receivables pursuant to clause
(iii) of the previous sentence.
Section 2.8 Additional Sellers. Seller may consent to the designation of
additional or substitute Persons to be included as "Sellers" under the First
Tier Agreement by an amendment to the First Tier Agreement upon Buyer's consent.
Section 2.9 Additional Originators. Seller may consent to the designation
of additional Persons as "Originators" under the First Tier Agreement by an
amendment to the First Tier Agreement upon Buyer's consent.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions to Initial Transfer. The initial sale or conveyance
hereunder shall be subject to satisfaction of each of the following conditions
precedent (any one or more of which may be waived in writing by Buyer) as of the
Closing Date:
(a) Documents. This Agreement or counterparts hereof shall have been duly
executed by, and delivered to, Seller and Buyer, and Buyer shall have received
such documents, instruments, agreements and legal opinions as Buyer shall
reasonably request in connection with the transactions contemplated by this
Agreement, each in form and substance reasonably satisfactory to Buyer.
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(b) Governmental Approvals. Buyer shall have received satisfactory
evidence that Seller has obtained all consents and approvals of all Persons,
including all requisite Governmental Authorities, if any, required for Seller to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby.
(c) Compliance with Laws. Seller shall be in compliance with all
applicable foreign, federal, state and local laws and regulations, except to the
extent that the failure to so comply, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
Section 3.2 Conditions to all Transfers. Each sale by Seller hereunder
(including the initial sale) shall be subject to satisfaction of the following
further conditions precedent (any one or more of which, except clause (b) below,
may be waived in writing by Buyer) as of the Transfer Date therefor:
(a) the representations and warranties of Seller contained herein or in
any other Related Document required to be made on such Transfer Date shall be
true and correct in all material respects as of such Transfer Date, both before
and after giving effect to such sale; and
(b) Seller shall be in compliance in all material respects with each of
its covenants and other agreements set forth herein.
The consummation by Seller of the sale, as applicable, of Transferred Assets on
any Transfer Date shall be deemed to constitute, as of any such Transfer Date, a
representation and warranty by Seller that the conditions in clauses (a) and (b)
of this Section 3.2 have been satisfied as of such Transfer Date.
ARTICLE IV
OTHER MATTERS RELATING TO SELLER
Section 4.1 Merger or Consolidation of, or Assumption of the Obligations
of, Seller, etc.
(a) Seller shall not consolidate with or merge into any other Person or
convey or transfer its properties and assets substantially as an entirety to any
Person (other than, in the case of a conveyance or transfer of assets, to Buyer)
unless:
(i) the Person formed by such consolidation or into which Seller is
merged or the Person (other than Buyer) which acquires by conveyance or
transfer the properties and assets of Seller substantially as an entirety
shall be, if Seller is not the surviving entity, an entity organized and
existing under the laws of the United States of America or any State or
the District of Columbia, and, if Seller is not the surviving entity, such
entity shall expressly assume, by an agreement supplemental hereto,
executed and delivered to Buyer, in form reasonably satisfactory to Buyer,
the performance of every covenant and obligation of Seller hereunder;
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(ii) Seller has delivered to Buyer (A) an Officer's Certificate
stating that such consolidation, merger, conveyance or transfer and such
supplemental agreement comply with this Section and that all conditions
precedent herein provided for relating to such transaction have been
complied with, and (B) an Opinion of Counsel to the effect that such
supplemental agreement is a valid and binding obligation of such surviving
entity enforceable against such surviving entity in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally from time to time in effect and
except as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity);
(iii) if Seller is not the surviving entity, the surviving entity
shall file a new UCC financing statement with respect to the interest of
Buyer in the Transferred Assets, if any; and
(iv) prior written notice shall have been delivered to Buyer with
respect to such merger, conveyance or transfer.
(b) This Section 4.1 shall not be construed to prohibit or in any way
limit Seller's ability to effectuate any consolidation or merger pursuant to
which Seller would be the surviving entity.
(c) The obligations of Seller hereunder shall not be assignable nor shall
any Person succeed to the obligations of Seller hereunder except in each case in
accordance with (i) the provisions of the foregoing paragraphs, (ii) Section 2.8
or (iii) conveyances, mergers, consolidations, assumptions, sales or transfers
to other entities (1) for which Seller delivers an Officer's Certificate to
Buyer indicating that Seller reasonably believes that such action will not
result in a Material Adverse Effect, (2) which meet the requirements of clause
(ii) of paragraph (a) and (3) for which such purchaser, transferee, pledgee or
entity shall expressly assume, in an agreement supplemental hereto, executed and
delivered to Buyer in writing in form satisfactory to Buyer, the performance of
every covenant and obligation of Seller thereby conveyed.
ARTICLE V
BANKRUPTCY EVENTS
Section 5.1 Rights upon the Occurrence of a Bankruptcy Event. If a
Bankruptcy Event occurs with respect to Seller, Seller shall on the day any such
event occurs, immediately cease to transfer Receivables to Buyer and shall
promptly give notice of such event to the Indenture Trustee and Buyer.
Notwithstanding any cessation of the transfer to Buyer of additional
Receivables, Receivables transferred to Buyer prior to the occurrence of such
Bankruptcy Event, and Collections in respect of such Receivables, shall continue
to be property of Buyer.
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ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.1 Representations and Warranties of Seller.
(a) To induce Buyer to accept the Transferred Assets and the Note Trust
Certificate, Seller makes the following representations and warranties to Buyer,
as of the Closing Date (in the case of Seller) and, to the extent applicable, on
each subsequent Transfer Date following the date on which Seller became Seller.
(i) Valid Existence; Power and Authority. Seller (A) is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization; (B) is duly qualified to conduct business
and is in good standing in each other jurisdiction where its ownership or
lease of property or the conduct of its business requires such
qualification and where the failure to be so qualified or in good standing
would have a Material Adverse Effect; and (C) has all requisite power and
authority to execute, deliver and perform its obligations under this
Agreement.
(ii) UCC Information. The true legal name of Seller as registered in
the jurisdiction of its organization and the current location of Seller's
jurisdiction of organization are set forth in Schedule 6.1(a)(ii) and such
name and location have not changed within the past twelve (12) months. In
addition, Schedule 6.1(a)(ii) lists Seller's (A) federal employer
identification number and (B) organizational identification number as
designated by the jurisdiction of its organization.
(iii) Authorization of Transaction; No Violation. The execution,
delivery and performance by Seller of this Agreement and the other Related
Documents to which Seller is a party and the creation and perfection of
all Liens and ownership interests provided for herein: (A) have been duly
authorized by all necessary action on the part of Seller, and (B) do not
violate any provision of any law or regulation of any Governmental
Authority, or contractual or restrictions binding on Seller, except where
such violations, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
(iv) Enforceability. On or prior to the Closing Date, each of the
Related Documents to which Seller is a party shall have been duly executed
and delivered by Seller and each such Related Document shall then
constitute a legal, valid and binding obligation of Seller enforceable
against it in accordance with its terms, subject to bankruptcy,
receivership, conservatorship, insolvency, reorganization, moratorium and
other similar laws of general applicability relating to or affecting
creditors' rights and to general principles of equity.
(v) Accuracy of Certain Information. All written factual information
heretofore furnished by Seller to Buyer with respect to the Transferred
Receivables or the Note Trust Certificate for the purposes of, or in
connection with, this Agreement was true
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and correct in all material respects on the date as of which such
information was stated or certified.
(vi) Use of Proceeds. No proceeds received by Seller under this
Agreement will be used by it for any purpose that violates Regulation U of
the Federal Reserve Board.
(vii) Transferred Receivables and Note Trust Certificate. With
respect to each Transferred Receivable transferred by Seller to Buyer
pursuant to this Agreement, Seller represents and warrants that as of the
Transfer Date for such Transferred Receivable (and as of the Closing Date
with respect to the Note Trust Certificate):
(A) such Transferred Receivable satisfies the criteria for an
Eligible Receivable as of such Transfer Date;
(B) all authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority
required to be obtained, effected or given by Seller in connection
with the conveyance by Seller of such Transferred Receivable and the
Note Trust Certificate to Buyer have been duly obtained, effected or
given and are in full force and effect; and
(C) the additional representations and warranties set forth in
Schedule 6.1(a)(vii) are true and correct.
The representations and warranties described in this Section 6.1(a) shall
survive the sale of the Transferred Assets and the Note Trust Certificate to
Buyer, any subsequent assignment or sale of the Transferred Assets by Buyer, and
the termination of this Agreement the Series 2004-NTC Supplement and the other
Related Documents and shall continue until the payment in full of all
Transferred Assets and the Note Trust Certificate.
(b) Upon discovery by Seller or Buyer of a breach of any of the
representations and warranties by Seller set forth in this Section 6.1, the
party discovering such breach shall give prompt written notice to the other.
Seller agrees to cooperate with Buyer in attempting to cure any such breach.
(c) If any representation or warranty of Seller contained in Section
6.1(a)(vii) is not true and correct in any material respect as of the date
specified therein with respect to any Transferred Receivable or any Account and
as a result of such breach Buyer's interest in such Transferred Receivable or
Account is materially and adversely affected, including if Buyer's rights in, to
or under such Transferred Receivables or the proceeds of such Transferred
Receivables are impaired or such proceeds are not available for any reason to
Buyer free and clear of any Lien other than Permitted Encumbrances, unless cured
within sixty (60) days (or such longer period, not in excess of one hundred
twenty (120) days, as may be agreed to by Buyer) after the earlier to occur of
the discovery thereof by Seller or receipt by Seller of notice thereof given by
Buyer, then such Transferred Receivable shall be designated an "Ineligible
Receivable;" provided, that such Transferred Receivables will not be deemed to
be Ineligible Receivables but will be deemed Eligible Receivables if, on any day
prior to the end of such sixty
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(60) day or longer period, (i) the relevant representation and warranty shall be
true and correct in all material respects as if made on such day and (ii) Seller
shall have delivered an Officer's Certificate describing the nature of such
breach and the manner in which the relevant representation and warranty became
true and correct. A Transferred Receivable shall be deemed to become an
Ineligible Receivable if the Dealer relating to such Receivable exercises a
Dealer Repurchase Option with respect thereto.
(d) On the first Purchase Date that coincides with or falls after the date
on which any Transferred Receivable is designated as an Ineligible Receivable,
Seller shall repurchase such Ineligible Receivable from Buyer as provided below.
The purchase price for the Ineligible Receivables in any Account shall equal the
Purchase Price paid for such Ineligible Receivables, less any Principal
Collections received on that Receivable from the Closing Date or relevant
Transfer Date, as applicable. On any Purchase Date the aggregate amount of such
repurchase prices then payable may be netted against the Purchase Price then
payable, unless Buyer informs Seller that Buyer requires funds to make payments
on account of the related Ineligible Receivables under any of the Related
Documents, in which case such amounts shall be paid gross.
(e) If any representation or warranty of Seller contained in Section
6.1(a)(i), 6.1(a)(ii), 6.1(a)(iii) or 6.1(a)(iv) of this Agreement is not true
and correct in any material respect and such breach has a material adverse
effect on the Transferred Receivables transferred to Buyer by Seller or the
availability of the proceeds thereof to Buyer, Seller shall be obligated to
accept a reassignment of the Transferred Receivables if such breach and any
material adverse effect caused by such breach is not cured within sixty (60)
days (or within such longer period, not in excess of one hundred fifty (150)
days, as may be agreed to by Buyer), after the earlier to occur of the discovery
thereof by Seller or receipt by Seller of notice thereof given by Buyer, on the
terms set forth below; provided, that such Transferred Receivables will not be
reassigned to Seller if, on any day prior to the end of such sixty (60) day or
longer period (i) the relevant representation and warranty shall be true and
correct in all material respects as if made on such day and (ii) Seller shall
have delivered an Officer's Certificate describing the nature of such breach and
the manner in which the relevant representation and warranty became true and
correct. In connection with a reassignment pursuant to the preceding sentence,
Seller shall pay to Buyer in immediately available funds not later than 12:00
noon, New York City time, on the first Payment Date following the Monthly Period
in which such reassignment obligation arises, in payment for such reassignment,
an amount equal to the Aggregate Reassignment Amount. The payment of such
deposit amount in immediately available funds shall otherwise be considered
payment in full of all of the Transferred Receivables.
(f) Upon the payment, if any, required to be made to Buyer as provided in
Section 6.1(d) or 6.1(e), Buyer shall automatically and without further action
be deemed to transfer, assign, set over and otherwise convey to Seller or its
designee, without recourse, representation or warranty, all the right, title and
interest of Buyer in and to the applicable Transferred Receivables, all moneys
due or to become due and all amounts received with respect thereto and all
proceeds thereof. Buyer shall execute such documents and instruments of transfer
or assignment and take such other actions as shall reasonably be requested by
Seller to effect the conveyance of such Transferred Receivables pursuant to this
Section.
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Section 6.2 Affirmative Covenants of Seller. Seller severally covenants
and agrees that, unless otherwise consented to by Buyer, from and after the
Closing Date (or the relevant Transfer Date, as applicable) and until the date
after the Agreement Termination Date when the Outstanding Balance of all
Transferred Receivables have been reduced to zero:
(a) Account Allocations. If Seller is unable for any reason to transfer
Transferred Receivables to Buyer in accordance with the provisions of this
Agreement (including by reason of the application of the provisions of Section
5.1 or an order by any Governmental Authority that Seller not transfer any
additional Receivables to Buyer) then, in any such event, Seller agrees to
allocate and pay to Buyer or Master Servicer on its behalf, after the date of
such inability, all Collections with respect to Transferred Receivables
previously sold by Seller to Buyer.
(b) Notice of Material Event. Seller shall promptly inform Buyer in
writing of the occurrence of any of the following with respect to Seller, in
each case setting forth the details thereof and what action, if any, Seller
proposes to take with respect thereto:
(i) any Litigation commenced or threatened against Seller or with
respect to or in connection with all or any substantial portion of the
Transferred Assets or with respect to the Note Trust Certificate or
developments in such Litigation, in each case, that Seller believes has a
reasonable risk of being determined adversely and having a Material
Adverse Effect;
(ii) the commencement of a proceeding against Seller seeking a
decree or order in respect of Seller (A) under any Debtor Relief Laws, (B)
appointing a custodian, receiver, liquidator, assignee, trustee or
sequestrator (or similar official) for Seller or for any substantial part
of Seller's assets, or (C) ordering the winding-up or liquidation of the
affairs of Seller; or
(iii) Seller's failure to comply with any of its obligations under
this Agreement.
(c) Notice of Liens. Seller shall notify Buyer promptly after becoming
aware of any Lien on any Transferred Asset or on the Note Trust Certificate
other than Permitted Encumbrances.
(d) Information for Reports. Seller shall promptly deliver any material
written information, documents, records or reports with respect to the
Transferred Receivables or the Note Trust Certificate that Buyer shall
reasonably request.
(e) Deposit of Collections. Seller shall transfer to Buyer or Master
Servicer on its behalf, promptly, and in any event no later than the Business
Day after receipt thereof, all Collections it may receive in respect of
Transferred Assets.
(f) Financing Agreements and Policies. Seller shall comply with and
perform its obligations under the Financing Agreements relating to the Accounts
and the Credit and Collection Policies except insofar as any failure to comply
or perform would not materially and adversely affect the rights of Buyer.
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Section 6.3 Negative Covenants of Seller. Seller severally covenants and
agrees that, without the prior written consent of Buyer, from and after the
Closing Date (or the relevant Transfer Date, as applicable) and until the date
after the Agreement Termination Date when the Outstanding Balances of all
Transferred Receivables transferred hereunder prior to such Agreement
Termination Date have been reduced to zero:
(a) Liens. Seller shall not create, incur, assume or permit to exist any
Lien, other than Permitted Encumbrances, on or with respect to the Transferred
Assets or the Note Trust Certificate.
(b) Amendments to Financing Agreements and Credit and Collection Policies.
[Seller shall not amend the Financing Agreements; provided, that this sentence
shall not prevent Seller from assigning its rights in a Financing Agreement to
another Seller. Seller shall not amend its Credit and Collection Policies if
such amendment would be adverse in any material respect to Buyer].
(c) UCC Matters. Seller shall not change its state of organization or
formation or its name such that any financing statement filed to perfect Buyer's
interests under this Agreement would become seriously misleading, unless Seller
shall have given Buyer not less than thirty (30) days' prior written notice of
such change.
(d) No Proceedings. From and after the Closing Date and until the date one
(1) year plus one (1) day following the date on which all amounts due with
respect to securities rated by a rating agency that were issued by any entity
holding Transferred Assets or an interest therein have been paid in full in
cash, Seller shall not, directly or indirectly, institute or cause to be
instituted against Buyer any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceeding or other proceeding under any Debtor Relief Laws;
provided, that the foregoing shall not in any way limit Seller's right to pursue
any other creditor rights or remedies that Seller may have under any applicable
law.
(e) Characterization of Sales and Contributions. For accounting purposes,
Seller shall not account for the transactions contemplated by this Agreement in
any manner other than, with respect to the sale of each Transferred Receivable,
as a true sale and absolute assignment of its full right, title and ownership
interest in the related Transferred Assets to Buyer For accounting purposes,
Seller shall not account for its transfer of the Note Trust Certificate to Buyer
in any manner other than a capital contribution and absolute assignment of its
full right, title and ownership interest in the Note Trust Certificate to Buyer.
Seller shall also maintain its records and books of account in a manner which
clearly reflects each such sale of the Transferred Receivables to Buyer and its
capital contribution of the Note Trust Certificate to Buyer.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any party hereto
by any other party hereto, or whenever
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any party hereto desires to give or serve upon any other party hereto any
communication with respect to this Agreement, each such notice, demand, request,
consent, approval, declaration or other communication shall be in writing and
shall be deemed to have been validly served, given or delivered (a) upon the
earlier of actual receipt and three (3) Business Days after deposit in the
United States mail, registered or certified mail, return receipt requested, with
proper postage prepaid, (b) upon transmission, when sent by telecopy or other
similar facsimile transmission (with such telecopy or facsimile promptly
confirmed by delivery of a copy by personal delivery or United States mail as
otherwise provided in this Section 7.1), (c) one (1) Business Day after deposit
with a reputable overnight courier with all charges prepaid or (d) when
delivered, if hand-delivered by messenger, all of which shall be addressed to
the party to be notified and sent to the address or facsimile number set forth
below or to such other address (or facsimile number) as may be substituted by
notice given as herein provided. The giving of any notice required hereunder may
be waived in writing by the party entitled to receive such notice. Failure or
delay in delivering copies of any notice, demand, request, consent, approval,
declaration or other communication to any Person (other than Buyer) designated
in any written communication provided hereunder to receive copies shall in no
way adversely affect the effectiveness of such notice, demand, request, consent,
approval, declaration or other communication. Notwithstanding the foregoing,
whenever it is provided herein that a notice is to be given to any other party
hereto by a specific time, such notice shall be effective only if actually
received by such party prior to such time, and if such notice is received after
such time or on a day other than a Business Day, such notice shall be effective
only on the immediately succeeding Business Day.
If to Seller:
CDF Funding, Inc.
1600 Summer Street, 4th Floor
Stamford, CT 06927
Attention: Manager - Securitization
Telephone: (203) 357-4756
Facsimile: (203) 357-6796
With a copy to:
General Electric Capital Corporation
1600 Summer Street, 4th Floor
Stamford, CT 06927
Attention: Portfolio Manager
Telephone: (203) 357-4328
Facsimile: (203) 961-2953
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If to Buyer:
GE Dealer Floorplan Master Note Trust
c/o The Bank of New York (Delaware), as Trustee
101 Barclay Street, Floor 8 West (ABS Unit)
New York, NY 10286
Attention: Antonio Vayas
Telephone: (212) 815-8322
Telecopy: (212) 815-2493 or 3883
With a copy to:
General Electric Capital Corporation, as Administrator
1600 Summer Street, 4th Floor
Stamford, CT 06927
Attention: Manager, Securitizations
Telephone: (203) 357-4328
Telecopy: (203) 961-2953
Section 7.2 No Waiver; Remedies.
(a) The failure of any party hereto, at any time or times, to require
strict performance by any other party hereto of any provision of this Agreement
shall not waive, affect or diminish any right of such party thereafter to demand
strict compliance and performance with this Agreement. Any suspension or waiver
of any breach or default hereunder shall not suspend, waive or affect any other
breach or default whether the same is prior or subsequent thereto and whether of
the same or a different type. None of the undertakings, agreements, warranties,
covenants and representations of any party contained in this Agreement, and no
breach or default by any party under this Agreement, shall be deemed to have
been suspended or waived or amended by any other party hereto unless such waiver
or suspension or amendment is by an instrument in writing signed by an officer
of or other duly authorized signatory of such party and, in the case of a
suspension or waiver, directed to the defaulting party specifying such
suspension or waiver.
(b) Each party's rights and remedies under this Agreement shall be
cumulative and nonexclusive of any other rights and remedies that such party may
have under any other agreement, including the other Related Documents, by
operation of law or otherwise.
Section 7.3 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of Seller and Buyer and their respective
successors and permitted assigns, except as otherwise provided herein. Except as
provided below and in Sections 2.8 or 4.1 of this Agreement, Seller may not
assign, transfer, hypothecate or otherwise convey its rights, benefits,
obligations or duties hereunder without having obtained the prior express
written consent of Buyer. Any such purported assignment, transfer, hypothecation
or other conveyance by Seller without the prior express written consent of Buyer
shall be void. Seller acknowledges that under the Indenture, Buyer will grant
security interests in its rights granted hereunder to the Indenture Trustee, on
behalf of the Noteholders, and upon the exercise of remedies with respect to
such
Receivables Purchase and
Contribution Agreement
24
security interests, the Indenture Trustee, on behalf of the Noteholders, shall
have, to the extent of such grant, all rights of Buyer hereunder and the
Indenture Trustee may in turn transfer such rights. The terms and provisions of
this Agreement are for the purpose of defining the relative rights and
obligations of Seller and Buyer with respect to the transactions contemplated
hereby and no Person shall be a third-party beneficiary of any of the terms and
provisions of this Agreement.
Section 7.4 Termination. This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms, and
shall remain in full force and effect until the earlier of (a) the termination
of the Issuer and (b) the date selected by Seller upon prior notice thereof to
Buyer (such date, the "Agreement Termination Date").
Section 7.5 Survival. Except as otherwise expressly provided herein or in
any other Related Document, no termination or cancellation (regardless of cause
or procedure) of any agreement made by Seller under this Agreement shall in any
way affect or impair the obligations, duties and liabilities of Seller or the
rights of Seller relating to any unpaid portion of any and all obligations of
Seller to Buyer, due or not due, liquidated, contingent or unliquidated or any
transaction or event occurring prior to such termination, or any transaction or
event, the performance of which is required after the Agreement Termination
Date. Except as otherwise expressly provided herein or in any other Related
Document, all undertakings, agreements, covenants, warranties and
representations of or binding upon Seller, and all rights of Seller hereunder
shall not terminate or expire, but rather shall survive any such termination or
cancellation and shall continue in full force and effect until the date after
the Agreement Termination Date when the Outstanding Balances of all Transferred
Receivables transferred hereunder prior to such Agreement Termination Date have
been reduced to zero; provided, that the rights and remedies pursuant to the
provisions of Sections 2.5, 6.3(d), 7.3, 7.11 and 7.12 shall be continuing and
shall survive any termination of this Agreement.
Section 7.6 Complete Agreement; Modification of Agreement. This Agreement
constitutes the complete agreement between the parties with respect to the
subject matter hereof, supersedes all prior agreements and understandings
relating to the subject matter hereof and thereof, and may not be modified,
altered or amended except by written agreement of the parties hereto.
Section 7.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL
RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS
THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
Receivables Purchase and
Contribution Agreement
25
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL
COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF
MANHATTAN IN NEW YORK CITY; PROVIDED, FURTHER, THAT NOTHING IN THIS AGREEMENT
SHALL BE DEEMED OR OPERATE TO PRECLUDE BUYER FROM BRINGING SUIT OR TAKING OTHER
LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE RECEIVABLES OR ANY
SECURITY FOR THE OBLIGATIONS OF SELLER ARISING HEREUNDER OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF BUYER. EACH PARTY HERETO SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY
SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY
MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF
AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL
SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR
SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS
DETERMINED IN ACCORDANCE WITH SECTION 7.1 AND THAT SERVICE SO MADE SHALL BE
DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR
THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID.
NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS
ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON
AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN
ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A
JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION
OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO
WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO
RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Receivables Purchase and
Contribution Agreement
26
Section 7.8 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement.
Section 7.9 Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
Section 7.10 Section Titles. The section titles and table of contents
contained in this Agreement are provided for ease of reference only and shall be
without substantive meaning or content of any kind whatsoever and are not a part
of the agreement between the parties hereto.
Section 7.11 No Setoff. Seller's obligations under this Agreement shall
not be affected by any right of setoff, counterclaim, recoupment, defense or
other right Seller might have against Buyer, all of which rights are hereby
expressly waived by Seller.
Section 7.12 Further Assurances.
(a) Seller shall, at its sole cost and expense, upon request of Buyer,
promptly and duly authorize, execute and/or deliver, as applicable, any and all
further instruments and documents and take such further actions that Buyer may
reasonably request to carry out more effectively the provisions and purposes of
this Agreement or to obtain the full benefits of this Agreement and of the
rights and powers herein granted, including authorizing and filing any financing
or continuation statements under the UCC with respect to the ownership interest
of Buyer created by this Agreement. Seller hereby authorizes Buyer to file any
such financing or continuation statements without the signature of Seller to the
extent permitted by applicable law. A carbon, photographic or other reproduction
of this Agreement or of any notice or financing statement covering the
Transferred Assets or any part thereof shall be sufficient as a notice or
financing statement where permitted by law. If any amount payable under or in
connection with any of the Transferred Assets is or shall become evidenced by
any instrument, such instrument, other than checks and notes received in the
ordinary course of business, shall be duly endorsed in a manner satisfactory to
Buyer immediately upon Seller's receipt thereof and promptly delivered to or at
the direction of Buyer.
(b) If Seller fails to perform any agreement or obligation under this
Section 7.12, Buyer may (but shall not be required to) itself perform, or cause
performance of, such agreement or obligation, and the reasonable expenses of
Buyer incurred in connection therewith shall be payable by Seller upon demand of
Buyer.
(c) Seller hereby authorizes Buyer to file one or more UCC financing
statements, naming Seller as debtor, Buyer as secured party, and the Indenture
Trustee as total assignee of assignor/secured party, and covering all of the
following property of Seller, whether now owned or hereafter acquired or coming
into existence and wherever located: (i) all accounts, chattel paper, commercial
tort claims, deposit accounts, documents, general intangibles (including payment
intangibles and software), goods (including fixtures, equipment and inventory),
instruments, investment property, letter-of-credit rights, letters of credit,
money, and oil, gas or
Receivables Purchase and
Contribution Agreement
27
other minerals before extraction, (ii) all supporting obligations; (iii) all
other personal property of any nature or type; (iv) all accessions to,
substitutions for or replacements of any of the property described in clause
(i), clause (ii) or clause (iii); and (v) all products or proceeds of each or
any of the foregoing.
Section 7.13 Accounting Changes. If any Accounting Changes occur and such
changes result in a change in the standards or terms used herein, then the
parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such Accounting Changes with the desired
result that the criteria for evaluating the financial condition of such Persons
and their Subsidiaries shall be the same after such Accounting Changes as if
such Accounting Changes had not been made. If the parties hereto agree upon the
required amendments to this Agreement, then after appropriate amendments have
been executed and the underlying Accounting Change with respect thereto has been
implemented, any reference to GAAP contained herein shall, only to the extent of
such Accounting Change, refer to GAAP consistently applied after giving effect
to the implementation of such Accounting Change. If such parties cannot agree
upon the required amendments within thirty (30) days following the date of
implementation of any Accounting Change, then all financial statements delivered
and all standards and terms used herein shall be prepared, delivered and used
without regard to the underlying Accounting Change.
Section 7.14 No Indirect or Consequential Damages. NO PARTY TO THIS
AGREEMENT SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS AGREEMENT,
ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER
PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF ANY
TRANSACTION CONTEMPLATED HEREUNDER.
Section 7.15 No Proceedings. From and after the Closing Date and until the
date one year plus one day following the date on which all amounts due with
respect to securities rated by a rating agency that were issued by any entity
holding Transferred Assets or an interest therein have been paid in full in
cash, Buyer shall not, directly or indirectly, institute or cause to be
instituted against Seller any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceeding under any federal or
state bankruptcy or similar law; provided that the foregoing shall not in any
way limit Buyer's right to pursue any other creditor rights or remedies that
Buyer may have under any applicable law.
[SIGNATURES FOLLOW]
Receivables Purchase and
Contribution Agreement
28
IN WITNESS WHEREOF, Seller and Buyer have caused this Receivables Purchase
and Contribution Agreement to be duly executed as of the day and year first
above written.
CDF FUNDING, INC., as Seller
By:____________________________________
Name:__________________________________
Title:_________________________________
Receivables Purchase and
Contribution Agreement
S-1
GE DEALER FLOORPLAN MASTER NOTE TRUST,
as Buyer
By The Bank of New York (Delaware), not
in its individual capacity, but solely
as Trustee on behalf of Buyer
By:____________________________________
Name:__________________________________
Title:_________________________________
Receivables Purchase and
Contribution Agreement
S-2
SCHEDULE 1
LIST OF ACCOUNTS
The initial Account Schedule consists of [a compact disk] delivered to
Buyer and Indenture Trustee listing Accounts and related information as of [ ],
2004.
Receivables Purchase and
Contribution Agreement
Sch.1-1
SCHEDULE 6.1(a)(ii)
UCC INFORMATION
Legal Name
CDF Funding, Inc.
Jurisdiction of Organization
Delaware
Address of Chief Executive Office
5595 Trillium Boulevard
Hoffman Estates, Illinois, 60192
Federal Employer Identification Number
20-1060484
Organizational Identification Number
3761628
Receivables Purchase and
Contribution Agreement
SCHEDULE 6.1(a)(ii)-1
SCHEDULE 6.1(a)(vii)
PERFECTION REPRESENTATIONS AND WARRANTIES
1. General. This Agreement creates a valid and continuing ownership
interest in Buyer with respect to all of Seller's right, title and interest in,
to and under the Transferred Assets and the Note Trust Certificate which (a) is
enforceable against creditors of and purchasers from Seller, as such
enforceability may be limited by applicable law, now or hereafter in effect, and
by general principles of equity (whether considered in a suit at law or in
equity), and (b) will be prior to all other Liens (other than Permitted
Encumbrances) in such property (in the case of the Note Trust Certificate, upon
Buyer obtaining and maintaining possession of the Note Trust Certificate).
2. Characterization. The Receivables constitute "accounts", "general
intangibles" or "chattel paper" within the meaning of the UCC. The Note Trust
Certificate constitutes a "general intangible" or an "instrument" or a
"certificated security" within the meaning of the UCC.
3. Creation. Immediately prior to its conveyance of the Transferred Assets
and the Note Trust Certificate, as the case may be, pursuant to this Agreement,
Seller owns and has good and marketable title to such Transferred Assets and the
Note Trust Certificate, as the case may be, free and clear of any Lien, claim or
encumbrance of any Person (other than Permitted Encumbrances).
4. Perfection. Seller has caused, or will have caused within (10) days
after the Closing Date, the filing of all appropriate financing statements in
the proper filing office in the appropriate jurisdictions under applicable law
in order to perfect Buyer's ownership of such Transferred Assets and the Note
Trust Certificate.
5. Priority. Other than the ownership interests transferred to Buyer
pursuant to this Agreement, Seller has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the Transferred Assets or the
Note Trust Certificate except as permitted by this Agreement. Seller has not
authorized the filing of and is not aware of any financing statements against
Seller that include a description of collateral covering the Transferred Assets
or the Note Trust Certificate other than any financing statement (i) in favor of
Buyer and its assignees, (ii) that has been terminated, or (iii) that has been
granted pursuant to the terms of the Related Documents. None of the tangible
chattel paper that constitutes or evidences the Receivables, nor the Note Trust
Certificate, has any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than Buyer. Seller is not
aware of any judgment lien, ERISA lien or tax lien filings against it.
6. Survival of Perfection Representations. Notwithstanding any other
provision of this Agreement or any other Related Document, the representations
contained in this Schedule 6.1(a)(vii) shall be continuing and remain in full
force and effect in the case of the Transferred Assets, until the Transferred
Receivables have been paid in full, and in the case of the Note Trust
Certificate, until the Note Trust Certificate has been retired.
Receivables Purchase and
Contribution Agreement
Sch. 6.1(a)(vii)-1
7. No Waiver. The parties to this Agreement: (i) shall not, without the
consent of the other parties, waive any of the representations and warranties in
this Schedule 6.1(a)(vii) (the "Perfection Representations"); (ii) shall provide
the other parties with prompt written notice of any breach of the Perfection
Representations, and shall not, without the consent of S&P (if S&P is then
rating any outstanding Series) waive a breach of any of the Perfection
Representations.
8. Seller to Maintain Perfection and Priority. Seller covenants that, in
order to evidence the interests of Seller and Buyer under this Agreement, Seller
shall take such action, or execute and deliver such instruments (other than
effecting a Filing (as defined below), unless such Filing is effected in
accordance with this paragraph) as may be necessary or advisable (including such
actions as are requested by Buyer) to maintain and perfect, as a first priority
interest, Buyer's ownership of the Transferred Assets and the Note Trust
Certificate. Seller shall, from time to time and within the time limits
established by law, prepare and present to Buyer for Buyer to authorize (based
in reliance on the Opinion of Counsel hereinafter provided for in this
paragraph) Seller to file, all financing statements, amendments, continuations,
financing statements in lieu of a continuation statement, terminations, partial
terminations, releases or partial releases, or any other filings necessary or
advisable to continue, maintain and perfect Buyer's ownership of the Transferred
Assets and the Note Trust Certificate as a first-priority interest (each a
"Filing"). Seller shall present each such Filing to Buyer together with (x) an
Opinion of Counsel to the effect that such Filing (i) satisfies all requirements
and conditions to such Filing in this Agreement and (ii) satisfies the
requirements for a Filing of such type under the UCC in the applicable
jurisdiction, and (y) a form of authorization for Buyer's signature. Upon
receipt of such Opinion of Counsel and form of authorization, Buyer shall
promptly authorize in writing Seller to, and Seller shall, effect such Filing
under the UCC. Notwithstanding anything else in this Agreement to the contrary,
Seller shall not have any authority to effect a Filing without obtaining written
authorization from Buyer in accordance with this paragraph.
Receivables Purchase and
Contribution Agreement
Sch. 6.1(a)(vii)-2
EXHIBIT A
FORM OF ASSIGNMENT
(As required by Section 2.6(c) of the Agreement)
ASSIGNMENT No._________ OF RECEIVABLES IN ADDITIONAL ACCOUNTS (this
"Assignment") dated as of________, by and between CDF FUNDING, INC., a Delaware
corporation, as Seller ("Seller") and GE DEALER FLOORPLAN MASTER NOTE TRUST
("Buyer"), pursuant to the Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Seller and Buyer are parties to the Receivables Purchase and
Contribution Agreement, dated as of [ ], 2004 (as it may be amended, restated,
supplemented or otherwise modified from time to time, the "Agreement"); and
WHEREAS, pursuant to the Agreement, Seller wishes to designate Additional
Accounts to be included as Accounts and to convey the Transferred Receivables in
such Additional Accounts that have been designated "Additional Accounts"
pursuant to the Agreement, whether now existing or hereafter created, to Buyer
(as each such term is defined in the Agreement); and
WHEREAS, Buyer is willing to accept such designation and conveyance
subject to the terms and conditions hereof;
NOW, THEREFORE, Seller and Buyer hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein shall
have such defined meanings when used herein, unless otherwise defined herein.
"Addition Date" means, with respect to the Additional Accounts
designated hereby, [ ], 20[______].
"Addition Cut-Off Date" means, with respect to Additional Accounts
designated hereby, [______], 20[______].
"Transferred Property" is defined in Section 3(a).
2. Designation of Additional Accounts. The Accounts listed on Schedule 1
to this Assignment have been designated "Additional Accounts" pursuant to the
Agreement. Schedule 1 to this Assignment, as of the Addition Date, shall
supplement Schedule 1 to the Agreement as required by Section 2.1(b) of the
Agreement.
3. Conveyance of Receivables.
(a) Seller does hereby transfer, assign, set over and otherwise
convey, without recourse except as set forth in this Assignment and the
Agreement, to Buyer, all its right, title and interest in, to and under the
following (the "Transferred Property"): the Receivables in such
Receivables Purchase and
Contribution Agreement
Exh. A-1
Additional Accounts existing at the close of business on the Addition Date and
thereafter created from time to time until the Agreement Termination Date, the
Collateral Security and Collections with respect thereto and related Recoveries,
together with all monies due or to become due and all amounts received or
receivable with respect thereto and Insurance Proceeds relating thereto and all
proceeds of the foregoing. The foregoing does not constitute and is not intended
to result in the creation or assumption by Buyer of any obligation of Seller or
any other Person in connection with the Accounts or the Transferred Receivables
or under any agreement or instrument relating thereto, including any obligation
under any Financing Agreement, any Floorplan Agreement, or any Participation
Agreement, or any obligation to any Dealer or any Manufacturer.
(b) Seller agrees to record and file, at its own expense, financing
statements (and continuation statements when applicable) with respect to the
Receivables in Additional Accounts existing on the Addition Date and thereafter
created meeting the requirements of applicable state law in such manner and in
such jurisdictions as are necessary to perfect, and maintain perfection of,
Buyer's ownership of such Receivables, and to deliver a file-stamped copy of
each such financing statement or other evidence of such filing to Buyer within
ten (10) days of the Addition Date. Buyer shall be under no obligation
whatsoever to file such financing or continuation statements or to make any
other filing under the UCC in connection with such sale and assignment.
(c) In connection with such assignment, Seller further agrees, at
its own expense, on or prior to the date of this Assignment, to indicate and
cause Master Servicer to indicate in the appropriate computer files that
Receivables created in connection with the Additional Accounts and designated
hereby have been conveyed to Buyer pursuant to the Agreement and this
Assignment.
(d) The parties hereto intend that the transfer of the Transferred
Property by Seller to Buyer shall constitute a sale by Seller to Buyer and not a
loan by Buyer to Seller secured by the Transferred Property. If, contrary to the
intent of the parties hereto, a court of competent jurisdiction determines that
any transaction provided for herein constitutes a loan and not a sale of the
Transferred Property, then this Assignment shall constitute a security agreement
under applicable law and Seller shall be deemed to have granted, and Seller
hereby grants, to Buyer a security interest in and to all of Seller's right,
title and interest in, to and under the Transferred Property.
4. Acceptance by Buyer. Buyer hereby acknowledges its acceptance of all
right, title and interest to the property, existing on the Addition Date and
thereafter created, conveyed to Buyer pursuant to Section 3(a) of this
Assignment. Buyer further acknowledges that, prior to or simultaneously with the
execution and delivery of this Assignment, Seller delivered to it the Account
Schedule described in Section 2 of this Assignment.
5. Representations and Warranties of Seller. Seller hereby represents and
warrants to Buyer as of the Addition Date:
(a) This Assignment constitutes a legal, valid and binding
obligation of Seller enforceable against Seller in accordance with its terms,
except as such enforceability may be
Receivables Purchase and
Contribution Agreement
Exh. A-2
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in equity);
(b) each of the Transferred Receivables satisfies the criteria for
an Eligible Receivable as of the Addition Cut-Off Date;
(c) each Additional Account is, as of the Addition Cut-Off Date, an
Eligible Account;
(d) no selection procedures believed by Seller to be materially
adverse to the interests of Buyer or any of its creditors were utilized in
selecting the Additional Accounts from the available Eligible Accounts;
(e) as of the Addition Date, Seller is solvent;
(f) the Account Schedule delivered pursuant to this Assignment is an
accurate and complete listing in all material respects of all the Accounts as of
the related Addition Cut-Off Date, and the information contained therein with
respect to the identity of such Accounts and the Transferred Receivables
existing in such Accounts, is true and correct in all material respects as of
the Addition Cut-Off Date;
(g) the Agreement and this Assignment transfer ownership to Buyer of
the Transferred Property, and upon filing of the financing statements described
herein and, in the case of Transferred Receivables thereafter created, upon the
creation thereof, such ownership will be perfected and prior to all Liens (other
than Permitted Encumbrances) in the Transferred Property;
(h) the Transferred Receivables constitute "accounts", "chattel
paper" or "general intangibles" within the meaning of UCC Section 9-102;
(i) immediately prior to the conveyance of the Receivables pursuant
to this Agreement, Seller owns and has good and marketable title to the
Receivables free and clear of any Lien, claim or encumbrance of any Person
(other than Permitted Encumbrances); and
(j) subject to Permitted Encumbrances, other than the transfer and
assignment to Buyer pursuant to this Assignment, Seller had not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed any of the
Transferred Receivables. Seller has not authorized the filing of and is not
aware of any UCC financing statements against Seller that included a description
of collateral covering the Transferred Receivables.
6. Amendment of the Agreement. The Agreement is hereby amended to provide
that all references therein to "this Agreement" and "herein" shall be deemed
from and after the Addition Date to be a dual reference to the Agreement as
supplemented by this Assignment. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Agreement
shall remain unamended and shall continue to be, and shall remain, in full force
and effect in accordance with its terms.
Receivables Purchase and
Contribution Agreement
Exh. A-3
7. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
8. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS ASSIGNMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN
ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS
OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS
THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS ASSIGNMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO
THIS ASSIGNMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS
FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH
OF MANHATTAN IN NEW YORK CITY. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE
TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH
PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON
LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED
IN ACCORDANCE WITH SECTION 7.1 OF THE AGREEMENT AND THAT SERVICE SO MADE SHALL
BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR
THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID.
NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
Receivables Purchase and
Contribution Agreement
Exh. A-4
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS ASSIGNMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Receivables Purchase and
Contribution Agreement
Exh. A-5
IN WITNESS WHEREOF, the undersigned have caused this Assignment to be duly
executed and delivered on the day and year first above written.
CDF FUNDING, INC., as Seller
By:____________________________________
Name:__________________________________
Title:_________________________________
Receivables Purchase and
Contribution Agreement
Exh. A-6
GE DEALER FLOORPLAN MASTER NOTE TRUST,
as Buyer
By The Bank of New York (Delaware), not
in its individual capacity, but solely
as Trustee on behalf of Buyer
By:____________________________________
Name:__________________________________
Title:_________________________________
Receivables Purchase and
Contribution Agreement
Exh. A-7
Schedule 1
to Assignment
ADDITIONAL ACCOUNTS
Receivables Purchase and
Contribution Agreement
Exh. A-8
EXHIBIT B
FORM OF REASSIGNMENT
(As required by Section 2.7 of the Agreement)
REASSIGNMENT No. _______ ("Reassignment") dated as of _________, by and
between CDF FUNDING, INC., a Delaware corporation, as Seller (the "Seller"), and
GE DEALER FLOORPLAN MASTER NOTE TRUST (the "Buyer"), pursuant to the Agreement
referred to below.
WITNESSETH:
WHEREAS Seller and Buyer are parties to the Receivables Purchase and
Contribution Agreement, dated as of [ ], 2004 (as it may be amended, restated,
supplemented or otherwise modified from time to time, the "Agreement");
WHEREAS pursuant to the Agreement, the parties hereto desire to remove
certain Accounts from the Account Schedule [insert if such Accounts were not
Eligible Accounts at the time such Accounts were originally designated as
Accounts; and the parties hereto desire that Buyer reconvey to Seller the
Transferred Receivables of such Removed Accounts, whether now existing or
hereafter created];
NOW, THEREFORE, Seller and Buyer hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein shall
have such defined meanings when used herein, unless otherwise defined herein.
"Removal Date" means, with respect to the Removed Accounts designated
hereby, ___________, ____.
"Removed Accounts" means the Accounts listed on Schedule 2 to this
Reassignment.
2. Designation of Removed Accounts. Schedule 1 to this Reassignment, as of
the Removal Date, shall not include the Removed Accounts and shall supplement
Schedule 1 to the Agreement as required by Section 2.1(b) of the Agreement.
Schedule 2 to this Reassignment lists the Removed Accounts covered by this
Reassignment.
3. [This Section should be used with respect to Accounts that were not
Eligible Accounts at the time such Accounts were originally designated as
Accounts: Conveyance of Transferred Receivables. (a) Buyer does hereby transfer,
assign, set over and otherwise convey to Seller, without representation,
warranty or recourse, on and after the Removal Date, all right, title and
interest of Buyer in, to and under the Transferred Receivables existing at the
close of business on the Removal Date, and thereafter created from time to time,
in the Removed Accounts designated hereby, the Collateral Security and
Collections and Recoveries with respect thereto, together with all monies due or
to become due and all amounts received or receivable with respect thereto and
all Insurance Proceeds related thereto and all proceeds of the foregoing.
Receivables Purchase and
Contribution Agreement
Exh. B-1
(b) In connection with such transfer, Buyer agrees to execute and deliver
to Seller on or prior to the date this Reassignment is delivered, applicable
termination statements prepared by Seller with respect to the Transferred
Receivables existing at the close of business on the Removal Date, and
thereafter created from time to time, in the Removed Accounts reassigned hereby
and the proceeds thereof evidencing the release by Buyer of its interest in such
Transferred Receivables, and meeting the requirements of applicable state law,
in such manner and such jurisdictions as are necessary to terminate such
interest.]
4. Representations and Warranties of Seller. Seller hereby represents and
warrants to Buyer as of the Removal Date:
(a) Legal Valid and Binding Obligation. This Reassignment constitutes a
legal, valid and binding obligation of Seller enforceable against Seller in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors' rights
in general and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity); and
(b) List of Accounts and Removed Accounts. Schedule 1 attached hereto is
an accurate and complete listing in all material respects of all the Accounts
(other than the Removed Accounts covered by this Reassignment) as of the Removal
Date. Schedule 2 attached hereto is an accurate and complete listing in all
material respects as of the Removal Date of the Removed Accounts being removed
pursuant to this Reassignment.
5. Amendment of the Agreement. The Agreement is hereby amended to provide
that all references therein to "this Agreement" and "herein" shall be deemed
from and after the Removal Date to be a dual reference to the Agreement as
supplemented by this Reassignment. Except as expressly amended hereby, all of
the representations, warranties, terms and covenants and conditions of the
Agreement shall remain unamended and shall continue to be and shall remain in
full force and effect in accordance with its terms.
6. Counterparts. This Reassignment may be executed in two or more
counterparts, and by different parties on separate counterparts), each of which
shall be an original, but all of which shall constitute one and the same
instrument.
7. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS REASSIGNMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL
RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS
THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
Receivables Purchase and
Contribution Agreement
Exh. B-2
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL
COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS REASSIGNMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO
THIS REASSIGNMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE
BOROUGH OF MANHATTAN IN NEW YORK CITY. EACH PARTY HERETO SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED
IN ACCORDANCE WITH SECTION 7.1 OF THE AGREEMENT AND THAT SERVICE SO MADE SHALL
BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR
THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID.
NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS REASSIGNMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Receivables Purchase and
Contribution Agreement
Exh. B-3
IN WITNESS WHEREOF, the undersigned have caused this Reassignment to be
duly executed and delivered on the day and year first above written.
CDF FUNDING, INC., as Seller
By:____________________________________
Name:__________________________________
Title:_________________________________
Receivables Purchase and
Contribution Agreement
Exh. B-4
GE DEALER FLOORPLAN MASTER NOTE TRUST,
as Buyer
By The Bank of New York (Delaware), not
in its individual capacity, but solely
as Trustee on behalf of Buyer
By:____________________________________
Name:__________________________________
Title:_________________________________
Receivables Purchase and
Contribution Agreement
Exh. B-5
Schedule 1
to Reassignment
UPDATED ACCOUNT SCHEDULE
Receivables Purchase and
Contribution Agreement
Exh. B-6
Schedule 2
to Reassignment
REMOVED ACCOUNTS
Receivables Purchase and
Contribution Agreement
Exh. B-7
EXHIBIT C
FORM OF OPINION OF COUNSEL WITH RESPECT
TO ADDITION OF ADDITIONAL ACCOUNTS
(Provisions to be included in
Opinion of Counsel to be
delivered pursuant to
Section 2.6(c)(ii))
The opinions set forth below may be subject to appropriate qualifications,
assumptions, limitations and exceptions.
1. The provisions of the Receivables Purchase and Contribution Agreement
are effective under the UCC to create in favor of Buyer a security interest in
Seller's rights in the Transferred Receivables in such Additional Accounts and
the identifiable proceeds thereof (the "Specified Assets").
2. The security interest in the Specified Assets created by the
Receivables Purchase and Contribution Agreement will be perfected by the filing
of the Financing Statement as described and defined in such opinion.
Receivables Purchase and
Contribution Agreement
Exh. C-1
Exhibit 4.15
SERVICING AGREEMENT
Dated as of [ ], 2004
between
GE DEALER FLOORPLAN MASTER NOTE TRUST
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Master Servicer
Servicing Agreement
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INTERPRETATION
1
SECTION 1.1 Definitions............................................................................... 1
SECTION 1.2 Other Interpretive Matters................................................................ 8
ARTICLE II
APPOINTMENT OF MASTER SERVICER; CERTAIN DUTIES AND
RESPONSIBILITIES OF MASTER SERVICER
9
SECTION 2.1 Appointment of Master Servicer............................................................ 9
SECTION 2.2 Duties and Responsibilities of Master Servicer............................................ 9
SECTION 2.3 Unrelated Amounts......................................................................... 10
SECTION 2.4 Authorization of Master Servicer.......................................................... 10
SECTION 2.5 Servicing Fees............................................................................ 11
SECTION 2.6 Covenants of Master Servicer.............................................................. 11
SECTION 2.7 Reporting Requirements.................................................................... 12
SECTION 2.8 Annual Master Servicer's Certificate...................................................... 12
SECTION 2.9 Annual Independent Public Accountants' Servicing Report................................... 12
SECTION 2.10 Notices to Transferor..................................................................... 13
SECTION 2.11 Collections............................................................................... 13
SECTION 2.12 Allocations and Disbursements............................................................. 13
SECTION 2.13 New Series................................................................................ 13
ARTICLE III
REPRESENTATIONS AND WARRANTIES
13
SECTION 3.1 Representations and Warranties of Master Servicer......................................... 13
ARTICLE IV
ADDITIONAL MATTERS RELATING TO MASTER SERVICER
14
SECTION 4.1 Covenants of Master Servicer Regarding the Transferred Receivables........................ 14
SECTION 4.2 Merger or Consolidation of, or Assumption of the Obligations of, Master Servicer.......... 15
SECTION 4.3 Access to Certain Documentation and Information Regarding the Receivables................. 16
ARTICLE V
SERVICER DEFAULTS
16
SECTION 5.1 Servicer Defaults......................................................................... 16
|
-i-
Servicing Agreement
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE VI
SUCCESSOR MASTER SERVICER
18
SECTION 6.1 Resignation of Master Servicer............................................................ 18
SECTION 6.2 Appointment of the Successor Master Servicer.............................................. 18
SECTION 6.3 Duties of Master Servicer................................................................. 18
SECTION 6.4 Effect of Termination or Resignation...................................................... 19
ARTICLE VII
INDEMNIFICATION
19
SECTION 7.1 Indemnities by Master Servicer............................................................ 19
SECTION 7.2 Limitation of Damages; Indemnified Persons................................................ 19
SECTION 7.3 Limitation on Liability of Master Servicer and Others..................................... 19
ARTICLE VIII
MISCELLANEOUS
20
SECTION 8.1 Notices................................................................................... 20
SECTION 8.2 Binding Effect; Assignability............................................................. 21
SECTION 8.3 Termination; Survival of Obligations...................................................... 21
SECTION 8.4 No Proceedings............................................................................ 21
SECTION 8.5 Complete Agreement; Modification of Agreement............................................. 22
SECTION 8.6 Amendments and Waivers.................................................................... 22
SECTION 8.7 No Waiver; Remedies....................................................................... 22
SECTION 8.8 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.............................. 22
SECTION 8.9 Counterparts.............................................................................. 23
SECTION 8.10 Severability.............................................................................. 23
SECTION 8.11 Section Titles............................................................................ 23
SECTION 8.12 Limited Recourse.......................................................................... 23
SECTION 8.13 Further Assurances........................................................................ 24
SECTION 8.14 Pledge of Assets.......................................................................... 24
SECTION 8.15 Waiver of Setoff.......................................................................... 24
SECTION 8.16 Limitation of Liability of the Trustee.................................................... 24
Schedule 2.7 Reporting Requirements
Exhibit A Form of Annual Servicer's Certificate
|
Servicing Agreement
-ii-
This SERVICING AGREEMENT, dated as of [ ], 2004 (this "Agreement"), is
entered into between GENERAL ELECTRIC CAPITAL CORPORATION, in its capacity as
the Master Servicer (as defined below), and GE DEALER FLOORPLAN MASTER NOTE
TRUST, a Delaware statutory trust ("Owner").
In consideration of the premises and the mutual covenants hereinafter
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions.
"Account" means each Initial Account and, from and after the related
Addition Date, each Additional Account. The term "Account" shall not include any
Removed Accounts.
"Account Schedule" is defined in the First Tier Agreement.
"Addition Date" is defined in the First Tier Agreement.
"Additional Accounts" means each individual revolving credit arrangement
established by an Originator with a Dealer in connection with the Floorplan
Business or the Asset Based Lending Business, which account is designated
pursuant to the First Tier Agreement to be included as an Account and is
identified in an Account Schedule delivered to the Indenture Trustee.
"Administration Agreement" means the Administration Agreement, dated as of
[ ], 2004, among the Administrator, the Trustee and the Owner.
"Administrator" means GE Capital, in its capacity as Administrator under
the Administration Agreement, or any other Person designated as Administrator
under the Administration Agreement.
"Affiliate" means, with respect to any Person, (a) each Person that,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, five percent (5%) or more of the securities having
ordinary voting power in the election of directors of such Person, (b) each
Person that controls, is controlled by or is under common control with such
Person, or (c) each of such Person's officers, directors, joint venturers and
partners. For the purposes of this definition, "control" of a Person means the
possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement" is defined in the preamble.
Servicing Agreement
"Asset Based Lending Business" means the extensions of credit made by an
Originator to Dealers in order to provide loans based on the value of certain
assets of such Dealers.
"Asset Based Lending Financing Agreement" means an asset based lending
financing agreement entered into by an Originator and a Dealer in connection
with the Asset Based Lending Business.
"Authorized Officer" means (a) with respect to any bank, corporation or
statutory trust, the Chairman or Vice-Chairman of the Board, the President, any
Vice President, the Secretary, the Treasurer, any Assistant Secretary, any
Assistant Treasurer and each other officer or employee of such corporation or
trustee of such trust specifically authorized in resolutions of the Board of
Directors of such corporation or trustee of such trust to sign agreements,
instruments or other documents on behalf of such corporation or statutory trust
in connection with the transactions contemplated by the Servicing Agreement and
the other Related Documents, and (b) with respect to a limited liability
company, any officer or manager of such limited liability company; provided,
that any Authorized Officer of the Transferor shall be considered to be an
Authorized Officer of Owner.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which banks are required or permitted to be closed in the State of New York, the
State of Illinois or the State of Connecticut (or, with respect to any Series,
any additional city specified by the related Indenture Supplement).
"Class" means any class of Notes of any Series.
"Closing Date" means [ ], 2004.
"Collateral Security" means, with respect to any Receivable, (i) the
security interest, if any, granted by or on behalf of the related Dealer with
respect thereto, including a security interest in the related Products or
assets, (ii) all other security interests or liens and property subject thereto
from time to time purporting to secure payment of such Receivable, whether
pursuant to the agreement giving rise to such Receivable or otherwise, together
with all financing statements filed against a Dealer describing any collateral
securing such Receivable, (iii) all guarantees, insurance and other agreements
(including Floorplan Agreements and subordination agreements with other lenders)
or arrangements of whatever character from time to time supporting or securing
payment of such Receivable whether pursuant to the agreement giving rise to such
Receivable or otherwise, and (iv) all Records in respect of such Receivable.
"Collection Account" means the deposit account designated as such in the
Indenture.
"Collections" means, without duplication, all payments by or on behalf of
Dealers received by the Master Servicer in respect of the Receivables (including
proceeds from the realization upon any Collateral Security), in the form of
cash, checks, wire transfers or any other form of payment. Collections of
Non-Principal Receivables shall include all Recoveries. Amounts paid by
Transferor pursuant to Section 2.5 of the Second Tier Agreement shall be deemed
to be Principal Collections. Amounts paid by Transferor pursuant to Section
6.1(e) of the Second Tier Agreement shall be deemed to be Principal Collections
to the extent that they
Servicing Agreement
2
represent the purchase price of Principal Receivables. Amounts paid by the
Master Servicer pursuant to Section 2.6 shall be deemed to be Principal
Collections.
"Commission" means the Securities and Exchange Commission.
["Credit and Collection Policies" means the credit and collection policies
adopted by Owner pursuant to the Credit and Collection Policies Resolution, as
such credit and collection policies may be amended or modified from time to
time.]
["Credit and Collection Policies Resolution" means a resolution adopted by
the Owner on or prior to the Closing Date.]
"Dealer" means a Person engaged generally in the business of purchasing
consumer or commercial goods from a manufacturer or distributor thereof and
holding such goods for sale or lease in the ordinary course of business or a
Person engaged generally in the business of manufacturing or distributing
consumer or commercial goods for sale to Dealers in the ordinary course of
business.
"Debtor Relief Laws" means Title 11 of the United States Code and all
other applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, suspension of payments,
readjustment of debt, marshalling of assets or similar debtor relief laws of the
United States, any state or any foreign country from time to time in effect,
affecting the rights of creditors generally.
"Defaulted Receivable" is defined in the First Tier Agreement.
"Delinquent Receivable" is defined in Section 2.14.
"Determination Date" means, unless otherwise specified in any Indenture
Supplement with respect to the related Series, the second Business Day preceding
each Payment Date.
"Discount Factor" is defined in the Second Tier Agreement.
"Discount Portion" means, with respect to a Receivable, the portion
thereof equal to the product of the Discount Factor and the outstanding
principal balance of such Receivable.
"Eligible Servicer" means the Indenture Trustee, a wholly owned subsidiary
of the Indenture Trustee or an entity that, at the time of its appointment as
Servicer: (a) is servicing a portfolio of dealer floorplan loans (or is a
successor to an entity that was engaged and continues to be engaged in such
servicing); (b) is legally qualified and has the capacity to service the
Accounts; (c) is qualified (or licensed) to use the software that is then being
used to service the Accounts or obtains the right to use, or has its own,
software which is adequate to perform its duties under this Agreement; (d) has
the ability to professionally and competently service a portfolio of similar
accounts; and (e) has a net worth of at least $50,000,000 as of the end of its
most recent fiscal quarter.
"Financing Agreement" means any Wholesale Financing Agreement or Asset
Based Lending Financing Agreement.
Servicing Agreement
3
"First Tier Agreement" means the Receivables Sale Agreement, dated as of
[ ], 2004, among the Originators and the Transferor.
"Floorplan Agreement" means an agreement entered into by an Originator and
a Manufacturer establishing certain terms and conditions for the financing of
such Manufacturer's Dealers by such Originator, which may include such
Manufacturer's agreement, among other matters, to repurchase from, or remarket
for, such Originator Products sold by such Manufacturer to any of its Dealers
and financed by such Originator under a Wholesale Financing Agreement if such
Originator acquires possession of such Products because of a default by such
Dealer under such Wholesale Financing Agreement, whether by repossession,
voluntary surrender or other circumstances.
"Floorplan Business" means the extensions of credit made by an
Originator to Dealers in order to finance Products purchased by Dealers from
Manufacturers for sale or lease by such Dealers.
"GE Capital" means General Electric Capital Corporation, a Delaware
corporation.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any agency, department or other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Indemnified Amounts" means, with respect to any Person, any and all
suits, actions, proceedings, claims, damages, losses, liabilities and expenses
(including reasonable attorneys' fees and disbursements and other costs of
investigation or defense, including those incurred upon any appeal).
"Indenture" means the Master Indenture dated as of [ ], 2004 between
Owner and the Indenture Trustee.
"Indenture Supplement" means, with respect to any Series, a supplement to
the Indenture, executed and delivered in connection with the original issuance
of the Notes of such Series.
"Indenture Trustee" means, at any time, the Person acting as indenture
trustee under the Indenture.
"Initial Account" means each individual revolving credit arrangement
established by an Originator with a Dealer which was identified in the Account
Schedule delivered to the Indenture Trustee on or prior to the Closing Date.
"Insurance Proceeds" with respect to an Account means any amounts received
by the Master Servicer pursuant to any policy of insurance which are required to
be paid to an Originator pursuant to a Wholesale Financing Agreement or Asset
Based Lending Financing Agreement.
"Lien" means any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever
Servicing Agreement
4
(including any lease or title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of, or agreement to give, any financing statement perfecting a security interest
under the UCC or comparable law of any jurisdiction).
"Litigation" means, with respect to any Person, any action, claim,
lawsuit, demand, investigation or proceeding pending or threatened against such
Person before any court, board, commission, agency or instrumentality of any
federal, state, local or foreign government or of any agency or subdivision
thereof or before any arbitrator or panel of arbitrators.
"Manufacturer" means a Person engaged generally in the business of
manufacturing or distributing Products for sale or lease to Dealers in the
ordinary course of business.
"Master Servicer" means GE Capital or any other Person designated as a
Successor Master Servicer.
"Material Adverse Effect" means a material adverse effect on (a) the
ability of Master Servicer to perform any of its obligations under the Related
Documents in accordance with the terms thereof, (b) the validity or
enforceability of any Related Document or the rights and remedies of Owner under
any Related Document or (c) the Transferred Receivables (including the
collectibility of the Transferred Receivables and the security and other rights
securing and supporting the payment of the Transferred Receivables), the
Financing Agreements or the ownership interests or Liens of Owner thereon or the
priority of such interests or Liens.
"Monthly Period" means each calendar month.
"Monthly Servicing Fee" is defined in Section 2.5.
"Moody's" means Moody's Investors Service, Inc.
"New Issuance" is defined in Section 2.13.
"Non-Principal Collections" means the sum of (a) Collections constituting
collections of interest and all other non-principal charges (including insurance
service fees and handling fees) on the Receivables, (b) the product of (i)
principal payments on the Receivables and (ii) the Discount Factor, and (c) all
Recoveries.
"Non-Principal Receivables" with respect to any Account means all amounts
billed to the related Dealer in respect of interest and all other non-principal
charges.
"Noteholder" is defined in the Indenture.
"Notes" means all notes issued by the Owner pursuant to the Indenture and
the applicable Indenture Supplements.
"Officer's Certificate" means, with respect to any Person, a certificate
signed by an Authorized Officer of such Person.
Servicing Agreement
5
"Opinion of Counsel" is defined in the Indenture.
"Originator" means a Person that is party from time to time to the First
Tier Agreement as a "Seller".
"Outstanding" is defined in the Indenture.
"Owner" is defined in the preamble.
"Participation Interest" is defined in the First Tier Agreement.
"Payment Date" means, except as otherwise specified for any Series in the
related Indenture Supplement, the twentieth (20th) day of each calendar month,
or if the twentieth (20th) day is not a Business Day, the next Business Day.
"Payment Date Shortfall" is defined in Section 2.14.
"Person" means any individual, sole proprietorship, partnership, joint
venture, unincorporated organization, trust (including a business trust),
association, corporation, limited liability company, institution, public benefit
corporation, joint stock company, Governmental Authority or any other entity of
whatever nature.
"Principal Collections" means all Collections other than Non-Principal
Collections. Amounts paid by an Originator pursuant to Section 2.5 of the First
Tier Agreement shall be deemed to be Principal Collections. To the extent not
duplicative of the preceding sentence, amounts paid by Transferor pursuant to
Section 2.5 of the Second Tier Agreement shall be deemed to be Principal
Collections. Amounts paid by Transferor pursuant to Section 6.1(e) of the Second
Tier Agreement shall be deemed to be Principal Collections to the extent that
they represent the purchase price of Principal Receivables. Amounts paid by the
Master Servicer pursuant to Section 2.6 shall be deemed to be Principal
Collections.
"Principal Receivable" with respect to an Account means amounts shown on
Owner's records as Receivables (other than such amounts which represent
Non-Principal Receivables [and Discount Portions]) due from the related Dealer.
"Products" means the commercial and consumer goods held or to be held by
Dealers for sale or lease and financed by an Originator.
"Rating Agency" is defined in the Indenture.
"Rating Agency Condition" is defined in the Indenture.
"Receivable" means, with respect to an Account, all amounts payable
(including interest, finance charges and other charges), and the obligation to
pay such amounts, by the related Dealer from time to time in respect of advances
made by an Originator to or on behalf of such Dealer in connection with the
Floorplan Business or the Asset Based Lending Business, as the case may be[,
together with the group of writings evidencing such amounts and the security
interest created in connection therewith and all of the rights, remedies, powers
and privileges thereunder
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6
(including under the related Financing Agreement)]; provided that if a
Participation Interest has been created in respect of such Account, whether
before or after that Account has been designated as an Account, the amounts so
payable by the related Dealer that are allocable to such Participation Interest
shall not be part of the "Receivables" in respect of such Account. A Receivable
that, prior to its transfer to the Transferor, was subject to a participation
from an Originator in favor of another Originator shall be considered a
Receivable.
"Records" means all Financing Agreements and other documents, books,
records and other information (including computer programs, tapes, disks, data
processing software and related property and rights) prepared and maintained by
Transferor, an Originator, Master Servicer, any Sub-Servicer or Owner with
respect to the Transferred Receivables and the Dealers thereunder.
"Recoveries" on any Determination Date shall mean all amounts received,
including Insurance Proceeds, during the Monthly Period immediately preceding
such Determination Date with respect to Receivables which have previously become
Defaulted Receivables.
"Related Documents" means this Agreement, the Indenture, the Indenture
Supplements and all other pledges, powers of attorney, consents, assignments,
contracts, notices, and all other written matter whether heretofore, now or
hereafter executed by or on behalf of Master Servicer, or any employee of Master
Servicer, and delivered in connection with any of the foregoing or the
transactions contemplated thereby.
"Removed Accounts" is defined in the First Tier Agreement.
"Requirements of Law" means, as to any Person, the certificate of
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether federal, state or local.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
"Second Tier Agreement" means the Receivables Purchase and Contribution
Agreement dated as of [ ], 2004 between the Transferor and Owner.
"Series" means any series of Notes, which may include within any such
Series a Class or Classes of Notes subordinate to another such Class or Classes
of Notes of the same Series.
"Series Account" means any deposit, trust, escrow or similar account
maintained for the benefit of the Noteholders of any Series or class, as
specified in any Indenture Supplement.
"Series Closing Date" means, with respect to any Series, the date of
issuance of such Series.
"Servicer Advance" is defined in Section 2.14.
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7
"Servicer Default" is defined in Section 5.1.
"Servicer Indemnified Person" is defined in Section 7.1.
"Servicer Termination Notice" means any notice by the Indenture Trustee or
holders of Notes representing more than fifty percent (50%) of the Outstanding
Principal Balance (as defined in the Indenture) to Master Servicer and the
Indenture Trustee, respectively, that (a) a Servicer Default has occurred and
(b) Master Servicer's appointment under this Agreement has been terminated.
"Servicing Records" means all documents, books, Records and other
information (including computer programs, tapes, disks, data processing software
and related property and rights) prepared and maintained by Master Servicer with
respect to the Transferred Receivables and the Dealers thereunder.
"Sub-Servicer" means any Person with whom Master Servicer enters into a
Sub-Servicing Agreement.
"Sub-Servicing Agreement" means any written contract entered into between
Master Servicer and any Sub-Servicer pursuant to and in accordance with Section
2.1 relating to the servicing, administration or collection of the Transferred
Receivables.
"Successor Master Servicer" is defined in Section 6.2.
"Transfer Date" means the Business Day preceding each Payment Date.
"Transferor" means CDF Funding, Inc., a Delaware corporation.
"Transferred Receivable" means each Receivable purchased or otherwise
acquired by Owner pursuant to the Second Tier Agreement, but excluding
Receivables that have been repurchased by an Originator pursuant to the First
Tier Agreement or assigned to Master Servicer pursuant to this Agreement.
"Trust Agreement" means the Amended and Restated Trust Agreement relating
to Owner, dated as of [ ], 2004, between Transferor and the Trustee.
"Trustee" means The Bank of New York (Delaware), not in its individual
capacity but as Trustee under the Trust Agreement, its successors in interest
and any successor Trustee under the Trust Agreement.
"UCC" means, with respect to any jurisdiction, the Uniform Commercial Code
as the same may, from time to time, be enacted and in effect in such
jurisdiction.
"Unrelated Amounts" is defined in Section 2.3.
"Wholesale Financing Agreement" means a wholesale financing agreement
entered into by an Originator and a Dealer in order to finance Products
purchased by such Dealer from a Manufacturer.
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8
SECTION 1.2 Other Interpretive Matters. All terms defined directly or by
incorporation in this Agreement shall have the defined meanings when used in any
certificate or other document delivered pursuant thereto unless otherwise
defined therein. For purposes of this Agreement and all such certificates and
other documents, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in this
Agreement to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles; (b) references to any
month, quarter or year refer to a calendar month, quarter or year; (c) terms
defined in Article 9 of the UCC and not otherwise defined in this Agreement are
used as defined in that Article; (d) references to any amount as on deposit or
outstanding on any particular date means such amount at the close of business on
such day; (e) the words "hereof," "herein" and "hereunder" and words of similar
import refer to this Agreement (or the certificate or other document in which
they are used) as a whole and not to any particular provision of this Agreement
(or such certificate or document); (f) references to any Section, Schedule or
Exhibit are references to Sections, Schedules and Exhibits in or to this
Agreement (or the certificate or other document in which the reference is made),
and references to any paragraph, subsection, clause or other subdivision within
any Section or definition refer to such paragraph, subsection, clause or other
subdivision of such Section or definition; (g) the term "including" means
"including without limitation"; (h) references to any law or regulation refer to
that law or regulation as amended from time to time and include any successor
law or regulation; (i) references to any agreement refer to that agreement as
from time to time amended or supplemented or as the terms of such agreement are
waived or modified in accordance with its terms; and (j) references to any
Person include that Person's successors and assigns.
ARTICLE II
APPOINTMENT OF MASTER SERVICER; CERTAIN DUTIES
AND RESPONSIBILITIES OF MASTER SERVICER.
SECTION 2.1 Appointment of Master Servicer. Owner hereby appoints Master
Servicer as its agent to service the Transferred Receivables and enforce its
rights and interests in and under the Transferred Receivables and to serve in
such capacity until the termination of its responsibilities pursuant to Sections
5.1 or 6.1. In connection therewith, Master Servicer hereby accepts such
appointment and agrees to perform the duties and obligations set forth herein.
Master Servicer may delegate any duties to any of its Affiliates without further
action or subcontract with a Sub-Servicer for the collection, servicing or
administration of the Transferred Receivables or any portion thereof; provided,
that (a) Master Servicer shall remain liable for the performance of the duties
and obligations of any such Affiliate or Sub-Servicer pursuant to the terms
hereof and (b) any Sub-Servicing Agreement that may be entered into with, and
any other transactions or services relating to the Transferred Receivables
involving, a Sub-Servicer shall be deemed to be between the Sub-Servicer and
Master Servicer alone, and Owner shall not be deemed party thereto and shall
have no obligations, duties or liabilities with respect to the Sub-Servicer.
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9
SECTION 2.2 Duties and Responsibilities of Master Servicer.
(a) Subject to the provisions of this Agreement, Master Servicer
shall conduct the servicing, administration and collection of the
Transferred Receivables with reasonable care and diligence and in
accordance with the Financing Agreements and the Credit and Collection
Policies.
(b) Owner shall provide Master Servicer not less than five (5)
Business Days' prior notice of (i) any designation of additional or
removed Accounts, (ii) any designation of any additional Originator
contemplated pursuant to the First Tier Agreement and (iii) any change in
the Discount Factor. Any such designation, removal or change shall be
effective for purposes of this Agreement on the date the designation,
removal or change is given effect under the First Tier Agreement or the
Second Tier Agreement, as specified by Owner to Master Servicer.
(c) Following receipt of notice of any designation of additional or
removed Accounts or an additional Originator or any change in the Discount
Factor pursuant to Section 2.2(b), Master Servicer shall assist Owner in
producing any information required by Owner in connection with such
designation or change.
(d) Master Servicer shall not be obligated to use separate servicing
procedures, offices, employees or accounts for servicing the Transferred
Receivables from the procedures, offices, employees and accounts used by
Master Servicer in connection with servicing other receivables.
(e) Master Servicer shall maintain fidelity bond or other
appropriate insurance coverage insuring against losses through wrongdoing
of its officers and employees who are involved in the servicing of
receivables covering such actions and in such amounts as Master Servicer
believes to be reasonable from time to time.
SECTION 2.3 Unrelated Amounts. If Master Servicer determines that amounts
which are not property of Owner ("Unrelated Amounts") have been deposited in the
Collection Account, then Master Servicer shall provide evidence thereof to Owner
no later than the first Business Day following the day on which Master Servicer
had actual knowledge thereof. Upon receipt of any such notice, Master Servicer
shall withdraw the Unrelated Amounts from the Collection Account, and the same
shall not be treated as Collections on Transferred Receivables and shall not be
subject to the provisions of Section 2.11.
SECTION 2.4 Authorization of Master Servicer. Master Servicer is hereby
authorized to take any and all reasonable steps necessary or desirable and
consistent with the ownership of the Transferred Receivables by Owner and the
pledge of the Transferred Receivables to the Indenture Trustee, in the
determination of Master Servicer, to (a) collect all amounts due under each
Transferred Receivable, including endorsing its name on checks and other
instruments representing Collections on such Transferred Receivable, and
executing and delivering any and all instruments of satisfaction or cancellation
or of partial or full release or discharge and all other comparable instruments
with respect to such Transferred Receivable, and (b) after a Transferred
Receivable becomes delinquent and to the extent permitted under and in
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10
compliance with applicable law and regulations, (i) commence proceedings with
respect to the enforcement of payment of such Transferred Receivable and the
related Financing Agreement, (ii) adjust, settle or compromise any payments due
thereunder, and (iii) initiate proceedings against any Collateral Security
securing the obligations due under such Transferred Receivable, and otherwise
enforce and exercise rights with respect to such Collateral Security and the
related Financing Agreements, in each case, consistent with the Credit and
Collection Policies, (c) to make withdrawals from the Collection Account and any
Series Account, as set forth in this Agreement, the Indenture or any Indenture
Supplement, and (d) to take any action required or permitted under any
enhancement for any Series or class of Notes, as set forth in this Agreement,
the Indenture or any Indenture Supplement. Owner shall furnish (or cause to be
furnished) Master Servicer with any powers of attorney and other documents
necessary or appropriate to enable Master Servicer to carry out its servicing
and administrative duties hereunder, and Owner shall assist Master Servicer to
the fullest extent to enable Master Servicer to collect the Transferred
Receivables and otherwise discharge its duties hereunder.
SECTION 2.5 Servicing Fees. As compensation for its servicing activities
and as reimbursement for its reasonable expenses in connection therewith, Master
Servicer shall be entitled to receive a monthly servicing fee in respect of any
Monthly Period (or portion thereof) prior to the termination of Master
Servicer's obligations under this Agreement (the "Monthly Servicing Fee"). The
Monthly Servicing Fee for each Monthly Period shall equal one-twelfth of the
product of (a) the total outstanding balance of Transferred Receivables that are
Principal Receivables as of the beginning of the prior Monthly Period and (b) [
] percent ([ ]%). The share of the Monthly Servicing Fee allocable to each
Series of Notes shall be payable on the dates and in the amounts specified in
the related Indenture Supplement. Owner shall be obligated to pay the excess of
the Monthly Servicing Fee over the portions allocated as specified above. Master
Servicer shall be required to pay for all expenses incurred by it in connection
with its activities hereunder (including any payments to accountants, counsel or
any other Person) and shall not be entitled to any payment or reimbursement of
those expenses other than the Monthly Servicing Fees.
SECTION 2.6 Covenants of Master Servicer. Master Servicer covenants and
agrees that from and after the Closing Date and until the date on which the
outstanding balances of all Transferred Receivables have been reduced to zero:
(a) Ownership of Transferred Receivables. Master Servicer shall
identify the Transferred Receivables clearly and unambiguously in its
Servicing Records to reflect that the Transferred Receivables are owned by
Owner.
(b) Compliance with Requirements of Law. Master Servicer shall duly
satisfy all obligations on its part to be fulfilled under or in connection
with the Transferred Receivables and the related Accounts, will maintain
in effect all qualifications required under Requirements of Law in order
to properly service the Transferred Receivables and the related Accounts
and will comply in all material respects with all other Requirements of
Law in connection with servicing the Transferred Receivables and the
related Accounts, the failure to comply with which would have a Material
Adverse Effect.
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11
(c) No Rescission or Cancellation. Master Servicer shall not permit
any rescission or cancellation of a Transferred Receivable except as
ordered by a court of competent jurisdiction or other Governmental
Authority or in the ordinary course of its business and in accordance with
the Credit and Collection Policies. Master Servicer shall reflect any such
rescission or cancellation in its computer file related to the Accounts.
If Master Servicer breaches either of the covenants contained in paragraph
(b) or (c) with respect to any Transferred Receivable or the related Account,
and as a result thereof, Owner's rights in, to or under any Transferred
Receivable(s) in the related Account or the proceeds of such Transferred
Receivable are materially impaired or such proceeds are not available for any
reason to Owner free and clear of any Lien, then no later than the expiration of
sixty (60) days from the earlier to occur of the discovery of such event by
Master Servicer, or receipt by Master Servicer of notice of such event given by
Owner, all Transferred Receivables in the Account or Accounts to which such
event relates shall be assigned to Master Servicer as set forth below; provided
that such Transferred Receivables will not be assigned to Master Servicer if, on
any day prior to the end of such sixty (60) day period, (i) the relevant breach
shall have been cured and the covenant shall have been complied with in all
material respects and (ii) Master Servicer shall have delivered an Officer's
Certificate describing the nature of such breach and the manner in which such
breach was cured.
Master Servicer shall effect such assignment by paying Owner in
immediately available funds prior to the related Payment Date in an amount equal
to the amount of such Transferred Receivables, which deposit shall be considered
a Collection with respect to such Receivables.
Upon each such assignment to Master Servicer, Owner shall automatically
and without further action be deemed to transfer, assign, set over and otherwise
convey to Master Servicer, without recourse, representation or warranty all
right, title and interest of Owner in and to such Transferred Receivables, all
moneys due or to become due and all amounts received with respect thereto and
all proceeds thereof. Owner shall execute such documents and instruments of
transfer or assignment and take such other actions as shall be reasonably
requested by Master Servicer to effect the conveyance of any such Transferred
Receivables pursuant to this Section.
SECTION 2.7 Reporting Requirements. Master Servicer hereby agrees that,
from and after the Closing Date and until the date on which the outstanding
balances of all Transferred Receivables have been reduced to zero, it shall
deliver or cause to be delivered financial statements, notices, and other
information (including the reports required by Sections 2.8 and 2.9) at the
times, to the Persons and in a manner set forth in Schedule 2.7.
SECTION 2.8 Annual Master Servicer's Certificate. Master Servicer shall
deliver to Owner, on or before March [31] of each calendar year (commencing in
2005), an Officer's Certificate substantially in the form of Exhibit A.
SECTION 2.9 Annual Independent Public Accountants' Servicing Report.
(a) On or before March [31] of each calendar year (commencing in
2005), Master Servicer shall cause a firm of nationally recognized
independent public accountants (who may also render other services to
Master Servicer) to furnish a report to
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12
Owner to the effect that they have applied certain procedures with Master
Servicer and such firm has examined certain documents and records relating
to the servicing of Accounts under this Agreement, compared the
information contained in Master Servicer's certificates delivered pursuant
to this Agreement during the period covered by such report with such
documents and records and that, on the basis of such agreed upon
procedures (and assuming the accuracy of any reports generated by Master
Servicer's third party agents), such servicing was conducted in compliance
with this Agreement during the period covered by such report (which shall
be the prior fiscal year, or the portion thereof falling after the Closing
Date), except for such exceptions, errors or irregularities as such firm
shall believe to be immaterial and such other exceptions, errors or
irregularities as shall be set forth in such report. Such report shall set
forth the agreed upon procedures performed.
(b) On or before March [31] of each calendar year (commencing in
2005), Master Servicer shall cause a firm of nationally recognized
independent public accountants (who may also render other services to
Master Servicer) to furnish a report to Owner to the effect that they have
applied certain procedures agreed upon with Master Servicer to compare the
mathematical calculations of certain amounts set forth in Master
Servicer's reports delivered pursuant to Section 2.7 during the period
covered by such report with Master Servicer's computer reports which were
the source of such amounts and that on the basis of such agreed upon
procedures and comparison, such amounts are in agreement, except for such
exceptions as they believe to be immaterial and such other exceptions as
shall be set forth in such statement.
SECTION 2.10 Notices to Transferor. If GE Capital is no longer acting as
Master Servicer, any Successor Master Servicer appointed pursuant to Section 6.2
shall deliver or make available to Owner each certificate and report required to
be prepared, forwarded or delivered thereafter pursuant to Sections 2.7, 2.8,
and 2.9.
SECTION 2.11 Collections. Master Servicer shall apply all Collections with
respect to the Transferred Receivables for each Monthly Period as described in
the Indenture and each Indenture Supplement.
SECTION 2.12 Allocations and Disbursements. With respect to each Series,
Master Servicer shall make the allocations and disbursements for such Series on
behalf of the Owner as is required to be made by the Owner under the terms of
the Indenture and the Indenture Supplement for such Series.
SECTION 2.13 New Series. Pursuant to one or more Indenture Supplements,
Owner may issue one or more new Series of Notes (a "New Issuance"), as more
fully described in the Indenture. To enable Master Servicer to perform its
obligations pursuant to Sections 2.11 and 2.12, Owner shall give reasonable
prior notice to Master Servicer of each New Issuance and shall provide Master
Servicer an opportunity to review and comment upon each Indenture Supplement.
All outstanding Series shall be equally and ratably entitled as provided herein
to the benefits of this Agreement without preference, priority or distinction,
all in accordance with the terms and provisions of this Agreement except, with
respect to any Series, as provided in the related Indenture Supplement.
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13
SECTION 2.14 Servicer Advances. On each Transfer Date, the Master Servicer
shall have the right, but not the obligation, to make an advance to the
[Collection Account] (each such advance, a "Servicer Advance") in an amount
equal to the lesser of (a) the amount of principal and interest payable but not
paid during the preceding Monthly Period by Dealers in respect of Delinquent
Receivables owned by the Issuer and (b) the Payment Date Shortfall for the
related Payment Date. The Master Servicer shall not make a Servicer Advance in
respect of a Delinquent Receivable if the Master Servicer does not reasonably
believe that future collections on such Delinquent Receivable shall equal or
exceed the amount of such Servicer Advance (and interest on such Servicer
Advance). Each Servicer Advance shall bear interest on each day until repaid in
full at a rate per annum equal to [the weighted average interest rate on the
Notes that are Outstanding] on such day.
As used in this Section 2.14, the following terms shall have the meanings
set forth below:
"Delinquent Receivable" shall mean a Receivable for which any payment of
principal or interest by the related Dealer is more than [ ] days past due and
less than [ ] days past due; provided that no Defaulted Receivable, Ineligible
Receivable (as defined in the First Tier Agreement) or Designated Ineligible
Receivable (as defined in the First Tier Agreement) shall be considered to be a
Delinquent Receivable for purposes of this definition.
"Payment Date Shortfall" means, on any Payment Date (determined as of the
preceding Transfer Date) the sum, for all Indenture Supplements, of the excess,
if any, of (a) the amount that is payable, from Series Accounts established
under such Indenture Supplement on such Payment Date, to the Indenture Trustee,
the Trustee, the Administrator and the Noteholders, over (b) the amount of funds
that are available pursuant to such Indenture Supplements (without giving effect
to any Servicer Advance) to make the payments contemplated by clause (a) of this
sentence.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of Master Servicer. Master
Servicer represents and warrants to Owner as of the date hereof and as of each
Series Closing Date:
(a) It is duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation and is duly qualified
to do business, and is in good standing, in each jurisdiction in which the
servicing of the Transferred Receivables hereunder requires it to be so
qualified, except where the failure to comply would not reasonably be
expected to have a Material Adverse Effect.
(b) It has the power and authority to execute and deliver this
Agreement and to perform the transactions contemplated hereby.
(c) This Agreement has been duly authorized, executed and delivered
by Master Servicer and constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms, subject to any
applicable bankruptcy, insolvency,
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14
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the enforceability of creditors' rights
generally and general equitable principles, whether applied in a
proceeding at law or in equity.
(d) No consent of, notice to, filing with or permits, qualifications
or other action by any Governmental Authority or any other party is
required for the due execution, delivery and performance by Master
Servicer of this Agreement, other than consents, notices, filings and
other actions which have been obtained or made or where the failure to
obtain such consent or take such action, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
(e) There is no pending or, to its actual knowledge, threatened
Litigation of a material nature against or affecting it in any court or
tribunal, before any arbitrator of any kind or before or by any
Governmental Authority (i) asserting the invalidity of this Agreement, or
(ii) seeking any determination or ruling that might materially and
adversely affect the validity or enforceability of this Agreement.
ARTICLE IV
ADDITIONAL MATTERS RELATING TO MASTER SERVICER
SECTION 4.1 Covenants of Master Servicer Regarding the Transferred
Receivables.
(a) Maintenance of Records and Books of Account. Master Servicer
shall maintain and implement administrative and operating procedures
(including the ability to recreate records evidencing the Transferred
Receivables in the event of the destruction of the originals thereof), and
keep and maintain all documents, books, computer records and other
information, reasonably necessary or advisable for the collection of all
the Transferred Receivables. Such documents, books and computer records
shall reflect all facts giving rise to the Transferred Receivables, all
payments and credits with respect thereto, and such documents, books and
computer records shall indicate the interests of Owner in the Transferred
Receivables.
(b) Servicer Default. If a Servicer Default shall have occurred and
be continuing, promptly upon request therefor, Master Servicer shall
deliver to Owner records reflecting activity through the close of business
on the Business Day immediately preceding the Servicer Default. Upon the
occurrence and during the continuation of a Servicer Default, Master
Servicer shall (i) deliver and turn over to Owner or to its
representatives, or at the option of Owner shall provide Owner its
representatives with access to, at any time, on demand of Owner, all of
Master Servicer's facilities, personnel, books and records pertaining to
the Transferred Receivables, including all Records, and (ii) allow Owner
to occupy the premises of Master Servicer where such books, records and
Records are maintained, and utilize such premises, the equipment thereon
and any personnel of Master Servicer Owner may wish to employ to
administer, service and collect the Transferred Receivables.
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15
(c) Notice of Adverse Claim. Master Servicer shall advise Owner
promptly, in reasonable detail, (i) of any Lien (other than a "Permitted
Encumbrance" as such term is defined in the Indenture) known to it made or
asserted against any Transferred Receivable, and (ii) of the occurrence of
any event known to it which would have a material adverse effect on the
aggregate value of the Transferred Receivables.
(d) Further Assurances. Master Servicer shall furnish to Owner from
time to time such statements and schedules further identifying and
describing the Transferred Receivables and such other reports in
connection with the Transferred Receivables as Owner may reasonably
request, all in reasonable detail.
SECTION 4.2 Merger or Consolidation of, or Assumption of the Obligations
of Master Servicer.
(a) Master Servicer shall not consolidate with or merge into any
other Person or convey or transfer its properties and assets substantially
as an entirety to any Person, unless:
(i) Master Servicer shall have provided prior written notice
of such proposed consolidation or merger to Owner;
(ii) the Person formed by such consolidation or into which
Master Servicer is merged or the Person which acquires by conveyance
or transfer the properties and assets of Master Servicer
substantially as an entirety shall be a corporation or other entity
organized and existing under the laws of the United States of
America or any State or the District of Columbia and, if Master
Servicer is not the surviving entity, shall expressly assume, by an
agreement supplemental hereto, executed and delivered to Owner in
form satisfactory to Owner, the performance of every covenant and
obligation of Master Servicer hereunder;
(iii) Master Servicer has delivered to Owner (A) an Officer's
Certificate stating that such consolidation, merger, conveyance or
transfer and such supplemental agreement comply with this Section
and that all conditions precedent herein provided for relating to
such transaction have been complied with, and (B) an Opinion of
Counsel to the effect that such supplemental agreement is a valid
and binding obligation of such surviving entity enforceable against
such surviving entity in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect and except
as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity); and
(iv) either (x) the Person formed by such consolidation or
into which Master Servicer is merged or the Person which acquired by
conveyance or transfer the properties and assets of Master Servicer
substantially as an entirety shall be an Eligible Servicer (taking
into account, in making such determination,
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16
the experience and operations of the predecessor Master Servicer) or
(y) upon the effectiveness of such consolidation, merger, conveyance
or transfer, a Successor Master Servicer shall have assumed the
obligations of Master Servicer in accordance with this Agreement.
(b) This Section 4.2 shall not be construed to prohibit or in any
way limit Master Servicer's ability to effectuate any consolidation or
merger pursuant to which Master Servicer would be the surviving entity.
SECTION 4.3 Access to Certain Documentation and Information Regarding the
Receivables. Master Servicer shall provide to Owner or its designees access to
the documentation regarding the Accounts and the Transferred Receivables in such
cases where Owner or such designee is required in connection with the
enforcement of the rights of Owner or any of its creditors, or by applicable
statutes or regulations to review such documentation, such access being afforded
without charge but only (i) upon reasonable request, (ii) during normal business
hours, (iii) subject to Master Servicer's normal security and confidentiality
procedures and (iv) at offices designated by Master Servicer. Nothing in this
Section 4.3 shall derogate from the obligation of any Person to observe any
applicable law prohibiting disclosure of information regarding the Dealers (or
customers of Dealers), and the failure of Master Servicer to provide access as
provided in this Section 4.3 as a result of such obligation shall not constitute
a breach of this Section 4.3.
ARTICLE V
SERVICER DEFAULTS
SECTION 5.1 Servicer Defaults. If any of the following events (each, a
"Servicer Default") shall occur (regardless of the reason therefor) with respect
to Master Servicer:
(a) any failure by Master Servicer to make any payment, transfer or
deposit on or before the date occurring five (5) Business Days after the
date such payment, transfer or deposit is required to be made or given by
Master Servicer, as the case may be; provided, that, if such failure could
not have been prevented by the exercise of reasonable due diligence by
Master Servicer and the delay or failure was caused by an act of God or
other similar occurrence, then a Servicer Default shall not be deemed to
have occurred under this Section 5.1(a) until thirty-five (35) Business
Days after the date of such failure;
(b) failure on the part of Master Servicer duly to observe or
perform in any material respect any other covenants or agreements of
Master Servicer set forth in this Agreement which has a material adverse
effect on Owner, which continues unremedied for a period of sixty (60)
days after the date on which written notice of such failure requiring the
same to be remedied shall have been given to Master Servicer by Owner;
provided, that, if such failure could not have been prevented by the
exercise of reasonable due diligence by Master Servicer and the delay or
failure was caused by an act of God or other similar occurrence, then a
Servicer Default shall not be deemed to have occurred
Servicing Agreement
17
under this Section 5.1(b) until one hundred twenty (120) days after the
date of such failure;
(c) Master Servicer delegates its duties, except as specifically
permitted under Section 2.1, and such delegation continues for fifteen
(15) days after written notice to Master Servicer by Owner;
(d) any representation, warranty or certification made by Master
Servicer in this Agreement or in any certificate delivered pursuant to
this Agreement shall prove to have been incorrect when made, which has a
material adverse effect on Owner and which continues to be incorrect in
any material respect for a period of sixty (60) days after the date on
which written notice of such error or defect, requiring the same to be
corrected or remedied, shall have been given to Master Servicer by Owner;
provided, that, if the error or defect could not have been prevented by
the exercise of reasonable due diligence by Master Servicer and the delay
or failure was caused by an act of God or other similar occurrence, then
Master Servicer shall have an additional sixty (60) days to cure the
default; or
(e) Master Servicer shall fail generally to, or admit in writing its
inability to, pay its debts as they become due; or a proceeding shall have
been instituted in a court having jurisdiction in the premises seeking a
decree or order for relief in respect of Master Servicer in an involuntary
case under any Debtor Relief Law, or for the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator, conservator or
other similar official of Master Servicer or for any substantial part of
its property, or for the winding-up or liquidation of its affairs and, if
instituted against Master Servicer, any such proceeding shall continue
undismissed or unstayed and in effect, for a period of sixty (60)
consecutive days, or any of the actions sought in such proceeding shall
occur; or the commencement by Master Servicer, of a voluntary case under
any Debtor Relief Law, or such Person's consent to the entry of an order
for relief in an involuntary case under any Debtor Relief Law, or consent
to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator, conservator or other similar
official of such Person or for any substantial part of its property, or
any general assignment for the benefit of creditors; or Master Servicer
shall have taken any corporate action in furtherance of any of the
foregoing actions;
then, in any such event, Owner may, by delivery of a Servicer Termination Notice
to Master Servicer, terminate the servicing responsibilities of Master Servicer
hereunder, without demand, protest or further notice of any kind, all of which
are hereby waived by Master Servicer. Upon the delivery of any such notice, all
authority and power of Master Servicer under this Agreement shall pass to and be
vested in the Successor Master Servicer acting pursuant to Section 6.2,
provided, that notwithstanding anything to the contrary herein, Master Servicer
agrees to act as Master Servicer and to continue to follow the procedures set
forth in this Agreement with respect to Collections on the Transferred
Receivables under this Agreement until a Successor Master Servicer has assumed
the responsibilities and obligations of Master Servicer in accordance with
Section 6.2. Master Servicer shall send written notice to Owner promptly after
becoming aware of the occurrence of any Servicer Default or any event that, with
notice or lapse of time or both, would become a Servicer Default.
Servicing Agreement
18
ARTICLE VI
SUCCESSOR MASTER SERVICER
SECTION 6.1 Resignation of Master Servicer. Master Servicer may resign in
the circumstances set forth in clause (a) or (b) of this Section 6.1.
(a) Master Servicer may resign from its obligations and duties
hereunder upon the written consent of Owner if it finds a replacement
servicer satisfying the eligibility criteria set forth in Section 6.2. No
such resignation shall become effective until the replacement servicer
shall have obtained Owner's approval and appointment pursuant to Section
6.2.
(b) Master Servicer may resign from the obligations and duties
hereby imposed on it upon determination that (i) in the determination of
Master Servicer, the performance of its duties hereunder has become
impermissible under applicable law, and (ii) there is no commercially
reasonable action which Master Servicer could take to make the performance
of its duties hereunder permissible under applicable law. No such
resignation shall become effective until a Successor Master Servicer shall
have assumed the responsibilities and obligations of Master Servicer in
accordance with Section 6.2.
SECTION 6.2 Appointment of the Successor Master Servicer. In connection
with the termination of Master Servicer's responsibilities under this Agreement
pursuant to Section 5.1 or 6.1, Owner shall appoint a successor master servicer
that shall have a long-term debt rating of at least "Baa3" by Moody's and "BBB-"
by S&P. The successor master servicer shall succeed to all rights and assume all
of the responsibilities, duties and liabilities of Master Servicer under this
Agreement (such successor master servicer being referred to as the "Successor
Master Servicer"); provided, that the Successor Master Servicer shall have no
responsibility for any actions of Master Servicer prior to the date of its
appointment as Successor Master Servicer. The Successor Master Servicer shall
accept its appointment by executing, acknowledging and delivering to Owner an
instrument in form and substance acceptable to Owner and by providing prior
written notice of such appointment to the Rating Agencies and the Indenture
Trustee.
SECTION 6.3 Duties of Master Servicer. At any time following the
appointment of a Successor Master Servicer:
(a) Master Servicer agrees that it shall terminate its activities as
Master Servicer hereunder in a manner acceptable to Owner so as to
facilitate the transfer of servicing to the Successor Master Servicer,
including timely delivery (i) to Owner of any funds that were required to
be deposited in the Collection Account, and (ii) to the Successor Master
Servicer, at a place selected by the Successor Master Servicer, of all
Servicing Records and other information with respect to the Transferred
Receivables. Master Servicer shall account for all funds and shall execute
and deliver such instruments and do such other things as may reasonably be
required to more fully and definitely vest and confirm in the Successor
Master Servicer all rights, powers, duties, responsibilities, obligations
and liabilities of Master Servicer; and
Servicing Agreement
19
(b) Master Servicer shall terminate each Sub-Servicing Agreement
that may have been entered into by it and the Successor Master Servicer
shall not be deemed to have assumed any of Master Servicer's interest
therein or to have replaced Master Servicer as a party to any such
Sub-Servicing Agreement.
SECTION 6.4 Effect of Termination or Resignation. Any termination or
resignation of Master Servicer under this Agreement shall not affect any claims
that Owner may have against Master Servicer for events or actions taken or not
taken by Master Servicer arising prior to any such termination or resignation.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 Indemnities by Master Servicer. Without limiting any other
rights that Owner or its Affiliates or any director, officer, employee, trustee
or agent or incorporator thereof (each a "Servicer Indemnified Person") may have
hereunder or under applicable law, Master Servicer hereby agrees to indemnify
each Servicer Indemnified Person from and against any and all Indemnified
Amounts which may be imposed on, incurred by or asserted against a Servicer
Indemnified Person to the extent arising out of or relating to any material
breach of Master Servicer's obligations under this Agreement; excluding,
however, Indemnified Amounts to the extent resulting from (i) bad faith, gross
negligence or willful misconduct on the part of a Servicer Indemnified Person or
(ii) uncollectible Receivables. Any Indemnified Amounts subject to the
indemnification provisions of this Section 7.1 shall be paid to Servicer
Indemnified Person within ten (10) Business Days following demand therefor.
SECTION 7.2 Limitation of Damages; Indemnified Persons. NO PARTY TO THIS
AGREEMENT SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS AGREEMENT,
ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER
PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF ANY
TRANSACTION CONTEMPLATED HEREUNDER.
SECTION 7.3 Limitation on Liability of Master Servicer and Others. Except
as provided in Section 7.1, neither Master Servicer nor any of the directors,
officers, employees or agents of Master Servicer, in its capacity as Master
Servicer (each a "Master Servicer Related Party") shall be under any liability
to Owner or any other Person for any action taken or for refraining from the
taking of any action in good faith in its capacity as Master Servicer pursuant
to this Agreement; provided, that this provision shall not protect Master
Servicer or any Master Servicer Related Party against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. Master Servicer and any Master Servicer
Related Party may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person (other than Master Servicer)
respecting any matters arising hereunder. Master Servicer shall not be under any
obligation to appear in, prosecute or defend
Servicing Agreement
20
any legal action which is not incidental to its duties as Master Servicer in
accordance with this Agreement and which in its reasonable judgment may involve
it in any expense or liability.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other parties, or whenever any of the parties desires to give or
serve upon any other parties any communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and shall be deemed to have been validly
served, given or delivered (a) upon the earlier of actual receipt and three (3)
Business Days after deposit in the United States Mail, registered or certified
mail, return receipt requested, with proper postage prepaid, (b) upon
transmission, when sent by facsimile or other electronic transmission (with such
transmission promptly confirmed by delivery of a copy by personal delivery or
United States Mail as otherwise provided in this Section 8.1), (c) one (1)
Business Day after deposit with a reputable overnight courier with all charges
prepaid or (d) when delivered, if hand-delivered by messenger, all of which
shall be addressed to the party to be notified and sent to the address or
facsimile number indicated below or to such other address (or facsimile number)
as may be substituted by notice given as herein provided. The giving of any
notice required hereunder may be waived in writing by the party entitled to
receive such notice. Failure or delay in delivering copies of any notice,
demand, request, consent, approval, declaration or other communication to any
Person designated in any written notice provided hereunder to receive copies
shall in no way adversely affect the effectiveness of such notice, demand,
request, consent, approval, declaration or other communication. Notwithstanding
the foregoing, whenever it is provided herein that a notice is to be given to
any other party hereto by a specific time, such notice shall only be effective
if actually received by such party prior to such time, and if such notice is
received after such time or on a day other than a Business Day, such notice
shall only be effective on the immediately succeeding Business Day.
If to Master Servicer:
General Electric Capital Corporation
1600 Summer Street, 4th Floor
Stamford, Connecticut 06927
Attention: Manager, Securitizations
Telephone: (203) 357-4328
Facsimile: (203) 961-2953
Servicing Agreement
|
21
If to Owner:
GE Dealer Floorplan Master Note Trust
c/o The Bank of New York (Delaware), as Trustee
101 Barclay Street, Floor 8 West (ABS Unit)
New York, NY 10286
Attention: Antonio Vayas
Telephone: (212) 815-8322
Telecopy: (212) 815-2493 or 3883
|
with a copy to:
General Electric Capital Corporation, as Administrator
1600 Summer Street, 4th Floor
Stamford, Connecticut 06927
Attention: Manager, Securitizations
Telephone: (203) 357-4328
Facsimile: (203) 961-2953
|
SECTION 8.2 Binding Effect; Assignability. This Agreement shall be binding
upon and inure to the benefit of Owner and Master Servicer and their respective
successors and permitted assigns. Except as set forth in Section 2.1, or Article
VI, Master Servicer may not assign, transfer, hypothecate or otherwise convey
any of its rights or obligations hereunder or interests herein without the
express prior written consent of Owner. Any such purported assignment, transfer,
hypothecation or other conveyance by Master Servicer without the prior express
written consent of Owner shall be void. Owner may, at any time, assign any of
its rights and obligations under this Agreement to any Person and any such
assignee may further assign at any time its rights and obligations under this
Agreement, in each case, without the consent of Master Servicer. Each of Owner
and Master Servicer acknowledges and agrees that, upon any such assignment, the
assignee thereof may enforce directly, all of the obligations of Owner or Master
Servicer hereunder, as applicable.
SECTION 8.3 Termination; Survival of Obligations. This Agreement shall
create and constitute the continuing obligations of the parties hereto in
accordance with its terms, and shall remain in full force and effect until the
date on which the outstanding balances of all Transferred Receivables have been
reduced to zero; provided, that the rights and remedies provided for herein with
respect to any breach of any representation or warranty made by Master Servicer
pursuant to Article III, the indemnification and payment provisions of Article
VII and Sections 8.4 and 8.12 shall be continuing and shall survive such
reduction.
SECTION 8.4 No Proceedings. Master Servicer hereby agrees that, from and
after the Closing Date and until the date one year plus one day following the
date on which the outstanding balances of all Transferred Receivables have been
reduced to zero, it will not, directly or indirectly, institute or cause to be
instituted against Owner any proceeding of the type referred to in Section
5.1(e); provided that the foregoing shall not in any way limit Master Servicer's
right to pursue any other creditor rights or remedies that Master Servicer may
have for claims against Owner.
Servicing Agreement
22
SECTION 8.5 Complete Agreement; Modification of Agreement. This Agreement
constitutes the complete agreement among the parties hereto with respect to the
subject matter hereof, supersedes all prior agreements and understandings
relating to the subject matter hereof, and may not be modified, altered or
amended except as set forth in Section 8.6.
SECTION 8.6 Amendments and Waivers. No amendment, modification,
termination or waiver of any provision of this Agreement, or any consent to any
departure by any party hereto therefrom, shall in any event be effective unless
the same shall be in writing and signed by each of the parties hereto.
SECTION 8.7 No Waiver; Remedies. The failure by Owner, at any time or
times, to require strict performance by Master Servicer of any provision of this
Agreement shall not waive, affect or diminish any right of Owner thereafter to
demand strict compliance and performance herewith. Any suspension or waiver of
any breach or default hereunder shall not suspend, waive or affect any other
breach or default whether the same is prior or subsequent thereto and whether
the same or of a different type. None of the undertakings, agreements,
warranties, covenants and representations of Master Servicer contained in this
Agreement and no breach or default by Master Servicer hereunder, shall be deemed
to have been suspended or waived by Owner unless such waiver or suspension is by
an instrument in writing signed by an officer or other duly authorized signatory
of Owner and directed to Master Servicer specifying such suspension or waiver.
The rights and remedies of Owner under this Agreement shall be cumulative and
nonexclusive of any other rights and remedies that Owner may have under any
other agreement, including the other Related Documents, by operation of law or
otherwise.
SECTION 8.8 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW,
BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS THEREOF) AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(a) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL
HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF
OR RELATING TO THIS AGREEMENT; PROVIDED, THAT EACH PARTY HERETO
ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY. EACH
PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY
WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF
Servicing Agreement
23
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL
SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH
ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND
OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO
SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 8.1 AND
THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH
PARTY'S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED
STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW.
(b) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED
AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS
TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND
OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 8.9 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement. Executed counterparts of this Agreement may be
delivered electronically.
SECTION 8.10 Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
SECTION 8.11 Section Titles. The section titles and table of contents
contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the
parties hereto.
SECTION 8.12 Limited Recourse.
Servicing Agreement
24
(a) The obligations of Owner under this Agreement are solely the
obligations of Owner. No recourse shall be had for any obligation or claim
arising out of or based upon this Agreement against any incorporator,
shareholder, officer, manager, member or director, past, present or
future, of Owner or of any successor or of its constituent members or its
other Affiliates, either directly or through Owner or any successor,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by acceptance hereof and as part of the consideration for the
acceptance hereof, expressly waived and released. Any accrued obligations
owing by Owner under this Agreement shall be payable by Owner solely to
the extent that funds are available therefor from time to time in
accordance with the provisions of Section 2.11 ------------ and the
priority of payments in the applicable Indenture Supplement (provided that
such accrued obligations shall not be extinguished until paid in --------
full).
(b) The obligations of Master Servicer under this Agreement are
solely the obligations of Master Servicer. No recourse shall be had for
the payment of any amount owing hereunder or any other obligation or claim
arising out of or based upon this Agreement, against any shareholder,
employee, officer, manager, member or director, agent or organizer, past,
present or future, of Master Servicer or of any successor thereto, either
directly or through Master Servicer or any successor thereto, whether by
virtue of any constitution, statute or rule of law or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by
acceptance hereof and as part of the consideration for the acceptance
hereof, expressly waived and released.
SECTION 8.13 Further Assurances. Master Servicer shall, at its sole cost
and expense, promptly and duly execute and deliver any and all further
instruments and documents, and take such further action, that may be necessary
or desirable or that Owner may request to enable Owner to exercise and enforce
its rights under this Agreement or otherwise carry out more effectively the
provisions and purposes of this Agreement.
SECTION 8.14 Pledge of Assets. Master Servicer hereby acknowledges that
the Owner has granted a security interest in the Transferred Receivables to the
Indenture Trustee under the Indenture, and hereby waives any defenses it may
have against the Indenture Trustee for the enforcement of this Agreement in the
event of foreclosure by the Indenture Trustee. Accordingly, the parties hereto
agree that, in the event of foreclosure by the Indenture Trustee, the Indenture
Trustee shall have the right to enforce this Agreement and the full performance
by the parties hereto of their obligations and undertakings set forth herein.
Master Servicer hereby agrees to deliver to the Indenture Trustee a copy of all
notices to be delivered by Master Servicer to Owner hereunder.
SECTION 8.15 Waiver of Setoff. Master Servicer hereby waives any right of
setoff that it may have for amounts owing to it under or in connection with this
Agreement.
SECTION 8.16 Limitation of Liability of the Trustee. Notwithstanding
anything contained herein to the contrary, this instrument has been signed by
The Bank of New York (Delaware), not in its individual capacity but solely in
its capacity as Trustee of Owner, and in no event shall The Bank of New York
(Delaware), in its individual capacity, or any beneficial
Servicing Agreement
25
owner of Owner have any liability for the representations, warranties,
covenants, agreements or other obligations of Owner hereunder, as to all of
which recourse shall be had solely to the assets of Owner. For all purposes of
this Agreement, in the performance of any duties or obligations of Owner
thereunder, the Trustee shall be subject to, and entitled to the benefits of,
the terms and provisions of Article VIII of the Trust Agreement.
[Signatures Follow]
Servicing Agreement
26
IN WITNESS WHEREOF, the parties have caused this Servicing Agreement to be
executed as of the date first above written.
GE DEALER FLOORPLAN MASTER NOTE
TRUST, as Owner
By: The Bank of New York (Delaware), not in its
individual capacity, but solely as Trustee on
behalf of Owner
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
Servicing Agreement
S-1
GENERAL ELECTRIC CAPITAL
CORPORATION, as Master Servicer
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
Servicing Agreement
S-2
SCHEDULE 2.7
REPORTING REQUIREMENTS
Master Servicer shall prepare a monthly report on behalf of Owner for
each Series that is outstanding in the manner described in the Indenture
Supplement for such Series. Master Servicer shall also provide the Indenture
Trustee with an electronic or written form of such report for each such Series
for delivery as set forth in the Indenture Supplement for such Series.
Servicing Agreement
2.7-1
EXHIBIT A
FORM OF ANNUAL MASTER SERVICER'S CERTIFICATE
(To be delivered on or before March [31] of each calendar year
(commencing in 2005) pursuant to Section 2.8
of the Servicing Agreement referred to below)
GE DEALER FLOORPLAN MASTER TRUST
The undersigned, a duly authorized representative of General Electric
Capital Corporation, as Master Servicer ("GECC"), pursuant to the Servicing
Agreement dated as of [ ], 2004 (as may be further amended and supplemented from
time to time, the "Agreement"), between GECC and GE Dealer Floorplan Master Note
Trust, does hereby certify that:
1. GECC is, as of the date hereof, Master Servicer under the Agreement.
Capitalized terms used in this Certificate have their respective meanings as set
forth in the Agreement.
2. The undersigned is an Authorized Officer who is duly authorized
pursuant to the Agreement to execute and deliver this Certificate to the Owner.
3. A review of the activities of Master Servicer during the fiscal year
ended __________, ____, and of its performance under the Agreement was conducted
under my supervision.
4. Based on such review, Master Servicer has, to the best of my
knowledge, performed in all material respects its obligations under the
Agreement throughout such year and no default in the performance of such
obligations has occurred or is continuing except as set forth in paragraph 5.
5. The following is a description of each default in the performance of
Master Servicer's obligations under the provisions of the Agreement known to me
to have been made by Master Servicer during the fiscal year ended ___________,
_____, which sets forth in detail (i) the nature of each such default, (ii) the
action taken by Master Servicer, if any, to remedy each such default and (iii)
the current status of each such default: [if applicable, insert "None."]
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
this ______ day of ____________, 20___.
GENERAL ELECTRIC CAPITAL
CORPORATION, as Master Servicer
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
Servicing Agreement
A-1
Exhibit 4.16
SUB-SERVICING AGREEMENT
Dated as of [ ], 2004
by and between
GENERAL ELECTRIC CAPITAL CORPORATION,
as the Master Servicer,
and
[NAME OF SUB-SERVICER],
as the Sub-Servicer
Sub-Servicing Agreement
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions 1
SECTION 1.2 Other Interpretive Matters 1
ARTICLE II
APPOINTMENT OF THE SUB-SERVICER; CERTAIN DUTIES
AND RESPONSIBILITIES OF THE SUB-SERVICER
SECTION 2.1 Appointment of the Sub-Servicer 1
SECTION 2.2 Duties and Responsibilities of the Sub-Servicer 1
SECTION 2.3 Reporting Requirements 1
SECTION 2.4 Sub-Servicing Fees 1
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of the Sub-Servicer 2
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 Notices 2
SECTION 4.2 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL 3
SECTION 4.3 Counterparts 5
SECTION 4.4 Severability 5
SECTION 4.5 Section Titles 5
SECTION 4.6 Termination 5
SECTION 4.7 Limited Recourse 5
|
Sub-Servicing Agreement
This SUB-SERVICING AGREEMENT, dated as of [ ], 2004 (this "Agreement"), by
and between GENERAL ELECTRIC CAPITAL CORPORATION ("GE Capital"), in its capacity
as the master servicer (the "Master Servicer") and [NAME OF SUB-SERVICER] ("[
]"), in its capacity as the sub-servicer (the "Sub-Servicer").
In consideration of the premises and the mutual covenants hereinafter
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in Section 1.1 of the Servicing
Agreement, dated as of [ ], 2004 by and between GE Dealer Floorplan Master Note
Trust ("Owner") and the Master Servicer (the "Servicing Agreement") .
SECTION 1.2 Other Interpretive Matters. For purposes of this Agreement,
the other interpretive matters set forth in Section 1.2 of the Servicing
Agreement shall govern.
ARTICLE II
APPOINTMENT OF THE SUB-SERVICER; CERTAIN DUTIES AND
RESPONSIBILITIES OF THE SUB-SERVICER.
SECTION 2.1 Appointment of the Sub-Servicer. The Master Servicer hereby
appoints the Sub-Servicer as its agent to sub-service the Transferred
Receivables originated by [name of Originator] (such assets, the "Sub-Serviced
Assets").
SECTION 2.2 Duties and Responsibilities of the Sub-Servicer. Subject to
the provisions of this Agreement, the Sub-Servicer shall service the
Sub-Serviced Assets under the same terms as the Master Servicer is bound under
the Servicing Agreement and with the same degree of care as required by Section
2.2 thereof. Without limiting the generality of the foregoing, the Sub-Servicer
shall comply with Section 2.6 of the Servicing Agreement as if all references
therein to "Master Servicer" were references to the Sub-Servicer.
SECTION 2.3 Reporting Requirements. The Sub-Servicer agrees that it shall
assist the Master Servicer in preparing and delivering the financial statements,
notices and other information contemplated by Section 2.7 of the Servicing
Agreement.
SECTION 2.4 Sub-Servicing Fees. On each Payment Date, the Master Servicer
will pay to the Sub-Servicer, as compensation for the Sub-Servicer's
subservicing activities hereunder and as reimbursement for the Sub-Servicer's
reasonable expenses in connection therewith, a fee equal to one-twelfth of the
product of (a) [ ] percent ( %) and (b) the total outstanding balance of the
Sub-Serviced Assets as of the beginning of the prior Monthly Period.
Sub-Servicing Agreement
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of the Sub-Servicer. The
Sub-Servicer represents and warrants to the Master Servicer as of the Closing
Date as follows:
(a) It is a corporation, duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation and is
duly qualified to do business, and is in good standing, in each
jurisdiction in which the servicing of the Sub-Serviced Assets hereunder
requires it to be so qualified, except where the failure to comply would
not reasonably be expected to have a [material adverse effect on the
ability of the Sub-Servicer to service the Sub-Serviced Assets].
(b) It has the power and authority to execute and deliver this
Agreement and to perform the transactions contemplated hereby.
(c) This Agreement has been duly authorized, executed and
delivered by the Sub-Servicer and constitutes its legal, valid and binding
obligation enforceable against it in accordance with its terms, subject to
any applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the
enforceability of creditors' rights generally and general equitable
principles, whether applied in a proceeding at law or in equity.
(d) No consent of, notice to, filing with or permits,
qualifications or other action by any Governmental Authority or any other
party is required for the due execution, delivery and performance by the
Sub-Servicer of this Agreement, other than consents, notices, filings and
other actions which have been obtained or made or where the failure to
obtain such consent or take such action, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
(e) There is no pending or, to its actual knowledge, threatened
Litigation of a material nature against or affecting it, its officers or
directors, or its property, in any court or tribunal, before any
arbitrator of any kind or before or by any Governmental Authority (i)
asserting the invalidity of this Agreement, or (ii) seeking any
determination or ruling that might materially and adversely affect the
validity or enforceability of this Agreement.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any party hereto
by any other party hereto, or whenever any party hereto desires to give or serve
upon any other party hereto any communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and shall be deemed to have been validly
served, given
Sub-Servicing Agreement
2
or delivered (a) upon the earlier of actual receipt and three Business Days
after deposit in the United States Mail, registered or certified mail, return
receipt requested, with proper postage prepaid, (b) upon transmission, when sent
by facsimile or other electronic transmission (with such transmission promptly
confirmed by delivery of a copy by personal delivery or United States Mail as
otherwise provided in this Section 4.1), (c) one Business Day after deposit with
a reputable overnight courier with all charges prepaid or (d) when delivered, if
hand-delivered by messenger, all of which shall be addressed to the party to be
notified and sent to the address or facsimile number indicated below or to such
other address (or facsimile number) as may be substituted by notice given as
herein provided. The giving of any notice required hereunder may be waived in
writing by the party entitled to receive such notice. Failure or delay in
delivering copies of any notice, demand, request, consent, approval, declaration
or other communication to any Person designated in any written notice provided
hereunder to receive copies shall in no way adversely affect the effectiveness
of such notice, demand, request, consent, approval, declaration or other
communication. Notwithstanding the foregoing, whenever it is provided herein
that a notice is to be given to any other party hereto by a specific time, such
notice shall only be effective if actually received by such party prior to such
time, and if such notice is received after such time or on a day other than a
Business Day, such notice shall only be effective on the immediately succeeding
Business Day.
If to the Master Servicer:
General Electric Capital Corporation
1600 Summer Street, 4th Floor
Stamford, Connecticut 06927
Attention: Manager, Securitizations
Telephone: (203) 357-4328
Facsimile: (203) 961-2953
If to Sub-Servicer:
[ ],
as Sub-Servicer
[ ]
[ ]
Attention: [ ]
Telephone: [ ]
Facsimile: [ ]
|
SECTION 4.2 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW,
BUT WITHOUT REGARD TO ANY OTHER
Sub-Servicing Agreement
3
CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES
OF AMERICA.
(a) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL
HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF
OR RELATING TO THIS AGREEMENT; PROVIDED, THAT EACH PARTY HERETO
ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY. EACH
PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY
WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS
TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE
BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS
ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 4.1 AND THAT SERVICE SO MADE
SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT
THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER
POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY
PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(b) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED
AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS
TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND
OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Sub-Servicing Agreement
4
SECTION 4.3 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement. Executed counterparts may be delivered electronically.
SECTION 4.4 Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
SECTION 4.5 Section Titles. The section titles and table of contents
contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the
parties hereto.
SECTION 4.6 Termination. This Agreement and the terms hereof shall remain
in full force and effect until the earliest of (a) the date on which the
outstanding balances of the Sub-Serviced Assets have been reduced to zero, (b)
the date that the Master Servicer gives the Sub-Servicer notice that this
Agreement is terminated and (c) 30 days (or earlier in the discretion of the
Master Servicer) after the Sub-Servicer gives the Master Servicer written notice
that it wishes to terminate this Agreement; provided, however, the provisions
set forth in Sections 4.7, 4.8 and 4.9 shall survive any termination of this
Agreement.
SECTION 4.7 Limited Recourse.
(a) The obligations of the Master Servicer under this Agreement
are solely the obligations of the Master Servicer. No recourse shall be
had for any obligation or claim arising out of or based upon this
Agreement against any incorporator, shareholder, officer, manager, member
or director, past, present or future, of the Master Servicer or of any
successor or of its constituent members or its other Affiliates, either
directly or through the Master Servicer or any successor, whether by
virtue of any constitution, statute or rule of law or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by
acceptance hereof and as part of the consideration for the acceptance
hereof, expressly waived and released. For avoidance of doubt, the
Sub-Servicer shall have no claim against Owner or the Transferor arising
under or in connection with this Agreement.
(b) The obligations of the Sub-Servicer under this Agreement are
solely the obligations of the Sub-Servicer. No recourse shall be had for
the payment of any amount owing hereunder or any other obligation or claim
arising out of or based upon this Agreement, against any shareholder,
employee, officer, manager, member or director, agent or organizer, past,
present or future, of the Sub-Servicer or of any successor thereto, either
directly or through the Sub-Servicer or any successor thereto, whether by
virtue of any constitution, statute or rule of law or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by
acceptance hereof and as part of the consideration for the acceptance
hereof, expressly waived and released. For avoidance of doubt, the
Sub-Servicer shall not be liable for uncollectible Sub-Serviced Assets.
Sub-Servicing Agreement
5
[Signatures Follow]
Sub-Servicing Agreement
6
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective representatives thereunto duly authorized as of the date
first above written.
GENERAL ELECTRIC CAPITAL CORPORATION,
as Master Servicer
By: ____________________________________________
Name:
Title:
Sub-Servicing Agreement
S-1
[NAME OF SUB-SERVICER], as Sub-Servicer
By: ____________________________________________
Name:
Title:
Sub-Servicing Agreement
S-2
Exhibit 4.17
ADMINISTRATION AGREEMENT
among
GE DEALER FLOORPLAN MASTER NOTE TRUST,
as Trust,
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrator,
and
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity, but solely as trustee
Dated as of [______], 2004
Administration Agreement
TABLE OF CONTENTS
PAGE
1. Duties of the Administrator............................................................................ 1
2. Records................................................................................................ 7
3. Compensation........................................................................................... 7
4. Additional Information to Be Furnished to the Trust.................................................... 7
5. Independence of the Administrator...................................................................... 7
6. No Joint Venture....................................................................................... 7
7. Other Activities of the Administrator.................................................................. 7
8. Term of Agreement; Resignation and Removal of the Administrator........................................ 8
9. Action upon Termination, Resignation or Removal........................................................ 9
10. Notices................................................................................................ 9
11. Amendments............................................................................................. 10
12. Successors and Assigns................................................................................. 10
13. Governing Law.......................................................................................... 10
14. Other Interpretive Matters............................................................................. 12
15. Headings............................................................................................... 12
16. Counterparts........................................................................................... 12
17. Severability........................................................................................... 12
18. Not Applicable to General Electric Capital Corporation in Other Capacities............................. 12
19. Limitation of Liability of the Trustee................................................................. 12
20. Indemnification........................................................................................ 13
21. No Proceedings......................................................................................... 13
|
Administration Agreement
-i-
ADMINISTRATION AGREEMENT dated as of [______], 2004, among GE DEALER
FLOORPLAN MASTER NOTE TRUST, a Delaware statutory trust (the "Trust"), GENERAL
ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as administrator (the
"Administrator") and The Bank of New York (Delaware), as Trustee ("Trustee").
RECITALS
WHEREAS, the Trust has entered into a Master Indenture, dated of even date
herewith (as amended and supplemented by any Indenture Supplement, or otherwise,
from time to time in accordance with the provisions thereof, the "Indenture"),
between the Trust and Wilmington Trust Company, as indenture trustee ("Indenture
Trustee"), to provide for the issuance of its asset backed notes (the "Notes")
from time to time pursuant to one or more indenture supplements. Capitalized
terms used herein and not otherwise defined herein are defined in the Indenture;
WHEREAS, the Trust has entered into certain agreements in connection with
the issuance of the Notes and the issuance of the Transferor Certificate (as
defined in the Trust Agreement) and transactions related thereto, including (i)
the Second Tier Agreement, (ii) the Servicing Agreement, (iii) the Trust
Agreement, and (iv) the Indenture (collectively, the "Related Documents");
WHEREAS, pursuant to the Related Documents, the Trust and Trustee are
required to perform certain duties in connection with: (a) the Notes and the
collateral therefor pledged pursuant to the Indenture (the "Collateral") and (b)
the Transferor Certificate;
WHEREAS, the Trust and Trustee desire to have the Administrator perform
certain of the duties of the Trust and Trustee referred to in the preceding
clause, and to provide such additional services consistent with this Agreement
and the Related Documents as the Trust or Trustee may from time to time request;
and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Trust and
Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual terms and covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. Duties of the Administrator.
(a) Duties with Respect to the Second Tier Agreement. The Administrator,
on behalf of the Trust, shall perform the administrative duties of the Trust
under the Second Tier Agreement. The Administrator, on behalf of the Trust,
shall monitor the performance of the Trust and shall advise the Trust when
action is necessary to comply with the Trust's duties under the Second Tier
Agreement. The Administrator, on behalf of the Trust, shall prepare for
execution by the Trust or shall cause the preparation by other appropriate
Persons of all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Trust (or Trustee) to prepare, file or
deliver pursuant to the Second Tier Agreement. In furtherance of the foregoing,
the Administrator, on behalf of the Trust (or Trustee) shall take all
appropriate action that is the duty of the Trust to take pursuant to such
documents, including,
Administration Agreement
without limitation, such of the foregoing as are required with respect to the
following matters (references in this section are to sections of the Second Tier
Agreement):
(i) the duty to maintain possession of the Account Schedules
delivered pursuant to the Second Tier Agreement (Section 2.1);
(ii) the duty to cause the Trust[, to the extent the Trust has
available funds,] to pay the Purchase Prices pursuant to the Second Tier
Agreement (Section 2.4);
(iii) (A) the preparation and the execution of any Reassignment (as
defined in the Second Tier Agreement) or any other documents and
instruments of transfer and (B) the duty to take such actions as requested
by the Seller (as defined in the Second Tier Agreement) to effect the
conveyance of the Transferred Receivables (as defined in the Second Tier
Agreement) (Section 2.7); and
(iv) (A) the notification to the Seller (as defined in the Second
Tier Agreement) of any breach in representation or warranty of the Seller
(as defined in the Second Tier Agreement) under the Second Tier Agreement
or (B) a reassignment of the Transferred Receivables (as defined in the
Second Tier Agreement) if such breach is not cured as provided in Section
6.1 of the Second Tier Agreement (Section 6.1).
(b) Duties with Respect to the Servicing Agreement. The Administrator,
on behalf of the Trust, shall perform the administrative duties of the Trust
under the Servicing Agreement. The Administrator, on behalf of the Trust, shall
monitor the performance of the Trust and shall advise the Trust when action is
necessary to comply with the Trust's duties under the Servicing Agreement. The
Administrator, on behalf of the Trust, shall prepare for execution by the Trust
or shall cause the preparation by other appropriate Persons of all such
documents, reports, filings, instruments, certificates and opinions as it shall
be the duty of the Trust (or Trustee) to prepare, file or deliver pursuant to
the Servicing Agreement. In furtherance of the foregoing, the Administrator, on
behalf of the Trust shall take all appropriate action that is the duty of the
Trust (or Trustee) to take pursuant to such documents, including, without
limitation, such of the foregoing as are required with respect to the following
matters (references in this section are to sections of the Servicing Agreement):
(i) the notification to the Master Servicer prior to any
designation of (A) additional or removed Accounts, or (B) any additional
Originator (Section 2.2);
(ii) (A) the duty to furnish the Master Servicer with powers of
attorney and other documents necessary or appropriate to enable the Master
Servicer to carry out its servicing duties and (B) the duty to assist the
Master Servicer in collecting the Transferred Receivables (Section 2.4);
(iii) (A) the notification to the Master Servicer of a breach of the
applicable covenants under Section 2.6 of the Servicing Agreement and (B)
the execution and the delivery of any documents or instruments of transfer
or assignment requested by the Master Servicer to effect the conveyance of
the Transferred Receivables to the Master Servicer (Section 2.6);
Administration Agreement
-2-
(iv) the delivery of a Servicer Termination Notice (as defined in
the Servicing Agreement) to the Master Servicer (Section 5.1); and
(v) the appointment of a Successor Servicer (Section 6.2).
(c) Duties with Respect to the Indenture. The Administrator, on behalf
of the Trust, shall perform the administrative duties of the Trust under the
Indenture. The Administrator, on behalf of the Trust, shall monitor the
performance of the Trust and shall advise the Trust when action is necessary to
comply with the Trust's duties under the Indenture. The Administrator, on behalf
of the Trust, shall prepare for execution by the Trust or shall cause the
preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of the
Trust (or Trustee) to prepare, file or deliver pursuant to the Indenture. In
furtherance of the foregoing, the Administrator, on behalf of the Trust (or
Trustee) shall take all appropriate action that is the duty of the Trust to take
pursuant to such documents, including, without limitation, such of the foregoing
as are required with respect to the following matters (references in this
section are to sections of the Indenture):
(i) (A) the preparation of or the obtaining of the documents and
instruments required for authentication of the Notes and (B) the delivery
of the same to the Indenture Trustee (Sections 2.2, 2.3 and 2.5);
(ii) (A) the duty to cause the Note Register to be kept, (B) the
appointment of a successor Note Registrar, (C) the notification to the
Indenture Trustee of any appointment of a new Note Registrar or the Note
Registrar's change in location, (D) the preparation of a new Note upon the
surrender of a Note for transfer and (E) the appointment of a co-transfer
agent if any Series of Notes is listed on the Luxembourg Stock Exchange
(Section 2.4);
(iii) the notification to the Indenture Trustee of the date on which
the Trust expects that the final installment of principal of and interest
on the Notes will be paid (Section 2.7);
(iv) (A) the notification to the Indenture Trustee and each Rating
Agency of a New Issuance and (B) the delivery of any Indenture Supplement,
Series Enhancement and Tax Opinion to the Indenture Trustee (Section 2.8);
(v) the delivery of any Notes to the Indenture Trustee for
cancellation (Section 2.9);
(vi) the communication with any Clearing Agency (Section 2.10 and
2.11);
(vii) (A) the appointment of a successor Clearing Agency and (B) the
notification to the Indenture Trustee that the Clearing Agency is no
longer willing or able to discharge its responsibilities under the Note
Depository Agreement and that the Trust is unable to locate a successor
Clearing Agency (Section 2.12);
Administration Agreement
-3-
(viii) the notification to the Indenture Trustee thirty (30) days
prior to of any change in the location of the Trust's offices or its
jurisdiction of organization (Section 3.2);
(ix) the duty to cause each Paying Agent to comply with its
obligations under the Indenture (Section 3.3);
(x) the duty to cause the Trust to (A) keep in full effect its
existence, rights and franchises as a Delaware statutory trust and (B)
observe and comply in all material respects with (I) all laws applicable
to the Trust (II) all requisite and appropriate organizational and other
formalities in the management of the Trust's business and affairs and
(III) conduct the transactions contemplated thereby (Section 3.4);
(xi) the duty to cause the preparation and delivery of all
supplements and amendments to the Indenture in accordance with Section 3.5
of the Indenture (Section 3.5);
(xii) the delivery of an Opinion of Counsel to the Indenture Trustee
under Section 3.6 of the Indenture (Section 3.6);
(xiii) the duty to cause the Trust (A) to punctually perform and
observe its obligations and agreements under the Related Documents,
including filing or causing to be filed all UCC financing statements and
continuation statements pursuant to the Related Documents, (B) to enforce
the obligations of the Master Servicer under the Servicing Agreement (C)
to perform the reasonable actions necessary to remedy any Servicer
Default, (D) to deliver a notice to the Master Servicer of any Servicer
Default as required under Section 3.7(d) of the Indenture, (E) to exercise
its rights to terminate the Master Servicer, (F) to obtain the consent of
the Noteholders upon a voluntary dismissal of the Master Servicer, (G) to
appoint a Successor Servicer, (H) to notify the Indenture Trustee upon any
termination of the Master Servicer's rights and powers under the Servicing
Agreement and each appointment of a Successor Servicer, (I) to provide, or
to cause the Master Servicer to provide, the Trustee access to any
documents regarding the Accounts and the Transferred Receivables and (J)
to provide notice to the Rating Agencies of a merger or consolidation of
the Master Servicer or an Originator (Section 3.7);
(xiv) to contest or to pay all taxes on behalf of the Trust when due
and payable (Section 3.8);
(xv) the delivery of an Officer's Certificate to the Indenture
Trustee under Section 3.9 of the Indenture (Section 3.9);
(xvi) the delivery of an Officer's Certificate, Opinion of Counsel
and Officer's Certificate to the Indenture Trustee under Sections 3.10,
4.1, 9.1(b) and 10.1 of the Indenture (Sections 3.10, 4.1, 9.1(b) and
10.1) or as may otherwise be required pursuant to the Indenture;
(xvii) the notification to the Indenture Trustee and the Rating
Agencies of each Early Amortization Event, Event of Default and Servicer
Default and (B) the delivery of
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an Officer's Certificate to the Indenture Trustee required under Section
3.12 of the Indenture (Section 3.12);
(xviii) (A) the preparation of and the delivery of any further
instruments and (B) the performance of any further acts as may be
reasonably necessary to carry out the provisions of the Indenture (Section
3.13);
(xix) the duty to cause the Trust to take all such lawful actions to
compel or secure the performance and observance by the Master Servicer or
the Transferor of their obligations to the Trust (Section 5.15);
(xx) the delivery, or the duty to cause the Master Servicer to deliver,
to each Noteholder such information as may be required to enable such
Noteholder to prepare any income tax returns (Section 6.6);
(xxi) (A) the removal of the Indenture Trustee and (B) the appointment of
a successor Indenture Trustee in accordance with Section 6.8 of the
Indenture (Section 6.8);
(xxii) the notification to the Indenture Trustee in writing if any of the
Notes become listed on any stock exchange or market trading system
(Section 6.14);
(xxiii) (A) the duty to cause the Paying Agent (other than the Indenture
Trustee) to pay the Indenture Trustee any sums held in trust by such
Paying Agent with respect to the Notes and (B) the appointment of each
Paying Agent (Section 6.16);
(xxiv) the duty to furnish to the Indenture Trustee a list of Noteholders
as required pursuant to Section 7.1 of the Indenture (Section 7.1);
(xxv) (A) the filing with the Indenture Trustee of copies of reports or
documents required pursuant to the Securities Exchange Act and the
Commission, (B) the delivery of the summaries of any information required
to be filed with the Commission to the Indenture Trustee and (C) the
notification to the Indenture Trustee of any change in the Trust's fiscal
year (Section 7.3);
(xxvi) (A) the delivery of an Officer's Certificate to the Indenture
Trustee and (B) the preparation and the delivery any Supplemental
Indentures (Sections 9.1 and 9.2);
(xxvii) (A) the preparation and the delivery of any agreement entered into
with a Noteholder pursuant to Section 10.6 of the Indenture and (B) the
delivery of a copy of such agreement to the Indenture Trustee (Section
10.6);
(xxviii) the filing of all appropriate financing statements (Section
2.15); and
(xxix) the duties of the Trust pursuant to any Indenture Supplement.
(d) Duties with Respect to Sale of Notes. The Administrator, on behalf
of the Trust, shall perform the administrative duties of the Trust under any
note purchase agreement, loan
Administration Agreement
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agreement or underwriting agreement entered into in connection with the issuance
of any Notes. The Administrator, on behalf of the Trust, shall monitor the
performance of the Trust and shall advise the Trust when action is necessary to
comply with the Trust's duties under any note purchase agreement, loan agreement
or underwriting agreement. The Administrator, on behalf of the Trust, shall
prepare for execution by the Trust or shall cause the preparation by other
appropriate Persons of all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Trust (or Trustee) to
prepare, file or deliver pursuant any note purchase agreement, loan agreement or
underwriting agreement. In furtherance of the foregoing, the Administrator, on
behalf of the Trust (or Trustee) shall take all appropriate action that is the
duty of the Trust to take pursuant to such documents.
(e) Duties with Respect to the Trust.
(i) The Administrator shall perform such calculations, and shall
prepare for execution by the Trust (or the Trustee, on behalf of the
Trust) or shall cause the preparation by other appropriate Persons, of all
such documents, reports, filings, instruments, certificates and opinions,
as it shall be the duty of the Trust (or the Trustee, on behalf of the
Trust), to perform, prepare, file or deliver pursuant to the Related
Documents. At the request of the Trust, the Administrator shall take all
appropriate action that it is the duty of the Trust (or the Trustee, on
behalf of the Trust), to take pursuant to the Related Documents. Subject
to Section 5, and in accordance with the directions of the Trust (or the
Trustee, on behalf of the Trust), the Administrator, on behalf of the
Trust, shall administer, perform or supervise the performance of such
other activities permitted by the Related Documents as are not covered by
any of the foregoing and as are expressly requested by the Trust (or the
Trustee, on behalf of the Trust), and are reasonably within the capability
of the Administrator.
(ii) The Administrator, on behalf of the Trust, shall perform the
duties specified in Section 9.2 of the Trust Agreement required to be
performed in connection with the resignation or removal of the Trustee,
and any other duties expressly required to be performed by the
Administrator under the Trust Agreement.
(iii) In carrying out the foregoing duties or any of its other
obligations under this Agreement or the other Related Documents, the
Administrator may enter into transactions with or otherwise deal with any
of its Affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any directions
received from the Trust and shall be, in the Administrator's opinion, no
less favorable to the Trust than would be available from unaffiliated
parties.
(iv) The Administrator hereby agrees to execute on behalf of the
Trust all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Trust to prepare, file or deliver
pursuant to the Related Documents or otherwise by law.
(f) Non-Ministerial Matters.
Administration Agreement
-6-
(i) With respect to matters that in the reasonable judgment of the
Administrator are non-ministerial, the Administrator shall not take any
action unless within a reasonable time before the taking of such action
the Administrator shall have notified the Trustee or the Trust, as
applicable, of the proposed action and the Trustee or the Trust, as
applicable, shall have consented or provided an alternative direction. For
the purpose of the preceding sentence, "non-ministerial matters" shall
include, without limitation:
(A) the initiation of any claim or lawsuit by the Trust and
the compromise of any action, claim or lawsuit brought by or against
the Trust (other than in connection with the collection of the
Transferred Receivables);
(B) the amendment, change, supplement or modification of the
Related Documents other than an Indenture Supplement; and
(C) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Administrators or
successor Servicers, or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee of its obligations
under the Indenture.
(ii) Notwithstanding anything to the contrary in this Agreement,
the Administrator shall not be obligated to, and shall not take any other
action that the Trust directs the Administrator not to take on its behalf.
(g) Administrator Not Assuming Duties of Master Servicer. For avoidance
of doubt, the Administrator is not responsible for taking any actions that are
the duty of the Master Servicer pursuant to the Servicing Agreement.
2. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Trust or its
designees, at any time during normal business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to $[___] per
month payable in arrears on each Payment Date, which payment shall be solely an
obligation of the Trust.
4. Additional Information to be Furnished to the Trust. The
Administrator shall furnish to the Trust from time to time such additional
information regarding the Collateral as the Trust shall reasonably request.
5. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Trust or Trustee with respect to the manner in
which it accomplishes the performance of its obligations hereunder. Unless
expressly authorized by the Trust, the Administrator shall have no authority to
act for or represent the Trust in any way (other than as permitted hereunder)
and shall not otherwise be deemed an agent of the Trust.
Administration Agreement
-7-
6. No Joint Venture. Nothing contained in this Agreement: (i) shall
constitute the Administrator and the Trust as members of any partnership, joint
venture, association, syndicate, unincorporated business or other separate
entity, (ii) shall be construed to impose any liability as such on any of them
or (iii) shall be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the others.
7. Other Activities of the Administrator. Nothing herein shall prevent
the Administrator or its Affiliates from engaging in other businesses or, in
their sole discretion, from acting in a similar capacity as an administrator for
any other Person even though such Person may engage in business activities
similar to those of the Trust.
8. Term of Agreement; Resignation and Removal of the Administrator.
(a) This Agreement shall continue in force until the dissolution of the
Trust, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 8(g), the Administrator may resign its duties
hereunder by providing the Trust and the Master Servicer with at least sixty
(60) days' prior written notice.
(c) Subject to Section 8(e), the Trust may remove the Administrator
without cause by providing the Administrator and the Master Servicer with at
least sixty (60) days' prior written notice.
(d) Subject to Section 8(e), at the sole option of the Trust, the
Administrator may be removed immediately upon written notice of termination from
the Trust to the Administrator and the Transferor if any of the following events
shall occur:
(i) the Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such default, shall
not cure such default within ten (10) days (or, if such default cannot be
cured in such time, shall not give within ten (10) days such assurance of
cure as shall be reasonably satisfactory to the Trust);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have been
vacated within sixty (60) days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect or appoint a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official for the
Administrator or any substantial part of its property or order the
winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment
of a receiver, liquidator, assignee, trustee, custodian, sequestrator or
similar official for the Administrator or any substantial part of its
property, shall consent to the taking of possession by any such official
of any substantial part of its property, shall make any general assignment
for the benefit of creditors or shall fail generally to pay its debts as
they become due.
Administration Agreement
-8-
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this subsection shall occur, it shall give written notice
thereof to the Trust, the Master Servicer and the Indenture Trustee within seven
(7) days after the happening of such event.
(e) Upon the Administrator's receipt of notice of termination, pursuant
to Section 8(c) or 8(d), or the Administrator's resignation in accordance with
this Agreement, the predecessor Administrator shall continue to perform its
functions as Administrator under this Agreement, in the case of termination,
only until the date specified in such termination notice or, if no such date is
specified in a notice of termination, until receipt of such notice and, in the
case of resignation, until the later of: (x) the date that is forty-five (45)
days from the delivery to the Trust, the Indenture Trustee and the Master
Servicer of written notice of such resignation (or written confirmation of such
notice) in accordance with this Agreement and (y) the date upon which the
predecessor Administrator shall become unable to act as Administrator, as
specified in the notice of resignation and accompanying Opinion of Counsel. In
the event of the Administrator's termination hereunder, the Trust shall appoint
a successor Administrator, and the successor Administrator shall accept its
appointment by a written assumption. No resignation or removal of the
Administrator pursuant to this Section shall be effective until: (i) a successor
Administrator shall have been appointed by the Trust and (ii) such successor
Administrator shall have agreed in writing to be bound by the terms of this
Agreement in the same manner as the Administrator is bound hereunder.
(f) Upon appointment, the successor Administrator shall be the successor
in all respects to the predecessor Administrator and shall be subject to all the
responsibilities, duties and liabilities arising thereafter relating thereto
placed on the predecessor Administrator and shall be entitled to the
compensation specified in Section 3 and all the rights granted to the
predecessor Administrator by the terms and provisions of this Agreement.
(g) The appointment of any successor Administrator shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
(h) The Administrator or the Trust, as the case may be, shall provide to
the Indenture Trustee a copy of all notices required to be delivered under this
Section 8.
9. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a), or the
resignation or removal of the Administrator pursuant to Section 8(b) or 8(c),
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 8(a) deliver to the Trust all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
8(b) or 8(c), respectively, the Administrator shall cooperate with the Trust and
the Indenture Trustee and take all reasonable steps requested to assist the
Trust and the Indenture Trustee in making an orderly transfer of the duties of
the Administrator to the successor Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
Administration Agreement
-9-
(a) if to the Trust, to:
GE Dealer Floorplan Master Note Trust
c/o The Bank of New York (Delaware), as Trustee
101 Barclay Street, Floor 8 West (ABS Unit)
New York, NY 10286
Attn: Antonio Vayas
Telephone: (212) 815-8322
Telecopy: (212) 815-2493 or 3883
(b) if to the Administrator, to:
General Electric Capital Corporation, as Administrator
1600 Summer Street, 4th Floor
Stamford, CT 06927
Attn: Manager, Securitizations
Telephone: (203) 357-4328
Telecopy: (203) 961-2953
(c) if to the Indenture Trustee, to:
Wilmington Trust Company
1100 N. Market Street
Wilmington, DE 19890
Attn: [________]
Telephone: [________]
Telecopy: [________]
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above.
11. Amendments. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Trust and the
Administrator. Promptly after the execution of any such amendment, the
Administrator shall furnish written notification of the substance of such
amendment or consent to the Holder of the Transferor Certificate and each of the
Rating Agencies.
12. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Trust and subject to the satisfaction of the Rating Agency Condition in
respect thereof. An assignment with such consent and satisfaction, if accepted
by the assignee, shall bind the assignee hereunder in the same manner as the
Administrator is bound hereunder. Notwithstanding the foregoing, this Agreement
may be assigned by the Administrator without the consent of the Trust to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator, provided, that such successor
organization executes and delivers to the Trust, an agreement in which such
corporation or other organization agrees to be bound hereunder by the terms of
said assignment in the same manner as the Administrator is bound
Administration Agreement
-10-
hereunder. Subject to the foregoing, this Agreement shall bind any successors or
assigns of the parties hereto.
13. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL
RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEW YORK (INCLUDING SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS
LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAWS PROVISIONS THEREOF) AND
ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF
MANHATTAN IN NEW YORK CITY; PROVIDED, FURTHER, THAT NOTHING IN THIS AGREEMENT
SHALL BE DEEMED OR OPERATE TO PRECLUDE THE TRUSTEE FROM BRINGING SUIT OR TAKING
OTHER LEGAL ACTION IN ANY OTHER JURISDICTION, OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF THE TRUSTEE. EACH PARTY HERETO SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED
IN ACCORDANCE WITH SECTION 10 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED
UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER
DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS
SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW.
Administration Agreement
-11-
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
14. Other Interpretive Matters. All terms defined directly or by
incorporation in this Agreement shall have the defined meanings when used in any
document delivered pursuant hereto unless otherwise defined therein. For
purposes of this Agreement, unless the context otherwise requires: (a)
accounting terms not otherwise defined herein and accounting terms partly
defined herein to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles; (b) unless
otherwise provided, references to any month, quarter or year refer to a calendar
month, quarter or year; (c) references to any amount as on deposit or
outstanding on any particular date means such amount at the close of business on
such day; (d) the words "hereof," "herein" and "hereunder" and words of similar
import refer to this Agreement as a whole and not to any particular provision of
this Agreement; (e) references to any section, schedule or exhibit are
references to sections, schedules and exhibits in or to this Agreement, and
references to any paragraph, subsection, clause or other subdivision within any
section or definition refer to such paragraph, subsection, clause or other
subdivision of such section or definition; (f) the term "including" means
"including without limitation"; (g) references to any law or regulation refer to
that law or regulation as amended from time to time and include any successor
law or regulation; (h) references to any agreement refer to that agreement as
from time to time amended, restated or supplemented or as the terms of such
agreement are waived or modified in accordance with its terms; and (i)
references to any Person include that Person's successors and assigns.
15. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
16. Counterparts. This Agreement may be executed in counterparts, all of
which when so executed shall together constitute but one and the same agreement.
17. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Administration Agreement
-12-
18. Not Applicable to General Electric Capital Corporation in Other
Capacities. Nothing in this Agreement shall affect any obligation General
Electric Capital Corporation may have in any other capacity.
19. Limitation of Liability of the Trustee. Notwithstanding anything
contained herein to the contrary, this instrument has been countersigned by The
Bank of New York (Delaware), not in its individual capacity but solely in its
capacity as Trustee of the Trust, and in no event shall The Bank of New York
(Delaware), in its individual capacity, or any beneficial owner of the Trust
have any liability for the representations, warranties, covenants, agreements or
other obligations of the Trust hereunder, as to all of which recourse shall be
had solely to the assets of the Trust. For all purposes of this Agreement, in
the performance of any duties or obligations of the Trust thereunder, the
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Article VII of the Trust Agreement.
20. Indemnification. The Administrator shall indemnify the Trust (and
its officers, directors, employees, trustees, and agents) (the "Indemnified
Parties") for, and hold them harmless against, any losses, liability or expense,
including attorneys' fees reasonably incurred by them (all of the foregoing
being collectively referred to as "Indemnified Amounts"), incurred without
negligence or willful misconduct on their part, arising out of or in connection
with: (i) actions taken by either of them pursuant to instructions given by the
Administrator pursuant to this Agreement or (ii) the failure of the
Administrator to perform its obligations hereunder. The indemnities contained in
this Section shall survive the termination of this Agreement and the resignation
or removal of the Administrator or the Trust.
In the event any proceeding (including any governmental investigation)
shall be instituted involving any Indemnified Party pursuant to the preceding
paragraph, such Person shall promptly notify the Administrator in writing, and
the Administrator shall have the option to assume the defense thereof, including
the retention of counsel reasonably satisfactory to such Indemnified Party to
represent such Indemnified Party in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding upon delivery
to the Administrator of demand therefor. In any such proceeding, any Indemnified
Party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party unless (i) the
Administrator has failed to assume the defense thereof, (ii) the Administrator
and the Indemnified Party shall have mutually agreed to the retention of such
counsel or (iii) the named parties to any such proceeding (including any
impleaded parties) include both the Administrator and the Indemnified Party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that the
Administrator shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
Indemnified Parties. The Administrator shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Administrator
agrees to indemnify the Indemnified Party from and against any loss or liability
by reason of such settlement or judgment for which the Administrator is liable
pursuant to this Section. The Administrator shall not, without the prior written
consent of the Indemnified Party, effect any settlement of any pending or
threatened proceeding in respect of which such Indemnified Party is or could
have been a party and indemnity could have been sought hereunder
Administration Agreement
-13-
by such Indemnified Party, unless such settlement includes an unconditional
release of such Indemnified Party from all liability on claims that are the
subject matter of such proceeding.
21. No Proceedings. From and after the Closing Date and until the date
one year plus one day following the date on which the Outstanding Balance of all
Transferred Receivables have been reduced to zero, the Administrator shall not,
directly or indirectly, institute or cause to be instituted against the Trust
any proceeding of the type referred to in the definition of "Insolvency Event."
[SIGNATURES FOLLOW]
Administration Agreement
-14-
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
GE DEALER FLOORPLAN MASTER NOTE TRUST
By: The Bank of New York (Delaware),
not in its individual capacity but solely as
Trustee on behalf of the Trust
By:_________________________________________
Name:_______________________________________
Title:______________________________________
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrator
By:_________________________________________
Name:_______________________________________
Title:______________________________________
THE BANK OF NEW YORK (DELAWARE), not in its
individual capacity, but solely as trustee
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Administration Agreement
S-1
Exhibit 4.18
ORIGINATOR PERFORMANCE GUARANTY
dated as of [ ], 2004
by
GENERAL ELECTRIC CAPITAL CORPORATION,
as Originator Performance Guarantor
Originator Performance Guaranty
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE I DEFINITIONS AND INTERPRETATION................................................... 1
Section 1.1 Definitions...................................................................... 1
Section 1.2 Rules of Construction............................................................ 3
ARTICLE II ORIGINATOR PERFORMANCE GUARANTY.................................................. 3
Section 2.1 Originator Performance Guaranty.................................................. 3
ARTICLE III MISCELLANEOUS.................................................................... 7
Section 3.1 Notices.......................................................................... 7
Section 3.2 Binding Effect; Assignability.................................................... 7
Section 3.3 Termination; Survival of Guaranteed Originator Obligations Upon Facility
Termination Date................................................................. 8
Section 3.4 Costs, Expenses and Taxes........................................................ 8
Section 3.5 No Waiver; Remedies.............................................................. 9
Section 3.6 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL..................... 9
Section 3.7 Counterparts..................................................................... 11
Section 3.8 Severability..................................................................... 11
Section 3.9 Section Titles................................................................... 11
|
Originator Performance Guaranty
-i-
ORIGINATOR PERFORMANCE GUARANTY, dated as of [ ], 2004 (this "Guaranty")
by GENERAL ELECTRIC CAPITAL CORPORATION ("GE Capital"), a Delaware corporation,
in its capacity as performance guarantor hereunder (in such capacity, together
with its successors and assigns, the "Originator Performance Guarantor").
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions.
"Administration Agreement" means that certain Administration Agreement
dated as of the [ ], 2004 among the Administrator, the Issuer and the Trustee.
"Administrator" means GE Capital, in its capacity as Administrator under
the Administration Agreement, or any other Person designated as a successor
Administrator thereunder.
"Bankruptcy Code" means the provisions of Title 11 of the United States
Code, 11 U.S.C. Sections 101, et seq.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which banks are required or permitted to be closed in the State of New York, the
State of Connecticut or the State of Illinois.
"Class" means any class of Notes of any Series.
"Closing Date" means [ ], 2004.
"Collateral" is defined in the Indenture.
"Event of Default" is defined in the Indenture.
"First Tier Agreement" means the Receivables Sale Agreement dated as of [
], 2004 among the Originators and the Transferor.
"GE Capital" is defined in the preamble.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any agency, department or other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guaranteed Originator Obligations" is defined in Section 2.1.
"Guaranty" is defined in the preamble.
"Indenture" means the Master Indenture dated as of [ ], 2004 between the
Trust and the Indenture Trustee.
Originator Performance Guaranty
"Indenture Supplement" means, with respect to any Series, a supplement to
the Indenture, executed and delivered in connection with the original issuance
of the Notes of such Series pursuant to the Indenture.
"Indenture Trustee" means, at any time, the Person acting as indenture
trustee under the Indenture. As of the Closing Date, the Indenture Trustee is
Wilmington Trust Company.
"Issuer" means GE Dealer Floorplan Master Note Trust, a Delaware statutory
trust.
"Litigation" means, with respect to any Person, any action, claim,
lawsuit, demand, investigation or proceeding pending or threatened against such
Person before any court, board, commission, agency or instrumentality of any
federal, state, local or foreign government or of any agency or subdivision
thereof or before any arbitrator or panel of arbitrators.
"Master Servicer" means GE Capital, in its capacity as the master servicer
under the Servicing Agreement, or any other Person designated as a successor
master servicer pursuant to the Servicing Agreement.
"Note" is defined in the Indenture.
"Originator" means each of the Persons from time to time party to the
First Tier Agreement as "Sellers". As of the Closing Date, the only Originators
are GE Commercial Distribution Finance Corporation and Transamerica Commercial
Finance Corporation.
"Originator Performance Guarantor" is defined in the preamble.
"Person" means any individual, sole proprietorship, partnership, joint
venture, unincorporated organization, trust (including a business trust),
association, corporation, limited liability company, institution, public benefit
corporation, joint stock company, Governmental Authority or any other entity of
whatever nature.
"Related Documents" means, the First Tier Agreement, the Second Tier
Agreement, the Notes, the Trust Agreement, the Administration Agreement, the
Servicing Agreement, this Guaranty, the Indenture, any Indenture Supplement and
including all other pledges, powers of attorney, consents, assignments,
contracts, notices, and all other written matter whether heretofore, now or
hereafter executed by or on behalf of any Person, or any employee of any Person,
and delivered in connection with any of the foregoing or the transactions
contemplated thereby. Any reference in this Guaranty to a Related Document shall
include all Appendices thereto, and all amendments, restatements, supplements or
other modifications thereto, and shall refer to such Related Document as the
same may be in effect at any and all times such reference becomes operative.
"Second Tier Agreement" means that certain Receivables Purchase and
Contribution Agreement dated as of [ ], 2004, between the Transferor and the
Trust.
"Series" is defined in the Indenture.
"Series Maturity Date" is defined in the Indenture.
Originator Performance Guaranty
2
"Servicing Agreement" means that certain Servicing Agreement dated as of [
], 2004, between the Master Servicer and the Trust.
"Transferor" means CDF Funding, Inc.
"Transferred Receivable" is defined in the Indenture.
"Trust" means the Issuer.
"Trust Agreement" means that certain Amended and Restated Trust Agreement
dated as [ ], 2004 between the Transferor and the Trustee.
"Trustee" means The Bank of New York (Delaware), not in its individual
capacity but solely as trustee pursuant to the Trust Agreement.
"UCC" means, unless the context otherwise requires, the Uniform Commercial
Code as in effect in the relevant jurisdiction.
Section 1.2 Rules of Construction. All terms defined directly or by
incorporation in this Guaranty shall have the defined meanings when used in any
certificate or other document delivered pursuant hereto unless otherwise defined
therein. For purposes of this Guaranty and all such certificates and other
documents, unless the context otherwise requires: (a) accounting terms not
otherwise defined herein, and accounting terms partly herein to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles; (b) references to any month, quarter or year
refer to a calendar month, quarter or year; (c) terms defined in Article 9 of
the UCC and not otherwise defined in herein are used as defined in that Article;
(d) references to any amount as on deposit or outstanding on any particular date
means such amount at the close of business on such day; (e) the words "hereof,"
"herein" and "hereunder" and words of similar import refer to this Guaranty (or
the certificate or other document in which they are used) as a whole and not to
any particular provision of this Guaranty (or such certificate or document); (f)
references to any Section, Schedule or Exhibit are references to Sections,
Schedules and Exhibits in or to this Guaranty (or the certificate or other
document in which the reference is made), and references to any paragraph,
subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or
definition; (g) the term "including" means "including without limitation"; (h)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (i) references to
any agreement refer to that agreement as from time to time amended or
supplemented or as the terms of such agreement are waived or modified in
accordance with its terms; (j) references to any Person include that Person's
successors and assigns; and (k) headings are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
ARTICLE II
ORIGINATOR PERFORMANCE GUARANTY
Section 2.1 Originator Performance Guaranty.
Originator Performance Guaranty
3
(a) Unconditional Undertaking; Enforcement. The Originator
Performance Guarantor hereby unconditionally and irrevocably undertakes
and agrees with and for the benefit of the Issuer to cause the due
performance and observance by each Originator of all of the terms,
covenants, conditions, agreements and undertakings on the part of such
Originator, to be performed or observed under the First Tier Agreement or
any document delivered in connection with the First Tier Agreement in
accordance with the terms hereof and thereof including any agreement of
such Originator to pay any money under the First Tier Agreement or any
such other document (all such terms, covenants, conditions, agreements and
undertakings on the part of any Originator to be performed or observed by
such Originator being collectively called the "Guaranteed Originator
Obligations"). In the event that any Originator shall fail in any manner
whatsoever to perform or observe any of the Guaranteed Originator
Obligations when the same shall be required to be performed or observed
under the First Tier Agreement or any such other document (after giving
effect to any cure period), then the Originator Performance Guarantor will
itself duly perform or observe, or cause to be duly performed or observed,
such Guaranteed Originator Obligation, and it shall not be a condition to
the accrual of the obligation of the Originator Performance Guarantor
hereunder to perform or observe any Guaranteed Originator Obligation (or
to cause the same to be performed or observed) that the Issuer shall have
first made any request of or demand upon or given any notice to the
Originator Performance Guarantor or to any Originator, or have instituted
any action or proceeding against the Originator Performance Guarantor or
any Originator in respect thereof. Notwithstanding anything to the
contrary contained in this Guaranty, the obligations of the Originator
Performance Guarantor hereunder in respect of the Originators are
expressly limited to the Guaranteed Originator Obligations. The
obligations of the Originator Performance Guarantor hereunder shall rank
pari passu with senior unsecured debt of the Originator Performance
Guarantor.
(b) Enforcement. The Issuer, including the Indenture Trustee, may
proceed to enforce the obligations of the Originator Performance Guarantor
under this Guaranty without first pursuing or exhausting any right or
remedy which the Issuer or the Indenture Trustee may have against any
Originator, any other Person or any collateral.
(c) Obligations Absolute. To the extent permitted by law, the
Originator Performance Guarantor will perform its obligations under this
Guaranty regardless of any law now or hereafter in effect in any
jurisdiction affecting any of the terms of this Guaranty or any document
delivered in connection with this Guaranty or the rights of the Issuer
with respect thereto. The obligations of the Originator Performance
Guarantor under this Guaranty shall be absolute and unconditional
irrespective of:
(i) any lack of validity or enforceability or the discharge or
disaffirmance (by any Person, including a trustee in bankruptcy) of
the Guaranteed Originator Obligations, any Related Document or any
Transferred Receivable or any document or any other agreement or
instrument relating thereto;
Originator Performance Guaranty
4
(ii) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed
Originator Obligations;
(iii) the existence of any claim, setoff or other rights that
the Originator Performance Guarantor may have at any time against
any Originator in connection herewith or any unrelated transaction;
(iv) any failure to obtain any authorization or approval from
or other action by, or to notify or file with, any Governmental
Authority or regulatory body required in connection with the
performance of such obligations by any Originator; or
(v) any impossibility or impracticality of performance,
illegality, force majeure, any act of any Governmental Authority or
any other circumstance which might constitute a legal or equitable
defense available to, or a discharge of, any Originator or the
Originator Performance Guarantor, or any other circumstance, event
or happening whatsoever, whether foreseen or unforeseen and whether
similar or dissimilar to anything referred to above in this
Guaranty.
The Originator Performance Guarantor further agrees that its obligations under
this Guaranty shall not be limited by any valuation or estimation made in
connection with any proceedings involving any Originator or the Originator
Performance Guarantor filed under the Bankruptcy Code, whether pursuant to
Section 502 of the Bankruptcy Code or any other Section thereof. The Originator
Performance Guarantor further agrees that the Issuer shall not be under any
obligation to marshall any assets in favor of or against or in payment of any or
all of the Guaranteed Originator Obligations. The Originator Performance
Guarantor further agrees that, to the extent that a payment or payments are made
by or on behalf of any Originator, which payment or payments or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside and/or required to be repaid to such Originator, or the estate, trustee,
receiver or any other party relating to such Originator, including the
Originator Performance Guarantor, under any bankruptcy law, state or federal
law, common law or equitable cause then to the extent of such payment or
repayment, the Guaranteed Originator Obligations or part thereof which had been
paid, reduced or satisfied by such amount shall be reinstated and continued in
full force and effect as of the date such initial payments, reduction or
satisfaction occurred. The obligations of the Originator Performance Guarantor
under this Guaranty shall not be discharged except by performance as provided
herein.
(d) Irrevocability. The Originator Performance Guarantor agrees that
its obligations under this Guaranty shall be irrevocable. In the event
that under applicable law (notwithstanding the Originator Performance
Guarantor's agreement regarding the irrevocable nature of its obligations
hereunder) the Originator Performance Guarantor shall have the right to
revoke this Guaranty, this Guaranty shall continue in full force and
effect until a written revocation hereof specifically referring hereto,
signed by the Originator Performance Guarantor, is actually received by
the Issuer at the address determined in accordance with Section 3.1. Any
such revocation shall not affect the right of the Issuer to enforce its
rights under this Guaranty with respect of (i) any Guaranteed
Originator Performance Guaranty
5
Originator Obligation (including any Guaranteed Originator Obligation that
is contingent or unmatured) which arose on or prior to the date the
aforementioned revocation was received by the Issuer or (ii) any
Transferred Receivable which was purchased or otherwise acquired by the
Issuer on or prior to the date the aforementioned revocation was received
by the Issuer. For purposes of the preceding sentence, all Guaranteed
Originator Obligations that relate to, or arise in connection with, any
Transferred Receivable that existed on or prior to the date the
aforementioned revocation is received by the Issuer, shall be covered by
this Guaranty notwithstanding such revocation. If the Issuer acquires an
ownership interest in the Transferred Receivables or takes other action in
reliance on this Guaranty after any such revocation by the Originator
Performance Guarantor but prior to the receipt by the Issuer of said
written revocation, the rights of the Issuer with respect thereto shall be
the same as if such revocation had not occurred. Without limiting the
foregoing, this Guaranty may not be revoked at any time until the date,
following the Series Maturity Date of each Series, on which the
outstanding balance of the Transferred Receivables has been reduced to
zero.
(e) Waiver. The Originator Performance Guarantor hereby waives
promptness, diligence, notice of acceptance and any other notice with
respect to any of the Guaranteed Originator Obligations and any Related
Document and any requirement that the Issuer exhaust any right or take any
action against any Originator, any other Person or any collateral.
(f) Subrogation. The Originator Performance Guarantor will not
exercise or assert any rights which it may acquire by way of subrogation
under this Guaranty unless and until all of the Guaranteed Originator
Obligations shall have been paid and performed in full. If any payment
shall be made to the Originator Performance Guarantor on account of any
subrogation rights at any time when all of the Guaranteed Originator
Obligations shall not have been paid and performed in full, each and every
amount so paid will be held in trust for the benefit of the Issuer and
forthwith be paid to the Issuer, to be credited and applied to the
Guaranteed Originator Obligations to the extent then unsatisfied, in
accordance with the terms of the Second Tier Agreement or any document
delivered in connection with the Second Tier Agreement, as the case may
be. In the event (i) the Originator Performance Guarantor shall have
satisfied any of the Guaranteed Originator Obligations and (ii) all of the
Guaranteed Originator Obligations shall have been paid and performed in
full, the Issuer will at the Originator Performance Guarantor's request
and expense, execute and deliver to the Originator Performance Guarantor
appropriate documents, without recourse and without representation or
warranty of any kind, necessary to evidence or confirm the transfer by way
of subrogation to the Originator Performance Guarantor of the rights of
the Issuer with respect to the Guaranteed Originator Obligations to which
the Originator Performance Guarantor shall have become entitled by way of
subrogation and thereafter the Issuer shall have no responsibility to the
Originator Performance Guarantor or any other Person with respect thereof.
Originator Performance Guaranty
6
ARTICLE III
MISCELLANEOUS
Section 3.1 Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any Person, or
whenever any Person desires to give or serve upon any other Person any
communication with respect to this Guaranty, each such notice, demand, request,
consent, approval, declaration or other communication shall be in writing and
shall be deemed to have been validly served, given or delivered (a) upon the
earlier of actual receipt and three (3) Business Days after deposit in the
United States mail, registered or certified mail, return receipt requested, with
proper postage prepaid, (b) upon transmission, when sent by telecopy or other
similar facsimile transmission (with such telecopy or facsimile promptly
confirmed by delivery of a copy by personal delivery or United States mail as
otherwise provided in this Section 3.1), (c) one (1) Business Day after deposit
with a reputable overnight courier with all charges prepaid or (d) when
delivered, if hand-delivered by messenger, all of which shall be addressed to
the Person to be notified and sent to the address or facsimile number indicated
below or to such other address (or facsimile number) as may be substituted by
notice given as herein provided. The giving of any notice required hereunder may
be waived in writing by the Person entitled to receive such notice. Whenever it
is provided herein that a notice is to be given to any Person by a specific
time, such notice shall only be effective if actually received by such Person
prior to such time, and if such notice is received after such time or on a day
other than a Business Day, such notice shall only be effective on the
immediately succeeding Business Day.
If to the Originator Performance Guarantor:
General Electric Capital Corporation,
as Originator Performance Guarantor
1600 Summer Street, 4th Floor
Stamford, Connecticut 06927
Attention: Manager, Securitization
Telephone: (203) 357-4328
Facsimile: (203) 961-2953
If to the Issuer:
GE Dealer Floorplan Master Note Trust
c/o General Electric Capital Corporation
1600 Summer Street, 4th Floor
Stamford, Connecticut 06927
Attention: Manager, Securitization
Telephone: (203) 357-4328
Facsimile: (203) 961-2953
Section 3.2 Binding Effect; Assignability. This Guaranty shall be binding
upon and inure to the benefit of the Issuer and its successors and permitted
assigns. The Originator
Originator Performance Guaranty
7
Performance Guarantor may not assign, transfer, hypothecate or otherwise convey
any of its rights or obligations hereunder or interests herein without the
express prior written consent of the Issuer. Any such purported assignment,
transfer, hypothecation or other conveyance by the Originator Performance
Guarantor without the prior express written consent of the Issuer shall be void.
The Issuer may, at any time, assign any of its rights and obligations hereunder
or interests herein to any Person and any such assignee may further assign at
any time its rights and obligations hereunder or interests herein (including any
rights it may have to exercise remedies hereunder), in each case without the
consent of the Originator Performance Guarantor.
Section 3.3 Termination; Survival of Guaranteed Originator Obligations
Upon Facility Termination Date. This Guaranty shall create and constitute the
continuing obligation of the Originator Performance Guarantor in accordance with
its terms, and shall remain in full force and effect until the date, following
the Series Maturity Date of each Series, on which the outstanding balance of the
Transferred Receivables has been reduced to zero.
Section 3.4 Costs, Expenses and Taxes.
(a) The Originator Performance Guarantor shall reimburse the Issuer
for all out-of-pocket expenses incurred in connection with the negotiation
and preparation of this Guaranty (including the reasonable fees and
expenses of all of its special counsel, advisors, consultants and auditors
retained in connection with the transactions contemplated thereby and
advice in connection therewith). The Originator Performance Guarantor is
also liable for all of its own out-of-pocket expenses incurred in
connection with the negotiation, preparation and the carrying out of its
obligations under this Guaranty (including the reasonable fees and
expenses of all of its special counsel, advisors, consultants and auditors
retained in connection with the transactions contemplated thereby and
advice in connection therewith). The Originator Performance Guarantor
shall reimburse the Issuer for all fees, costs and expenses, including the
fees, costs and expenses of counsel or other advisors for advice,
assistance, or other representation in connection with:
(i) any amendment, modification or waiver of, consent with
respect to, or termination of this Guaranty or advice in connection
with the administration thereof or its rights hereunder or
thereunder; and
(ii) any Litigation, contest or dispute (whether instituted by
the Originator Performance Guarantor, the Issuer or any other Person
as a party, witness, or otherwise) in any way relating to this
Guaranty or any other agreement to be executed or delivered in
connection herewith, including any Litigation, contest, dispute,
suit, case or proceeding and any appeal or review thereof, in
connection with a case commenced by or against the Originator
Performance Guarantor or any other Person that may be obligated to
the Issuer by virtue of this Guaranty, including any such
Litigation, contest, dispute, suit or proceeding arising in
connection with any work-out or restructuring of the transactions
contemplated hereby during the pendency of one or more Events of
Default;
Originator Performance Guaranty
8
including all attorneys' and other professional and service providers' fees
arising from such services, including those in connection with any appellate
proceedings, and all expenses, costs, charges and other fees incurred by such
counsel and others in connection with or relating to any of the events or
actions described in this Section 3.4, all of which shall be payable, on demand,
by the Originator Performance Guarantor to the Issuer. Without limiting the
generality of the foregoing, such expenses, costs, charges and fees may include:
fees, costs and expenses of accountants and paralegals; court costs and
expenses; photocopying and duplication expenses; court reporter fees, costs and
expenses; long distance telephone charges; air express charges; telegram or
telecopy charges; secretarial overtime charges; and expenses for travel, lodging
and food paid or incurred in connection with the performance of such legal or
other advisory services.
(b) In addition, the Originator Performance Guarantor shall pay on
demand any and all stamp, sales, excise and other taxes (excluding income
taxes) and fees payable or determined to be payable in connection with the
execution, delivery, filing or recording of this Guaranty, and the
Originator Performance Guarantor agrees to indemnify and save the Issuer
harmless from and against any and all liabilities with respect to or
resulting from any delay or failure to pay such taxes and fees.
Section 3.5 No Waiver; Remedies. The failure by the Issuer, at any time or
times, to require strict performance by the Originator Performance Guarantor of
any provision of this Guaranty shall not waive, affect or diminish any right of
the Issuer thereafter to demand strict compliance and performance herewith or
therewith. Any suspension or waiver of any breach or default hereunder shall not
suspend, waive or affect any other breach or default whether the same is prior
or subsequent thereto and whether the same or of a different type. None of the
undertakings, agreements, warranties, covenants and representations of the
Originator Performance Guarantor contained in this Guaranty, and no breach or
default by the Originator Performance Guarantor hereunder, shall be deemed to
have been suspended or waived by the Issuer unless such waiver or suspension is
by an instrument in writing signed by the Issuer and directed to the Originator
Performance Guarantor, as applicable, specifying such suspension or waiver. The
rights and remedies of the Issuer under this Guaranty shall be cumulative and
nonexclusive of any other rights and remedies that the Issuer may have under any
other agreement, including the other Related Documents, by operation of law or
otherwise. Recourse to the Collateral shall not be required.
Section 3.6 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL.
(a) THIS GUARANTY AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL
RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK BUT WITHOUT REGARD TO ANY
OTHER CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.
Originator Performance Guaranty
9
(b) THE ORIGINATOR PERFORMANCE GUARANTOR HEREBY CONSENTS AND AGREES
THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN
NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY
CLAIMS OR DISPUTES PERTAINING TO THIS GUARANTY OR TO ANY MATTER ARISING
OUT OF OR RELATING TO THIS GUARANTY; PROVIDED, THAT ANY APPEALS FROM THOSE
COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF
MANHATTAN IN NEW YORK CITY; PROVIDED, FURTHER, THAT NOTHING IN THIS
GUARANTY SHALL BE DEEMED OR OPERATE TO PRECLUDE THE ISSUER FROM BRINGING
SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE ISSUER. THE ORIGINATOR
PERFORMANCE GUARANTOR SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION
IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND THE ORIGINATOR
PERFORMANCE GUARANTOR HEREBY WAIVES ANY OBJECTION THAT IT MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS
AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS
IS DEEMED APPROPRIATE BY SUCH COURT. THE ORIGINATOR PERFORMANCE GUARANTOR
HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS
ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS,
COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH
SECTION 3.1 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE
EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT
IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION
SHALL AFFECT THE RIGHT OF ANY PERSON TO SERVE LEGAL PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED
AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS
TO APPLY (RATHER THAN ARBITRATION RULES), THE ORIGINATOR PERFORMANCE
GUARANTOR DESIRES THAT DISPUTES ARISING WITH RESPECT TO THIS GUARANTY BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE
THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE ORIGINATOR PERFORMANCE GUARANTOR WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF,
Originator Performance Guaranty
10
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 3.7 Counterparts. This Guaranty may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement.
Section 3.8 Severability. Wherever possible, each provision of this
Guaranty shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Guaranty shall be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Guaranty.
Section 3.9 Section Titles. The section titles and table of contents
contained in this Guaranty are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of this Guaranty.
[SIGNATURES FOLLOW]
Originator Performance Guaranty
11
IN WITNESS WHEREOF, the Originator Performance Guarantor has caused this
Originator Performance Guaranty to be executed as of the date first above
written.
GENERAL ELECTRIC CAPITAL
CORPORATION,
as Originator Performance Guarantor
By:____________________________________
Name:__________________________________
Title:_________________________________
Originator Performance Guaranty
S-1
Accepted as of the date first above written:
GE DEALER FLOORPLAN MASTER NOTE TRUST,
as Issuer
By: The Bank of New York (Delaware), not in its
individual capacity but solely on behalf of the Issuer
By:______________________________________
Name:____________________________________
Title:___________________________________
Originator Performance Guaranty
S-2
Exhibit 4.19
CUSTODY AND CONTROL AGREEMENT
CUSTODY AND CONTROL AGREEMENT (this "Agreement") dated as of [ ], 2004 by
and among [ ] (the "Custodian"), in its capacity as Custodian, GE DEALER
FLOORPLAN MASTER NOTE TRUST, a Delaware statutory trust (the "Issuer"), and
WILMINGTON TRUST COMPANY (the "Indenture Trustee"), in its capacity as Indenture
Trustee.
WHEREAS, the Issuer is the owner of the Accounts;
WHEREAS, the Issuer has entered into a master indenture (as amended,
restated or modified, the "Indenture"), dated the same date as this Agreement,
with the Indenture Trustee, whereby the Issuer has granted a security interest
to the Indenture Trustee in among other things, the Property in the Accounts;
WHEREAS, the Issuer is entering into this Agreement to perfect the
security interest of the Indenture Trustee in the Accounts and in the Issuer's
Security Entitlements in respect of the Property in the Accounts from time to
time;
WHEREAS, the Issuer desires to appoint the Custodian as custodian on
behalf of the Issuer, and the Custodian has agreed to so act as custodian, under
the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
1. Certain Definitions. As used herein the following terms shall have
the following meanings:
"Accounts" means the Trust Accounts.
"Agreement" means this Custody and Control Agreement.
"Collections" means has the meaning set forth in Section 2(a).
"Certificated Security" has the meaning specified in Section 8-102(a)(4)
of the UCC.
"Class" means any class of Notes of any Series.
"Clearing Corporation" has the meaning specified in Section 8-102(a)(5) of
the UCC.
"Clearstream" means Clearstream, societe anonyme, a corporation organized
under the laws of the Grand Duchy of Luxembourg.
"Clearstream Security" means a "security" (as defined in Section
8-102(a)(15) of the UCC) that (i) is a debt or equity security and (ii) is
capable of being transferred to the account of a custodian at Clearstream
pursuant to Section 2, whether or not such transfer has occurred.
-1- Custody and Control Agreement
"Closing Date" means [ ], 2004.
"Collection Account" is defined in the Indenture.
"Custodian" has the meaning specified in the preamble hereto.
"Default" is defined in the Indenture.
"Deposit Account" has the meaning specified in Section 9-102(a)(29) of the
UCC.
"Entitlement Holder" means a person identified in the records of the
Custodian as the person having a Security Entitlement against the Custodian.
"Entitlement Order" means a notification communicated to the Custodian
directing transfer or redemption of a Financial Asset to which the Entitlement
Holder has a Security Entitlement, which prior to the receipt by the Custodian
of a Notice of Exclusive Control (as defined in Section 4) from the Indenture
Trustee shall be any Instruction with respect to the Accounts or the Property
held pursuant to this Agreement, and in any event shall include an "entitlement
order" as defined in Article 8 of the UCC.
"Euroclear" means Euroclear Bank S.A./N.V. Brussels office, as operator of
the Euroclear system.
"Euroclear Security" means a "security" (as defined in Section
8-102(a)(15) of the UCC) that (i) is a debt or equity security and (ii) is
capable of being transferred to the Custodian's account at Euroclear pursuant to
Section 2, whether or not such transfer has occurred.
"Event of Default" is defined in the Indenture.
"Excess Funding Account" is defined in the Indenture.
"Financial Asset" has the meaning specified in Section 8-102(a)(9) of the
UCC.
"FRB" means a Federal Reserve Bank of the United States.
"Government Security" means a security issued or guaranteed by the United
States of America or an agency or instrumentality thereof representing a full
faith and credit obligation of the United States of America and, with respect to
each of the foregoing, that is maintained in book-entry form on the records of
an FRB.
"Indenture" means the Master Indenture dated as of [ ], 2004 between the
Issuer and the Indenture Trustee.
"Indenture Supplement" is defined in the Indenture.
"Indenture Trustee" means Wilmington Trust Company, not in its individual
capacity but solely as Indenture Trustee under the Indenture, or any successor
Indenture Trustee under the Indenture.
-2- Custody and Control Agreement
"Instructions" has the meaning specified in Section 11.
"Instruments" has the meaning specified in Section 9-102(a)(47) of the
UCC.
"Issuer" has the meaning specified in the preamble.
"Master Servicer" means General Electric Capital Corporation, in its
capacity as the master servicer under the Servicing Agreement, or any other
Person designated as a successor master servicer pursuant to the Servicing
Agreement.
"Note Register" is defined in the Indenture.
"Noteholder" means the Person in whose name a Note is registered on the
Note Register or such other Person deemed to be a "Noteholder" in any related
Indenture Supplement.
"Notes" means the notes issued from time to time pursuant to the
Indenture.
"Notice of Exclusive Control" has the meaning set forth in Section 4(a).
"Permitted Investments" is defined in the Indenture.
"Person" means any individual, sole proprietorship, partnership, joint
venture, unincorporated organization, association, corporation, trust (including
a business trust), limited liability company, institution, public benefit
corporation, joint stock company, governmental authority or any other entity of
whatever nature.
"Property" is defined in Section 2(a).
"Rating Agency" is defined in the Indenture.
"Remittance Date" is defined in Section 15.
"Securities" has the meaning set forth in Section 2(a).
"Securities Account" has the meaning specified in Section 8-501(a) of the
UCC.
"Securities Intermediary" has the meaning specified in Section
8-102(a)(14) of the UCC.
"Securities System" has the meaning set forth in Section 6.
"Security Entitlement" has the meaning specified in Section 8-102(a)(17)
of the UCC.
"Series" means any series of Notes, which may include within any such
Series a Class or Classes of Notes subordinate to another such Class or Classes
of Notes.
"Series Account" means any deposit, trust, escrow or similar account
maintained for the benefit of the Noteholders of any Series or Class, as
specified in any Indenture Supplement.
-3- Custody and Control Agreement
"Servicing Agreement" means the Servicing Agreement dated as of [ ], 2004,
between the Master Servicer and the Issuer.
"Trust Accounts" means any Series Account, the Collection Account or
Excess Funding Account.
"Trust Agreement" means the Amended and Restated Trust Agreement dated as
of [ ], 2004, between CDF Funding, Inc. and the Trustee.
"Trustee" means The Bank of New York (Delaware), not in its individual
capacity but solely in its capacity as trustee under the Trust Agreement.
"UCC" means the Uniform Commercial Code as in effect from time to time in
the State of New York.
"Uncertificated Security" has the meaning specified in Section
8-102(a)(18) of the UCC.
2. Appointment of Custodian; Acknowledgement of Receipt of Property.
(a) The Issuer hereby appoints the Custodian as custodian of the
Permitted Investments and any other investments, promissory notes, bonds,
securities agreements or other documents evidencing the Permitted Investments
(collectively, the "Securities"), any Security Entitlement with respect to the
Securities, all Permitted Investments and all cash and other property received
by the Custodian with respect to any of the foregoing (collectively,
"Collections") pursuant to the terms and conditions set forth in this Agreement,
and the Custodian hereby accepts such appointment. All of the foregoing property
as to which the Custodian is appointed custodian pursuant to this Agreement is
herein collectively called (the "Property").
(b) The Custodian hereby acknowledges that in order to facilitate the
perfection of the security interest granted by the Issuer to the Indenture
Trustee under the Indenture, the Custodian shall hold all Property as specified
in Section 2(c) and elsewhere herein and shall credit such Property as Financial
Assets to the relevant Accounts.
(c) The Issuer shall cause all Property acquired by or on behalf of the
Issuer to be transferred to the Custodian for credit to the applicable Account,
and the Custodian shall credit such Property to the applicable Account, for the
benefit of the Issuer as owner and the benefit of the Indenture Trustee as
secured party or shall take or cause to be taken any and all other actions
necessary to create in favor of the Indenture Trustee a valid and perfected,
first-priority security interest granted to the Indenture Trustee under the
Indenture in the Accounts and all Property credited to the Accounts, as follows:
(i) in the case of each Certificated Security or Instrument (other
than a Government Security, Euroclear Security or Clearstream Security), by (A)
causing the delivery of such Certificated Security or Instrument to the
Custodian in bearer form or registered in the name of the Custodian or its
nominee or indorsed to the Custodian or its nominee or in blank by an effective
indorsement, (B) causing the Custodian to continuously identify on its books and
records that such Certificated Security or Instrument is credited to the
applicable Account and
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(C) causing the Custodian to maintain continuous possession of such Certificated
Security or Instrument;
(ii) in the case of each Uncertificated Security (other than a
Government Security, Euroclear Security or Clearstream Security), by (A) causing
such Uncertificated Security to be continuously registered on the books of the
issuer thereof to the Custodian and (B) causing the Custodian to continuously
identify on its books and records that such Uncertificated Security is credited
to the applicable Account;
(iii) in the case of each Euroclear Security and Clearstream
Security, by (A) causing Euroclear or Clearstream, as the case may be, to credit
such security to the Custodian's Securities Account (or to the Securities
Account of a Securities Intermediary acting in such capacity on behalf of the
Custodian and which has credited such security to a Securities Account of the
Custodian with such Securities Intermediary) at Euroclear or Clearstream, as the
case may be, (B) causing the Custodian to continuously identify on its books and
records that such Euroclear Security or Clearstream Security is credited to
applicable Account as a Financial Asset, and (C) causing such Euroclear Security
or Clearstream Security to be (1) continuously registered to Euroclear or
Clearstream, as the case may be, and (2) continuously identified on the books
and records of Euroclear or Clearstream, as the case may be, as credited to the
Securities Account of the Custodian (or to the Securities Account of a
Securities Intermediary acting in such capacity on behalf of the Custodian and
which has credited such security to a Securities Account of the Custodian with
such Securities Intermediary);
(iv) in the case of each Government Security, by (A) causing the
crediting of such Government Security to a Securities Account of the Custodian
at an FRB, (B) causing the Custodian to continuously identify on its books and
records that such Government Security is credited to the applicable Account as a
Financial Asset, and (C) causing the continuous crediting of such Government
Security to a Securities Account of the Custodian at such FRB; and
(v) in the case of each Financial Asset not covered by the
foregoing clauses (i) through (iv), by causing the transfer of such Financial
Asset to the Custodian in accordance with applicable law and regulation and
causing the Custodian to credit such Financial Asset to the applicable Account.
(d) With respect to any Deposit Account as to which the Indenture
Trustee is not the bank at which such Deposit Account is maintained, by causing
such bank, the Issuer and the Indenture Trustee to enter into an agreement
containing provisions substantially similar to the provisions of this Agreement
relating to the Accounts.
(e) With respect to any other Property that for any reason does not
create a Security Entitlement at any time now or hereafter and which is held in
or credited to the applicable Account, the Custodian hereby acknowledges that,
for purposes of perfecting the security interest of the Indenture Trustee, it
holds and will hold possession of such property as bailee for the Indenture
Trustee in its capacity as secured party.
3. The Accounts.
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(a) The Issuer agrees to establish and maintain the Accounts at the
Custodian according to Section 8.2 of the Indenture and the applicable Indenture
Supplement. The Custodian further agrees that (i) each Trust Account is and
shall at all times be maintained by the Custodian as a Securities Account in the
Custodian's trust department, (ii) the Custodian is acting and will act as a
Securities Intermediary with respect to such Trust Account, and (iii) all of the
Property accredited to such Trust Account shall be treated as Financial Assets.
(b) The Issuer acknowledges its responsibility as a principal for all of
its obligations to the Custodian arising under or in connection with this
Agreement, warrants its authority to deposit in the Accounts any Property
received therefor by the Custodian and to give Instructions relative thereto.
The Issuer further agrees that the Custodian shall not be subject to, nor shall
its rights and obligations under this Agreement or with respect to the Accounts
be affected by, any agreement between the Issuer and any other Person, except as
otherwise provided in this Agreement or unless otherwise agreed by Issuer and
Custodian. If any Securities are held in a Securities System the Custodian may
deliver securities of the same class, issuer and amount in place of those
deposited in the applicable Account.
(c) The Custodian shall hold and keep safe as custodian for the
Accounts, on behalf of the Issuer, all Property in each Account. The crediting
of Property to the Accounts shall result in Security Entitlements to such
Property in favor of the Issuer, subject to the security interest of the
Indenture Trustee as a secured party.
(d) All transactions involving the Property shall be executed or settled
solely in accordance with Instructions, except that until the Custodian receives
Instructions to the contrary, the Custodian will:
(i) collect all interest and dividends and all other income and
payments, whether paid in cash or in kind, on the Property, as the same become
payable and credit the same to the applicable Account;
(ii) present for payment all Securities held in an Account which
are called, redeemed or retired or otherwise become payable and all coupons and
other income items which call for payment upon presentation to the extent that
the Custodian is actually aware based on notices received of such opportunities
and hold the cash received in such Account pursuant to this Agreement;
(iii) (x) exchange Securities where the exchange is purely
ministerial (including, without limitation, the exchange of temporary securities
for those in definitive form and the exchange of warrants, or other documents of
entitlement to securities, for the Securities themselves) and (y) when
notification of a tender or exchange offer (other than ministerial exchanges
described in (x) above) is received for such Account, use reasonable efforts to
receive Instructions, provided, that if such Instructions are not received in
time for the Custodian to take timely action, no action shall be taken with
respect thereto;
(iv) execute on behalf of the Issuer for each Account, whenever the
Custodian deems it appropriate, such ownership and other certificates as may be
required to obtain the payment of income from the Property in the applicable
Account; and
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(v) appoint brokers and agents for any of the ministerial
transactions involving the Securities described in the foregoing clauses (i)
through (iv), including, without limitation, affiliates of the Custodian.
(e) The Custodian hereby acknowledges the security interest granted to
the Indenture Trustee by the Issuer. The Custodian shall maintain all Property
free of any lien, charge or claim of any kind in favor of the Custodian or any
person claiming through the Custodian, and it will not assert any lien,
encumbrance, claim or right of set-off against the Property, the Accounts or any
Financial Assets carried in the Accounts or any credit balance in the Accounts,
except as otherwise expressly permitted by this Agreement or the Indenture. The
Custodian will not enter into any agreement other than this Agreement with any
Person requiring the Custodian's compliance with "entitlement orders" (as such
term is defined in Article 8 of the UCC) concerning the Accounts originated by
such Person without the prior written consent of the Issuer and the Indenture
Trustee except as otherwise provided herein. The Custodian represents that no
such agreement relating to the Property with any Person is now in effect.
4. Control.
(a) In order to perfect the security interest of the Indenture Trustee
in accordance with Sections 8-106 and 9-104 of the UCC, the Issuer expressly
authorizes the Custodian to comply with Entitlement Orders issued by the
Indenture Trustee or its authorized representatives with respect to any
Securities Account without the further consent of the Issuer or any other
Person, and to act upon the directions of the Indenture Trustee or its
authorized representatives with respect to any Deposit Account or the
disposition of any Property therein, in each case without the further consent of
the Issuer or any other Person. Until such time as the Indenture Trustee
delivers a written notice to the Custodian, substantially in the form of Exhibit
A hereto, that the Indenture Trustee is thereby exercising exclusive control
over such Account (a "Notice of Exclusive Control"), the Custodian shall make
trades of Financial Assets held in the Accounts, or otherwise withdraw Property
from the Accounts, at the direction of the Issuer or its authorized
representatives, and comply with Entitlement Orders concerning the Accounts from
the Issuer or its authorized representatives. The Indenture Trustee agrees with
the Issuer that it will not deliver a Notice of Exclusive Control, or issue any
directions with respect to any Account or the disposition of any Property
therein, until a Default or Event of Default has occurred (including without
limitation any Default or Event of Default resulting from the Issuer's
withdrawal of Property from an Account in violation of the terms of this
Agreement or the Indenture). After the Custodian receives the Notice of
Exclusive Control, the Custodian will promptly cease complying with Entitlement
Orders or other directions concerning such Account (including any provision
hereof regarding payments to the Issuer) originated by the Issuer or its
representatives notwithstanding any contrary provision in this Agreement.
(b) Upon issuance by the Indenture Trustee of a Notice of Exclusive
Control described in this Section 4, the Indenture Trustee shall have exclusive
control over the Accounts and without limitation the Indenture Trustee may (i)
cause the name of the Accounts to be changed to reflect that the Indenture
Trustee is the "entitlement holder" (as such term is defined in Article 8 of the
UCC) of the Accounts as trustee on behalf of the Noteholders under the
Indenture, or (ii) instruct that all Property be transferred to new accounts
with the Custodian as to
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which the Indenture Trustee is the "entitlement holder" (as such term is defined
in Article 8 of the UCC) of the Accounts as trustee on behalf of the Noteholders
under the Indenture.
5. Use of Subcustodian. Custodian shall not maintain any Property in a
custody account that has been established through another bank or trust company
acting as subcustodian unless it is authorized to do so in writing by the Issuer
and the Indenture Trustee.
6. Securities Systems. The Issuer authorizes and instructs the
Custodian to maintain all Property directly in one of its branches or indirectly
through custody accounts which have been established by the Custodian with the
following other securities intermediaries a securities depository or clearing
agency or system in which the Custodian participates (individually, a
"Securities System").
7. Use of Securities System. With respect to Property in an Account
which is maintained by the Custodian through a Securities System in which it
participates pursuant to Section 6:
(a) The Custodian shall identify on its books such Property as being
maintained for the account of the Custodian for its customers.
(b) The Custodian's agreement with such Security System shall provide
that Property deposited with a Securities System will be maintained
in an account holding only assets for customers of the Custodian
unless precluded by applicable law, rule or regulation.
(c) The Custodian shall provide to the Issuer, with a copy to the Master
Servicer, any non-confidential report obtained by the Custodian on
the Securities System's accounting system, internal accounting
control and procedures for safeguarding securities deposited in the
Securities System.
It is understood and agreed that the Custodian's agreement with a Securities
System will be subject to the generally applicable rules and regulations of such
Securities System, and that the Custodian shall not be liable for a breach of
such agreement by such Securities System.
8. Records, Ownership of Property, Statements and Opinions of
Independent Certified Public Accountants.
(a) The Property, whether maintained directly by the Custodian or
indirectly through a Securities System as authorized in this Agreement, shall be
clearly recorded on the Custodian's books as (i) being owned by the Issuer and
not the Custodian and (ii) subject to a security interest in favor of the
Indenture Trustee. The Custodian shall keep accurate and detailed accounts of
all investments, receipts, disbursements and other transactions for the
Accounts. All accounts, books and records of the Custodian relating thereto
shall be open to inspection and audit at all reasonable times during normal
business hours upon reasonable prior written notice to the Custodian by any
Person designated by the Issuer. The Issuer shall reimburse the Custodian for
its reasonable out-of-pocket expenses in connection with such inspection or
audit in accordance with Section 15. All such accounts shall be maintained and
preserved in a form reasonably requested by the Issuer.
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(b) At the request of the Issuer, the Custodian shall deliver to the
Issuer, with a copy to the Master Servicer, the most recent non-confidential
written report, if any, prepared by the Custodian's independent certified public
accountants with respect to the custodial services provided by the Custodian to
its customers.
(c) The Issuer may elect to participate in any of the electronic on-line
service and communications systems offered by the Custodian which can provide
the Issuer, on a daily basis, with the ability to view on-line or to print a
hard copy of various reports of any Account's activity and of the Property. To
the extent that such service shall include market values of any of the
Securities, the Issuer hereby acknowledges that the Custodian now obtains and
may in the future obtain information on such values from outside sources that
the Custodian considers to be reliable and the Issuer agrees that the Custodian
(i) does not verify nor represent or warrant either the reliability of such
service nor the accuracy or completeness of any such information furnished or
obtained by or through such service and (ii) shall be without liability in
selecting and utilizing such service or furnishing any information derived
therefrom.
(d) The Custodian shall issue a confirmation or safekeeping receipt to
the Issuer for each Security received by the Custodian hereunder which
identifies (as applicable) with respect thereto, the issuer, the maturity date,
the face amount and the coupon rate. The Custodian shall provide to the Issuer a
custodial statement for each preceding month listing the Securities held in each
Account. Such report shall include the principal amount of each Security or
Financial Asset, as appropriate. The Issuer shall promptly review all such
reports and shall promptly advise the Custodian of any error, omission or
inaccuracy in same. In no event shall the Custodian be required to determine or
report the market value of any Security.
9. Holding of Securities, Nominees, etc. In order to perfect the
Indenture Trustee's security interest in the Securities credited to the
Accounts, the Securities shall at all times be held or maintained in the
Custodian's name or in the name of the Custodian's nominee. Securities that are
maintained through a Securities System will be maintained with the Securities
System in an account holding only assets of the Custodian's customers, unless
prohibited by law, rule, or regulation. The Custodian may combine certificates
representing Securities held in an Account with certificates of the same issue
held by it as fiduciary or as a custodian. Securities maintained with a
Securities System shall be maintained subject to the rules of that Securities
System governing the rights and obligations among the Securities System and its
participants.
10. Proxies, etc. If the Custodian shall receive any proxies, notices,
reports or other communications relative to any of the Securities, the Custodian
shall (within three (3) Business Days after receipt by the Custodian) transmit
to the Issuer, with a copy to the Master Servicer, or notify the Issuer of the
receipt of, such proxies, notices, reports or other communications. Neither the
Custodian nor its nominees or agents shall vote upon or in respect of any of the
Securities in any Account, execute any form of proxy to vote thereon, or give
any consent or take any action (except as provided in Sections 3 and 4) with
respect thereto except upon the receipt of Instructions relative thereto.
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11. Instructions.
(a) The term "Instructions" means instructions from the Issuer in
respect of any of the Custodian's duties hereunder which have been received by
the Custodian at its address as shall have been furnished by the Custodian to
the Issuer pursuant to the provisions hereof. All Instructions shall be
communicated: (i) in writing (including, without limitation, facsimile
transmission) signed or given by such one or more person or persons as the
Issuer shall have from time to time authorized in writing to give the particular
class of Instructions in question and whose name and (if applicable) signature
and office address have been filed with the Custodian, (ii) electronically
through an electronic on-line service and communications system offered by the
Custodian or other electronic instruction system acceptable to the Custodian, or
(iii) in such other form of instructions as the Issuer (with the consent of the
Indenture Trustee) may from time to time authorize in writing and which the
Custodian has agreed in writing to accept. The Custodian shall not act upon any
oral Instructions from the Issuer or its authorized agents. The Custodian shall
promptly provide notice to the Indenture Trustee of any Instructions received by
it from the Issuer. The Custodian has the right to record any such oral
Instructions, and the Issuer hereby consents to such recording.
(b) The Custodian shall have the right to assume in the absence of
notice to the contrary from the Issuer or the Indenture Trustee, as the case may
be, that any person whose name is on file with the Custodian pursuant to this
Section 11 has been authorized by the Issuer or the Indenture Trustee, as the
case may be, to give the Instructions in question and that such authorization
has not been revoked. The Custodian may act upon and conclusively rely on,
without any liability to the Issuer or any other Person or entity for any losses
resulting therefrom, any Instructions reasonably believed by it to be furnished
by the proper person or persons as provided above.
(c) Instructions may relate to specific transactions or to types or
classes of transactions, and may be in the form of standing instructions.
Without limiting the foregoing:
(i) The Issuer may from time to time issue Instructions, in
accordance with Section 11(a), directing the Custodian to release any Security
held in physical form to the Issuer or its designee. The Custodian is hereby
authorized, upon written receipt of any such Instructions and so long as it has
not received a Notice of Exclusive Control, to release any such Security to the
Issuer or its designee. All Securities so released to any designee of the Issuer
shall be held in trust for the benefit of the Issuer as owner and the Indenture
Trustee as secured party. The Issuer or its designee shall return such Security
to the Custodian when the Issuer's need therefor no longer exists, unless the
Security has been sold or liquidated by the Issuer. The Issuer shall notify the
Custodian if such Security has been sold or liquidated, and the Custodian shall
no longer have any duties, responsibilities or liability with respect to such
Security.
(ii) Upon written notification from the Issuer and the Indenture
Trustee, the Custodian shall return the Financial Assets and any other Property
in the applicable Account to or at the direction of the Issuer. Any such
delivery shall constitute a complete discharge of the Custodian from any and all
further liability for such Financial Assets and Property hereunder.
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(iii) Prior to the delivery of a Notice of Exclusive Control, the
Issuer may give Instructions with respect to any vote to be taken upon or in
respect of any of the Securities in any Account.
12. Standard of Care.
(a) The Custodian shall be responsible for the performance of only such
duties as are set forth in this Agreement. The Custodian will act without
negligence with respect to the safekeeping of Property in the Accounts and,
except as otherwise expressly provided in this Agreement, in carrying out its
obligations under this Agreement. The Custodian will give the Property in the
Accounts equal care and safeguards as are afforded similar property owned by the
Custodian.
(b) Absent negligence, the Custodian shall not be responsible for the
title, validity or genuineness of any Property or other property or evidence of
title thereto received by it or delivered by it pursuant to this Agreement and
may rely and shall be protected in acting or refraining from acting on any
written notice, request, waiver, consent or instrument believed by it to be
genuine and to have been signed or presented by the proper party or parties. The
Custodian shall have no duty to determine or inquire into the happening or
occurrence of any event or contingency. The Custodian may consult with and
obtain advice from legal counsel as to any provision hereof or its duties
hereunder and shall be fully protected in acting on advice of such counsel. The
Custodian may conclusively rely on, without liability for any loss resulting
therefrom, any notice, request, consent, certificate or other instrument
reasonably believed by it to be genuine and to be signed or furnished by the
proper party or parties, including, without limitation, Instructions. The Issuer
agrees to indemnify, defend and hold the Custodian, its officers, directors,
employees and agents harmless from and against any and all losses, claims,
damages, demands, expenses, costs, cause of action, judgments or liabilities
that may be incurred by the Custodian, its officers, directors, employees and
agents arising directly or indirectly out of or in connection with the
Custodian's acceptance or appointment as Custodian hereunder, including the
reasonable legal costs and expenses as such expenses are incurred (including,
without limitation, the expenses of any experts, counsel or agents) of
investigating, preparing for or defending itself against any action, claim or
liability in connection with its performance hereunder. In no event, however,
shall Issuer be obligated to indemnify the Custodian and save the Custodian
harmless from any fees, expenses, charges and/or liabilities incurred by the
Custodian as a result of its own willful misconduct, bad faith or negligence.
Notwithstanding anything in this Agreement, in no event shall the Custodian be
liable for special, indirect or consequential loss or damage of any kind
whatsoever (including, but not limited to, lost of profits), even if the
Custodian has been advised of such loss or damage and regardless of the form of
action. The indemnification in favor of the Custodian in this Agreement shall
survive any resignation or removal of the Custodian (to the extent of
indemnified liabilities, costs, expenses and other indemnified amounts arising
or incurred prior to, or arising as a result of actions or omissions occurring
prior to, such resignation or removal).
(c) With respect to a Securities System, the Custodian shall only be
responsible or liable for losses, claims, damages, demands, expenses, costs or
liabilities arising from employment of such Securities System caused by the
Custodian's own negligent actions or failure to act. In the event of any loss,
claim, damage, demand, expense, cost or liability to the
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Issuer by reason of the Custodian's negligent action or failure to act, the
Custodian shall be liable to the Issuer to the extent of the Issuer's actual
damages at the time such loss, claim, damage, demand, expense, cost or liability
was discovered without reference to any special conditions or circumstances.
(d) In no event shall the Custodian be liable for any consequential or
special damages. The Custodian shall have no liability for loss arising from any
cause beyond its control, including, but not limited to, the act, failure or
neglect of any agent or correspondence selected by the Custodian for the
remittance of funds; any delay, error, omission or default of any mail,
telegraph, cable or wireless agency or operator; or the acts or edicts of any
government or governmental agency or other group or entity exercising
governmental powers.
(e) In the event the Issuer subscribes to an electronic on-line service
and communications system offered by the Custodian, the Issuer shall be fully
responsible for the security of the Issuer's connecting terminal, access thereto
and the proper and authorized use thereof and the initiation and application of
continuing effective safeguards with respect thereto and agrees to defend and
indemnify the Custodian and hold the Custodian harmless from and against any and
all losses, damages, costs and expenses (including the reasonable fees and
expenses of counsel) incurred by the Custodian as a result of any improper or
unauthorized use of such terminal by the Issuer or by Issuer's authorized
agents, unless the loss, damage, cost or expense is a result of the Custodian's
negligence or willful misconduct.
(f) All collections of funds or other property to be paid in respect of
Property in an Account shall be made for the account of, and at the risk of, the
Issuer, and the Custodian shall not be liable to the Issuer in the event that
the obligor on any Property (other than Property issued by the Custodian) fails
to make any payment due thereunder.
(g) Absent negligence, the Custodian shall have no liability for any
loss occasioned by delay in the actual receipt of notice by the Custodian of any
payment, redemption or other transaction regarding Property in an Account in
respect of which the Custodian has agreed to take action as provided in Section
3 hereof. The Custodian shall not be liable for any loss resulting from, or
caused by, acts of governmental authorities (whether de jure or de facto),
including, without limitation, nationalization, expropriation and the imposition
of currency restrictions; devaluations of or fluctuations in the value of
currencies; changes in laws and regulations applicable to the banking or
securities industry; market conditions that prevent the orderly execution of
securities transactions or affect the value of Property; acts of war, terrorism,
insurrection or revolution; strikes or work stoppages; the inability of a local
clearing and settlement system to settle transactions for reasons beyond the
control of the Custodian or hurricane, cyclone, earthquake, volcanic eruption,
nuclear fusion, fission or radioactivity or other acts of God.
(h) Absent negligence, the Custodian shall have no liability in respect
of any loss, damage or expense suffered by the Issuer, insofar as such loss,
damage or expense arises from the performance of the Custodian's duties
hereunder by reason of the Custodian's reliance upon records that were
maintained for the Issuer by entities other than the Custodian prior to the
Custodian's employment under this Agreement.
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(i) The Custodian shall have no responsibility or liability to the
Indenture Trustee for releasing any of the Property held in an Account at the
direction of the Issuer or its authorized representatives in accordance with
Section 11 hereof or, subject to Section 4 hereof, complying with Entitlement
Orders concerning an Account from the Issuer or its authorized representatives,
which are received by the Custodian before the Custodian receives a Notice of
Exclusive Control from the Indenture Trustee or its authorized representatives.
The Custodian shall have no responsibility or liability to the Issuer for
complying with a Notice of Exclusive Control or complying thereafter with
Entitlement Orders concerning an Account originated by the Indenture Trustee.
The Custodian shall have no duty to investigate or make any determination as to
whether a default or event of default exists under the Indenture, and shall
comply with a Notice of Exclusive Control without investigation even if the
Custodian receives a claim that no such default or event of default exists or
believes that no such default or event of default exists. This Agreement does
not create any obligation or duty on the part of the Custodian other than those
expressly set forth herein. Upon receipt of a Notice of Exclusive Control with
respect to an Account, the Custodian shall notify the Issuer, with a copy to the
Master Servicer, of its receipt of such Notice of Exclusive Control. The
Custodian may fully rely, and may take the actions herein set forth,
notwithstanding any notice of dispute between the Indenture Trustee and the
Issuer.
(j) The provisions of this Section shall survive termination of this
Agreement.
13. No Additional Duties. The parties acknowledge and agree that the
Custodian shall not have any additional duties other than those expressly
provided herein. The Custodian has not reviewed the Indenture or the Servicing
Agreement and shall have no responsibility or liability in respect thereof.
Notwithstanding any other provisions of this Agreement, the Custodian shall have
no duty, obligation or liability to ensure compliance with any regulation or
statute applicable to the Issuer.
14. Investment Limitations and Legal or Contractual Restrictions or
Regulations. The Custodian shall not be liable to the Issuer and the Issuer
agrees to indemnify the Custodian and its nominees, for any loss, damage or
expense suffered or incurred by the Custodian or its nominees arising out of any
violation of any investment restriction or other restriction or limitation
applicable to the Issuer pursuant to any contract or any law or regulation,
unless the loss, damage or expense is a result of the Custodian's negligence or
willful misconduct. The provisions of this Section 14 shall survive termination
of this Agreement.
15. Fees and Expenses. The Custodian shall be entitled to receive such
compensation for its services pursuant to this Agreement as may be mutually
agreed upon by the Custodian and the Issuer in writing from time to time and the
Custodian's reasonable out-of-pocket or incidental expenses in connection with
the performance of this Agreement, including, without limitation, legal fees as
described in this Agreement and/or deemed necessary in the judgment of the
Custodian to keep safe or protect the Property in the Accounts. The Issuer
hereby agrees to hold the Custodian harmless from any liability or loss
resulting from any taxes or other governmental charges, and any expense related
thereto, which may be imposed, or assessed with respect to any Property in the
Accounts and also agrees to hold the Custodian, or its nominees harmless from
any liability as a record holder of Property in the Accounts. The provisions of
this Section shall survive the termination of this Agreement.
-13- Custody and Control Agreement
All fees and other amounts payable by the Issuer hereunder shall be paid
by the Issuer to the Custodian by wire transfer or check on March 31 and
September 30 of each year, beginning in [September] 2004, or if such day is not
a business day, the following business day (each, a "Remittance Date"). With
respect to each Remittance Date, the Custodian shall be paid the amounts shown
on any invoice furnished by the Custodian to the Issuer, with a copy to the
Master Servicer, no later than the 15th day of the month prior to the month in
which such Remittance Date occurs, which invoice shall be in reasonable detail,
separately listing any expense, liability or loss (together with reasonable
supporting documentation with respect to any expense, liability or loss).
16. Representations and Warranties.
(a) The Issuer hereby represents and warrants to the Custodian and the
Indenture Trustee that:
(i) the employment of the Custodian and the allocation of fees,
expenses and other charges to the Accounts set forth in this Agreement is not
prohibited by law or any governing documents or contracts to which it is
subject;
(ii) the terms of this Agreement do not violate any obligation by
which it is bound, whether arising by contract, operation of law or otherwise;
(iii) this Agreement has been duly authorized by appropriate action
and when executed and delivered will be binding upon it in accordance with its
terms; and
(iv) it will deliver to the Custodian such evidence of such
authorization as the Custodian may reasonably require, whether by way of a
certified resolution or otherwise.
(b) The Custodian hereby represents and warrants to the Issuer and the
Indenture Trustee that:
(i) the terms of this Agreement do not violate any obligation by
which it is bound, whether arising by contract, operation of law or otherwise;
(ii) it has all necessary power and authority to make, execute and
deliver this Agreement and to perform all of the obligations to be performed by
it hereunder, this Agreement has been duly authorized, executed and delivered by
it and constitutes the legal, valid and binding obligation of the Custodian
enforceable against the Custodian in accordance with its terms, except (i) as
may be limited by bankruptcy, fraudulent conveyance, fraudulent transfer,
insolvency, reorganization, liquidation, receivership, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally,
and by general equitable principles, regardless of whether considered in a
proceeding in equity or at law and (ii) that the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefore may be brought;
(iii) it will deliver to the Issuer such reasonable evidence of such
authorization as the Issuer may reasonably require, whether by way of a
certified resolution or otherwise;
-14- Custody and Control Agreement
(iv) (a) it is and will remain a "securities intermediary" within
the meaning of such term in Section 8-102(a)(14) of Article 8 of the UCC, (b) it
is and will remain a "securities intermediary" within the meaning of such term
in 31 C.F.R. Section 357.2 (Regulations Governing Book-Entry Treasury Bonds,
Notes and Bills) and (c) it has received a copy of this Agreement signed by the
Issuer and the Indenture Trustee;
(v) each Account will be treated as a Securities Account;
(vi) it is a bank or trust company located within the United States
having a combined capital and surplus of at least $200,000,000 as set forth in
its most recent published annual report of condition and its long-term unsecured
debt obligations are rated at least BBB+ by S&P and Baa1 by Moody's;
(vii) it is not a clearing corporation (as such term is used in
Section 8-102 of the UCC); and
(viii) it does not have "notice" (as such term is used in Section
8-105 of the UCC) of any right, title, interest or claim (including, without
limitation, any adverse claim) by any Person other than the Indenture Trustee in
or to any of the Property.
(c) The Indenture Trustee hereby represents and warrants to the Issuer
and the Custodian that:
(i) the terms of this Agreement do not violate any obligation by
which it is bound, whether arising by contract, operation of law or otherwise;
(ii) it has all necessary power and authority to make, execute and
deliver this Agreement and to perform all of the obligations to be performed by
it hereunder, this Agreement has been duly authorized, executed and delivered by
it and constitutes the legal, valid and binding obligation of the Indenture
Trustee enforceable against the Indenture Trustee in accordance with its terms,
except (i) as may be limited by bankruptcy, fraudulent conveyance, fraudulent
transfer, insolvency, reorganization, liquidation, receivership, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, and by general equitable principles, regardless of whether considered
in a proceeding in equity or at law and (ii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefore may be brought;
(iii) it will deliver to the Issuer such reasonable evidence of such
authorization as the Custodian may reasonably require, whether by way of a
certified resolution or otherwise;
(iv) it is not a clearing corporation (as such term is defined in
Section 8-105 of the UCC); and
(v) it does not have "notice" (as such term is used in Section
8-105 of the UCC) of any right, title, interest or claim (including, without
limitation, any adverse claim) by any Person other than the Indenture Trustee in
or to any of the Property.
-15- Custody and Control Agreement
17. No Petition. The Custodian, by entering into this Agreement, hereby
covenants and agrees that it will not at any time institute against the Issuer
or join in any institution against the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy or similar law in connection
with any obligations relating to this Agreement; provided, that nothing in this
Section 17 shall preclude, or be deemed to estop, the Custodian from taking any
action prior to the expiration of the applicable preference period in any
involuntary proceeding filed or commenced against the Issuer by a Person other
than the Custodian or to otherwise limit any claims that the Custodian may have
against the Issuer.
18. Publicity. The Issuer shall furnish to the Custodian at its address
for notice as set forth in Section 19, prior to any distribution thereof, copies
of any material prepared for distribution to any persons who are not parties
hereto that refer in any way to the Custodian. The Issuer shall not distribute
or permit the distribution of such materials if the Custodian reasonably objects
in writing within ten (10) business days of receipt thereof (or such other time
as may be mutually agreed) after receipt thereof. The provisions of this Section
shall survive the termination of this Agreement.
19. Notices. Except as otherwise specifically provided for in this
Agreement, all notices and other communications between the parties shall be (a)
in writing and shall be either hand delivered or mailed by first class mail,
postage prepaid, or sent by electronic facsimile or courier to the address below
and (b) shall be deemed effective when received.
(a) If to the Issuer:
GE Dealer Floorplan Master Note Trust
c/o General Electric Capital Corporation, as Administrator
1600 Summer Street, 4th Floor
Stamford, CT 06927
Attention: Manager, Securitizations
Telephone: (203) 357-4328
Facsimile: (203) 961-2953
(b) If to the Master Servicer:
General Electric Capital Corporation
5595 Trillium Boulevard
Hoffman Estates, IL 60192
Attention: General Counsel
-16- Custody and Control Agreement
With a copy to:
General Electric Capital Corporation
1600 Summer Street, 4th Floor
Stamford, Connecticut 06927
Attention: Manager, Securitizations
Telephone: (203) 357-4328
Facsimile: (203) 961-2953;
(c) If to the Custodian:
[ ]
(d) If to the Indenture Trustee:
Wilmington Trust Company
1100 N. Market Street
Wilmington, DE 19890
Attention: [________]
Telephone: [________]
Facsimile: [________]
Each party may change its address for purposes hereof by giving notice to
the other parties in accordance with the provisions of this paragraph.
20. Amendment, Modifications, etc. No provision of this Agreement may be
amended, modified or waived except in a writing signed by the parties hereto. No
waiver of any provision hereto shall be deemed a continuing waiver unless it is
so designated. No failure or delay on the part of any party in exercising any
power or right under this Agreement operates as a waiver, nor does any single or
partial exercise of any power or right preclude any other or further exercise
thereof or the exercise of any other power or right.
21. Term; Termination.
(a) This Agreement may be terminated by the Issuer by an instrument in
writing delivered or mailed, postage prepaid, to the Custodian and the Indenture
Trustee, such termination to take effect on the date of such delivery or receipt
by the Custodian; provided, however, that until a successor custodian shall have
been appointed by the Issuer, and the Custodian shall have transferred the
Financial Assets and other Property as provided below, this Agreement shall
continue in full force and effect.
(b) This Agreement may be terminated by the Custodian by an instrument
in writing delivered or mailed, postage prepaid, to the Issuer and the Indenture
Trustee (with a copy to the Rating Agencies), such termination to take effect
not sooner than (i) thirty (30) days after the date of such delivery or mailing
if Wilmington Trust Company is being replaced as Indenture Trustee under the
Indenture, or (ii) ninety (90) days after the date of such delivery or mailing;
provided, however, that until a successor custodian shall have been appointed
and the Custodian
-17- Custody and Control Agreement
shall have transferred the Property as provided below to such successor
custodian, this Agreement shall continue in full force and effect. If such
successor custodian is not appointed by the Issuer within ninety (90) days of
the delivery by the Custodian of its notice of termination of this Agreement,
the Indenture Trustee acting alone shall designate such successor custodian, in
writing delivered to the Issuer and the Custodian, selected from among the ten
largest commercial banks (in terms of deposit) in New York City or in accordance
with the directions of a final order or judgment of a court of competent
jurisdiction. If a successor custodian shall be appointed as herein provided
upon termination of this Agreement, the Custodian shall transfer all Property to
the designated account of the successor custodian physically or in the
appropriate book-entry system, if feasible, and thereupon the Custodian shall be
discharged from any and all further responsibility hereunder.
22. Assignments. The Custodian acknowledges that the Issuer's rights
under this Agreement have been pledged to the Indenture Trustee in its capacity
as Indenture Trustee as security for the obligations of the Issuer described as
secured obligations in the Indenture. From and after the date on which the
Custodian receives a Notice of Exclusive Control, the Custodian agrees to
perform its duties hereunder for the benefit of the Indenture Trustee and its
successors and assigns and agrees that it will only accept instructions from the
Indenture Trustee. Except as otherwise provided in the first sentence of this
Section, this Agreement shall not be assignable by any party, except as
otherwise provided in this Agreement, but shall bind the successors in interest
of the Issuer and the Custodian.
23. Location of Custodian. Regardless of any provision in any such
agreement, the State of New York shall be deemed to be Custodian's location for
the purposes of this Agreement and the perfection and priority of the Indenture
Trustee's security interest in the Accounts and the Financial Assets and other
Property credited thereto.
24. Governing Law. THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER
SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF
THE GENERAL OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW
PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL
COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF
MANHATTAN IN NEW YORK CITY. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH
PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH
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PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM
NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES
PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH
ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER
PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT
ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 19 AND THAT SERVICE SO MADE
SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT
THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE
PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO
SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS
ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON
AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN
ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A
JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION
OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO
WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO
RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
25. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
26. Entire Agreement. This Agreement, together with all Schedules and
Exhibits attached hereto, contain the entire agreement between the parties
relating to the subject matter hereof and supersedes any oral statements and
prior writings with respect thereto.
27. Headings. The headings of the paragraphs hereof are included for
convenience of reference only and do not form a part of this Agreement.
28. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed an original, but
all such counterparts shall together constitute but one and the same instrument.
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29. Agents. The Custodian hereby acknowledges that it has been advised
that any agent of the Issuer may act on behalf of the Issuer hereunder for
purposes of all consents, amendments, waivers and other actions permitted or
required to be taken, delivered or performed by the Issuer, and the Indenture
Trustee agrees that any such action taken by an agent on behalf of the Issuer
shall satisfy the Issuer's obligations hereunder.
30. Limitation of Liability. Notwithstanding any other provision herein
or elsewhere, this Agreement has been executed and delivered by The Bank of New
York (Delaware), not in its individual capacity, but solely in its capacity as
Trustee of the Issuer, in no event shall The Bank of New York (Delaware) in its
individual capacity have any liability in respect of the representations,
warranties, or obligations of the Issuer hereunder or under any other document,
as to all of which recourse shall be had solely to the assets of the Issuer, and
for all purposes of this Agreement and each other document, the Trustee (as such
or in its individual capacity) shall be subject to, and entitled to the benefits
of, the terms and provisions of the Trust Agreement.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, each of the parties has caused its duly authorized
signatories to execute this Agreement as of the date first written above.
[ ],
as Custodian
By: _______________________________
Name: _____________________________
Title: ____________________________
S-1 Custody and Control Agreement
GE DEALER FLOORPLAN MASTER NOTE
TRUST, as Issuer
By: The Bank of New York (Delaware), not in its
individual capacity, but solely as Trustee
By: _______________________________
Name: _____________________________
Title: ____________________________
S-2 Custody and Control Agreement
WILMINGTON TRUST COMPANY,
as Indenture Trustee
By: __________________________________________
Name: ________________________________________
Title: _______________________________________
S-3 Custody and Control Agreement
EXHIBIT A
INDENTURE TRUSTEE'S NOTICE OF EXCLUSIVE CONTROL
__________ __, 200__
TO: Wilmington Trust Company
1100 N. Market Street
Wilmington, DE 19890
Attention: ____________________
Re: Notice of Exclusive Control - [ ] Account No. [ ]
Dear Sirs:
Pursuant to the provisions of the Custody and Control Agreement (the
"Agreement"), dated as of [ ], 2004, among the undersigned as Indenture Trustee,
GE Dealer Floorplan Master Note Trust, as Issuer, and you as Custodian, the
undersigned hereby gives notice of the exercise of exclusive control over the
[ACCOUNT/ACCOUNT NO.]. Subject to the provisions of the Agreement, you are
hereby instructed to transfer and credit on your books and records all Property
in the [ACCOUNT/ACCOUNT NO.] [to an account in the name of the undersigned as
the Entitlement Holder].
In accordance with the Agreement, you are hereby notified to
cease complying with Entitlement Orders or other directions concerning the
[ACCOUNT/ACCOUNT NO.] or the Financial Assets [and other Property] therein
originated by the Issuer or its representatives.
A-1 Custody and Control Agreement
All capitalized terms used herein without definition have the same
meanings as are ascribed to such terms in the Agreement.
Very truly yours,
WILMINGTON TRUST COMPANY, as
Indenture Trustee
By: _____________________________
Name: ____________________________
Title: ___________________________
A-2 Custody and Control Agreement
Exhibit 4.20
PERFORMANCE GUARANTY
December 31, 2002
Wilmington Trust Company, as Trustee
1100 N. Market Street
Wilmington, Delaware 19890
Re: GE Commercial Distribution Finance Corporation
Ladies and Gentlemen:
Reference is hereby made to (i) the Amended and Restated Pooling and
Servicing Agreement, dated as of April 1, 2000, as amended as of December 31,
2002 (as the same may be further amended, supplemented or modified from time to
time, the "PSA"), among CDF Financing, L.L.C. ("LLC"), as Seller, GE Commercial
Distribution Finance Corporation ("CDF"), as Servicer and Wilmington Trust
Company, as Trustee (in such capacity, together with any successor in such
capacity, the "Trustee") and (ii) the Receivables Contribution and Sale
Agreement, dated as of December 1, 1993, amended and restated as of March 1,
1994, amended as of January 24, 1996, amended and restated as of October 1, 1996
and amended as of December 31, 2002 (as the same may be further amended,
supplemented or modified from time to time, the "Receivables Contribution and
Sale Agreement"), among CDF, as Seller (in such capacity, the "Originator"), and
Deutsche Floorplan Receivables, L.P. ("Limited Partnership"). Unless the context
otherwise requires, capitalized terms used in this performance guaranty
("Performance Guaranty") and not otherwise defined herein shall have the
meanings provided in the PSA or the Receivables Contribution and Sale Agreement,
as applicable.
1. Guaranty. General Electric Capital Corporation ("GECC" or "Performance
Guarantor") hereby unconditionally and irrevocably undertakes and agrees with
and for the benefit of the Trustee to cause the due performance and observance
by the Servicer (for so long as CDF or any Affiliate of GECC is the Servicer
under the PSA) and the Originator of all of the terms, covenants, agreements and
undertakings on the part of the Servicer, to be performed or observed by the
Servicer under the PSA and all of the Supplements, and on the part of the
Originator to be performed and observed by the Originator under the Receivables
Contribution and Sale Agreement (the PSA, the Supplements, and the Receivables
Contribution and Sale Agreement, altogether, the "Agreements"), in accordance
with the terms thereof including any agreement of the Servicer or Originator to
pay any money under the Agreements (such terms, covenants, agreements and
undertakings on the part of the Servicer and the Originator to be performed or
observed by the Servicer and the Originator being collectively called the
"Guaranteed Obligations"). In the event that the Servicer or the Originator, as
the case may be, shall fail in any manner whatsoever to perform or observe any
of their respective
Performance Guaranty
1
Guaranteed Obligations when the same shall be required to be performed or
observed by the Servicer or the Originator, as the case may be, under the
applicable Agreements (after giving effect to any cure period), then the
Performance Guarantor will itself duly perform or observe, or cause to be duly
performed or observed, such Guaranteed Obligation, and it shall not be a
condition to the accrual of the obligation of the Performance Guarantor
hereunder to perform or observe any Guaranteed Obligation (or to cause the same
to be performed or observed) that the Trustee shall have first made any request
of or demand upon or given any notice to the Performance Guarantor or to the
Servicer or the Originator or their successors or assigns, or have instituted
any action or proceeding against the Performance Guarantor or the Servicer or
the Originator or their successors or assigns in respect thereof.
Notwithstanding anything to the contrary contained herein, the obligations of
the Performance Guarantor hereunder in respect of the Servicer and the
Originator are expressly limited to the Guaranteed Obligations.
2. Enforcement. The Trustee may proceed to enforce the obligations of
the Performance Guarantor under this Performance Guaranty without first pursuing
or exhausting any right or remedy which the Trustee may have against the
Servicer, the Originator, any other Person or any collateral.
3. Obligations Absolute. To the extent permitted by law, the
Performance Guarantor will perform its obligations under this Performance
Guaranty regardless of any law now or hereafter in effect in any jurisdiction
affecting any of the terms of this Performance Guaranty or the Agreements or any
document delivered in connection with this Performance Guaranty and the
Agreements or the rights of the Trustee with respect thereto. The obligations of
the Performance Guarantor under this Performance Guaranty shall be absolute and
unconditional irrespective of:
(i) any lack of validity or enforceability or the discharge or
disaffirmance (by any Person, including a trustee in bankruptcy) of the
Guaranteed Obligations, this Performance Guaranty, the Agreements or any
Receivable or any document or any other agreement or instrument relating
thereto;
(ii) any exchange, release or non-perfection of any collateral or any
release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Guaranteed Obligations;
(iii) any failure to obtain any authorization or approval from or other
action by, or to notify or file with, any Governmental Authority or regulatory
body required in connection with the performance of such obligations by the
Servicer or the Originator; or
(iv) any impossibility or impracticality of performance, illegality,
force majeure, any act of any governmental or any other circumstance which might
constitute a legal or equitable defense available to, or a discharge of, the
Servicer, the Originator or the Performance Guarantor, or any other
circumstance, event or happening whatsoever, whether foreseen or unforeseen and
whether similar or dissimilar to anything referred to above in this Performance
Guaranty.
Performance Guaranty
2
The Performance Guarantor further agrees that its obligations under this
Performance Guaranty shall not be limited by any valuation or estimation made in
connection with any proceedings involving the Servicer, the Originator or the
Performance Guarantor filed under Title 11 of the United States Code, as amended
(the "Bankruptcy Code"), whether pursuant to Section 502 of the Bankruptcy Code
or any other Section thereof. The Performance Guarantor further agrees that the
Trustee shall not be under any obligation to marshall any assets in favor of or
against or in payment of any or all of the Guaranteed Obligations. The
Performance Guarantor further agrees that, to the extent that a payment or
payments are made by or on behalf of the Servicer or the Originator, which
payment or payments or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to the
Servicer, the Originator, or the estate, trustee, receiver or any other party
relating to the Servicer or the Originator, including the Performance Guarantor,
under any bankruptcy law, state or federal law, common law or equitable cause
then to the extent of such payment or repayment, the Guaranteed Obligations or
part thereof which had been paid, reduced or satisfied by such amount shall be
reinstated and continued in full force and effect an of the date such initial
payments, reduction or satisfaction occurred. The obligations of the Performance
Guarantor under this Performance Guaranty shall not be discharged except by
performance as provided herein.
4. Irrevocability. The Performance Guarantor agrees that its
obligations under this Performance Guaranty shall be irrevocable. In the event
that under applicable law (notwithstanding the Performance Guarantor's agreement
regarding the irrevocable nature of its obligations hereunder) the Performance
Guarantor shall have the right to revoke this Performance Guaranty, this
Performance Guaranty shall continue in full force and effect until a written
revocation hereof specifically referring hereto, signed by the Performance
Guarantor, is actually received by the Trustee at the applicable address
determined in accordance with the PSA. Any such revocation shall not affect the
right of the Trustee to enforce its respective rights under this Performance
Guaranty with respect of any Guaranteed Obligation (including any Guaranteed
Obligation that is contingent or unmatured) which arose on or prior to the date
the aforementioned revocation was received by the Trustee. Without limiting the
foregoing, this Performance Guaranty may not be revoked at any time until the
Termination Date for the last outstanding Series occurs.
5. Waiver. The Performance Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations, this Performance Guaranty, the Agreements, and any other
document related thereto and any requirement that the Trustee exhaust any right
or take any action against the Servicer, any other Person or any collateral.
6. Subrogation. The Performance Guarantor will not exercise or assert
any rights which it may acquire by way of subrogation under this Performance
Guaranty unless and until all of the Guaranteed Obligations shall have been paid
and performed in full. If any payment shall be made to the Performance Guarantor
on account of any subrogation
Performance Guaranty
3
rights at any time when all of the Guaranteed Obligations shall not have been
paid and performed in full each and every amount so paid will be held in trust
for the benefit of the Trustee and forthwith be paid to the Trustee, in
accordance with this Performance Guaranty and the Agreements, to be credited and
applied to the Guaranteed Obligations to the extent then unsatisfied, in
accordance with the terms of the Agreements. In the event (i) the Performance
Guarantor shall have satisfied any of the Guaranteed Obligations and (ii) all of
the Guaranteed Obligations shall have been paid and performed in full, the
Trustee will at the Performance Guarantor's request and expense, execute and
deliver to the Performance Guarantor appropriate documents, without recourse and
without representation or warranty of any kind, necessary to evidence or confirm
the transfer by way of subrogation to the Performance Guarantor of the rights of
the Trustee with respect to the Guaranteed Obligations to which the Performance
Guarantor shall have become entitled by way of subrogation.
7. Governing Law; Submission to Jurisdiction. (a) THIS PERFORMANCE
GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW
PROVISIONS OF THE STATE OF NEW YORK).
(b) THE PERFORMANCE GUARANTOR HEREBY CONSENTS AND AGREES THAT THE STATE
OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL
HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
PERTAINING TO THIS PERFORMANCE GUARANTY OR TO ANY MATTER ARISING OUT OF OR
RELATING TO THIS PERFORMANCE GUARANTY; PROVIDED, THAT THE PERFORMANCE GUARANTOR
ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED, FURTHER,
THAT NOTHING IN THIS PERFORMANCE GUARANTY SHALL BE DEEMED OR OPERATE TO PRECLUDE
THE TRUSTEE FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER
JURISDICTION TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE TRUSTEE.
THE PERFORMANCE GUARANTOR SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION
IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND THE PERFORMANCE GUARANTOR
HEREBY WAIVES ANY OBJECTION THAT IT MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH
COURT. THE PERFORMANCE GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS,
COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT
SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED
OR CERTIFIED MAIL ADDRESSED TO THE PERFORMANCE GUARANTOR AND THAT SERVICE SO
MADE SHALL BE DEEMED COMPLETED UPON THE
Performance Guaranty
4
EARLIER OF THE PERFORMANCE GUARANTOR'S ACTUAL RECEIPT THEREOF OR THREE DAYS
AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS
PARAGRAPH SHALL AFFECT THE RIGHT OF THE PERFORMANCE GUARANTOR TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
[SIGNATURE FOLLOWS]
Performance Guaranty
5
IN WITNESS WHEREOF, the Performance Guarantor has caused this Performance
Guaranty to be duly executed as of the day and year first above written.
GENERAL ELECTRIC CAPITAL CORPORATION,
as Performance Guarantor
By: /s/ Matthew Zakrzewski
-------------------------------------
Name: Matthew Zakrzewski
Title: Attorney-in-fact
|
Performance Guaranty
Exhibit 5.1
Mayer, Brown, Rowe & Maw LLP
190 South La Salle Street
Chicago, Illinois 60603-3441
Main Tel (312) 782-0600
Main Fax (312) 701-7711
www.mayerbrownrowe.com
July 2, 2004
CDF Financing, L.L.C.
5595 Trillium Boulevard
Hoffman Estates, Illinois 60192
CDF Funding, Inc.
5595 Trillium Boulevard
Hoffman Estates, Illinois 60192
Re: CDF Financing, L.L.C.
CDF Funding, Inc.
Distribution Financial Services Floorplan Master Trust
GE Dealer Floorplan Master Note Trust
Amendment No. 2 to Registration Statement on Form S-3
We have acted as special counsel for CDF Financing, L.L.C., a Delaware limited
liability company ("CDF Financing"), and CDF Funding, Inc., a Delaware
corporation ("CDF Funding"), in connection with the filing by CDF Financing, CDF
Funding, Distribution Financial Services Floorplan Master Trust, a trust formed
under the laws of the State of New York (the "Underlying Trust") and GE Dealer
Floorplan Master Note Trust, a Delaware statutory trust (the "Note Trust"), as
co-registrants (collectively, the "Co-Registrants") with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act"), of
a Registration Statement on Form S-3 (Registration Nos. 333-115582,
333-115582-02, 333-115582-03 and 333-115582-04), as amended (the "Registration
Statement"), registering (i) a Note Trust Certificate to be issued pursuant to
the Amended and Restated Pooling and Servicing Agreement, dated as of April 1,
2000 (as amended, the "PSA"), among CDF Financing, L.L.C., GE Commercial
Distribution Finance Corporation and Wilmington Trust Company, as trustee, and a
related Series Supplement (the "Series Supplement" and together with the PSA,
the "Pooling and Servicing Agreement") and
Brussels Charlotte Chicago Cologne Frankfurt Houston London Los Angeles
Manchester New York Palo Alto Paris Washington, D.C.
Independent Mexico City Correspondent: Jauregui, Navarrete, Nader y Rojas, S.C.
Mayer, Brown, Rowe & Maw LLP operates in combination with our associated
English limited liability partnership in the offices listed above.
July 2, 2004
Page 2
(ii) asset-backed notes (the "Notes") secured by the Note Trust's interests in
various receivables and related assets and by the Note Trust Certificate. The
Note Trust Certificate represents an undivided interest in all of the property
of the Underlying Trust, including, but not limited to, receivables in a
portfolio of dealer floorplan accounts and related assets. The Notes of a
particular Series will be issued pursuant to a Master Indenture (as may be
amended or otherwise modified from time to time, the "Master Indenture"),
between the Note Trust and Wilmington Trust Company, as indenture trustee (the
"Indenture Trustee"), and a related Indenture Supplement (the "Indenture
Supplement" and together with the Master Indenture, the "Indenture"), between
the Note Trust and the Indenture Trustee, substantially in the form filed as
Exhibit 4.2 to the Registration Statement. Unless otherwise defined herein, all
capitalized terms used herein shall have the meanings assigned to them in the
Master Indenture.
We have examined executed copies of the Registration Statement, the PSA, and
forms of the Series Supplement, the Master Indenture, the Trust Agreement, the
First Tier Agreement, the Second Tier Agreement, and such other documents as we
have deemed necessary for the purposes of this opinion (collectively, the
"Transaction Documents").
We have assumed for the purposes of the opinions set forth below that the Notes
will be issued in Series created as described in the Registration Statement and
that the Notes will, at CDF Funding's direction, be sold by the Note Trust for
reasonably equivalent consideration.
We have also assumed that: (i) the Transaction Documents, the Note Trust
Certificate and the Notes have been or will be duly authorized by all necessary
corporate, limited liability or trust action; (ii) the Notes will be duly
issued, executed, authenticated and delivered in accordance with the provisions
of the Indenture; (iii) the issuance, transfer and pledge of the Note Trust
Certificate to the Note Trust pursuant to the Transaction Documents will not be
contrary to any applicable law, rule, regulation or order; and (iv) the Note
Trust Certificate will be duly executed, authenticated and delivered in the name
of the Note Trust in accordance with the terms of the Pooling and Servicing
Agreement.
In expressing our opinion, we have assumed, without independent verification,
that the facts presented in the Transaction Documents are correct, the
Transaction Documents have been or will be consummated according to their terms,
and the factual representations of the parties to the Transaction Documents and
their affiliates are correct. In addition, we have assumed that the parties to
each Transaction Document will satisfy their respective obligations thereunder.
We express no opinion with respect to any series of Notes or any Note Trust
Certificate for which we do not act as counsel to you.
On the basis of the foregoing examination and assumptions, and upon
consideration of applicable law, it is our opinion that:
1. When the Indenture Supplement for a Series of Notes has been duly
and validly authorized, executed and delivered by the Note Trust and the
Indenture Trustee substantially in the form filed as an exhibit to the
Registration Statement and the Notes of that Series have been
July 2, 2004
Page 3
duly executed, authenticated, delivered and sold as contemplated in the Master
Indenture and the Registration Statement, such Notes will be binding obligations
of the Note Trust.
2 When the Series Supplement has been duly and validly authorized,
executed and delivered substantially in the form filed as an exhibit to the
Registration Statement and the Note Trust Certificate has been duly executed,
authenticated, delivered and sold as contemplated in the Transaction Documents
and the Registration Statement, the holder of the Note Trust Certificate will be
entitled to the benefits of the Pooling and Servicing Agreement.
We hereby consent to the filing of this letter as an exhibit to the Registration
Statement, without admitting that we are "experts" within the meaning of the Act
or the rules and regulations of the Commission issued thereunder, with respect
to any part of the Registration Statement, including this opinion as an exhibit.
Our opinion set forth above is subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law) and by the
discretion of the court before which any proceeding therefore may be brought.
We are members of the Bar of the State of Illinois, and we do not express any
opinion herein concerning any law other than the law of the State of New York,
the General Corporation Law of Delaware and the Federal law of the United
States.
/s/ Mayer, Brown, Rowe & Maw LLP
MAYER, BROWN, ROWE & MAW LLP
|
MLK/JRS/MRA
Exhibit 8.1
[LOGO OF MAYER BROWN ROWE & MEW]
July 2, 2004 Mayer, Brown, Rowe & Maw LLP
190 South La Salle Street
Chicago, Illinois 60603-3441
CDF Financing, L.L.C. Main Tel (312) 782-0600
5595 Trillium Boulevard Main Fax (312) 701-7711
Hoffman Estates, Illinois 60192 www.mayerbrownrowe.com
CDF Funding, Inc.
5595 Trillium Boulevard
Hoffman Estates, Illinois 60192
Re: CDF Financing, L.L.C.
CDF Funding, Inc.
|
Distribution Financial Services Floorplan Master Trust
GE Dealer Floorplan Master Note Trust
Amendment No. 2 to Registration Statement on Form S-3
We have acted as tax counsel for CDF Funding, Inc., a Delaware corporation ("CDF
Funding"), in connection with the above-referenced Registration Statement
(together with the exhibits and any amendments thereto and the prospectus
supplement described therein, the "Registration Statement"), filed by CDF
Financing, L.L.C., a Delaware limited liability company ("CDF Financing"), CDF
Funding, Distribution Financial Services Floorplan Master Trust, a trust formed
under the laws of the State of New York (the "Underlying Trust"), and GE Dealer
Floorplan Master Note Trust, a Delaware statutory trust (the "Note Trust")
formed by CDF Funding pursuant to a trust agreement (the "Trust Agreement"), by
and between CDF Funding and the Bank of New York (Delaware), as trustee (the
"Trustee"), as co-registrants (collectively, the "Co-Registrants") with the
Securities and Exchange Commission in connection with the registration by the
Co-Registrants of Asset Backed Notes (the "Notes") with a proposed maximum
aggregate offering price of $6,000,000,000.
As described in the Registration Statement, the Notes will be issued from time
to time in series, with each series being issued by the Note Trust. For each
series, the Notes will be issued pursuant to an Indenture and an Indenture
Supplement between the Note Trust and Wilmington Trust Company, as indenture
trustee (the "Indenture Trustee").
In that connection, we generally are familiar with the proceedings required to
be taken in connection with the proposed authorization and issuance of any
series of Notes and have examined copies of such documents, corporate records
and other instruments as we have deemed necessary or appropriate for the purpose
of this opinion, including the Registration Statement and, in each case as filed
as an exhibit to the Registration Statement, (i) the form of Receivables
Purchase and Contribution Agreement between CDF Funding, as seller, and the Note
Trust, as buyer, (ii) the form of Servicing Agreement between the Note Trust and
General Electric Capital
Brussels Charlotte Chicago Cologne Frankfurt Houston London Los Angeles
Manchester New York Palo Alto Paris Washington, D.C.
Independent Mexico City Correspondent: Jauregui, Navarrete, Nader y Rojas, S.C.
Mayer, Brown, Rowe & Maw LLP operates in combination with our associated
English limited liability partnership in the offices listed above.
Mayer, Brown, Rowe & Maw LLP
July 2, 2004
Page 2
Corporation, as master servicer (in such capacity, the "Master Servicer"), (iii)
the form of Indenture and Indenture Supplement (including the form of Notes
included as exhibits thereto), (iv) the form of Trust Agreement and (v) the form
of Receivables Sale Agreement between GE Commercial Distribution Finance
Corporation and Transamerica Commercial Finance Corporation, as sellers, and CDF
Funding, as buyer (collectively, the "Operative Documents").
The opinions set forth herein are based upon the applicable provisions of the
Internal Revenue Code of 1986, as amended (the "Code"), Treasury regulations
promulgated and proposed thereunder, current positions of the Internal Revenue
Service (the "IRS") contained in published Revenue Rulings and Revenue
Procedures, current administrative positions of the IRS and existing judicial
decisions. We will not seek tax rulings from the IRS with respect to any of the
matters discussed herein. The statutory provisions, regulations and
interpretations on which our opinions are based are subject to change, which
changes could apply retroactively. In addition, there can be no assurance that
the IRS may not take positions contrary to those stated in our opinions.
Based upon the foregoing and assuming that the Operative Documents are duly
authorized, executed and delivered in substantially the form we have examined
and that the transactions contemplated to occur under the Operative Documents in
fact occur in accordance with the terms thereof, we are of the opinion that the
statements set forth in the Prospectus forming part of the Registration
Statement under the caption "U.S. Federal Income Tax Consequences" and the
statements set forth in the Prospectus Supplement forming part of the
Registration Statement under the caption "Summary of Terms -- Tax Status" are
based upon reasonable interpretations of existing U.S. federal tax law. To the
extent that such discussions expressly state our opinion, or state that our
opinion has been or will be provided as to any series of Notes, we hereby
confirm and adopt such opinion herein. We also note that the Operative Documents
filed as exhibits to the Registration Statement do not relate to a specific
transaction. Accordingly, the above-referenced description of U.S. federal
income tax consequences may require modification in the context of an actual
transaction. There can be no assurance, however, that the conclusions of U.S.
federal tax law presented therein will not be successfully challenged by the IRS
or significantly altered by new legislation, changes in IRS position or judicial
decisions, any of which challenges or alterations may be applied retroactively
with respect to completed transactions.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to Mayer, Brown, Rowe & Maw LLP
therein under the captions "U.S. Federal Income Tax Consequences" in the
Prospectus forming part of the Registration Statement and "Summary of Terms -
Tax Status" in the Prospectus Supplement forming part of the Registration
Statement. In giving such consent, we do not admit that we are "experts" within
the meaning of the term used in the Securities Act of 1933, as amended or the
rules and regulations of the Securities and Exchange Commission issued
thereunder, with respect to any part of the Registration Statement, including
this opinion as an exhibit or otherwise.
Mayer, Brown, Rowe & Maw LLP
July 2, 2004
Page 3
/s/ Mayer, Brown, Rowe & Maw LLP
MAYER, BROWN, ROWE & MAW LLP
|
WAL/KRA/MRA
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of
a Trustee Pursuant to Section 305(b)(2)
WILMINGTON TRUST COMPANY
(Exact name of Trustee as specified in its charter)
DELAWARE 51-0055023
(State or other jurisdiction or incorporation or organization) (I.R.S. Employer Identification No.)
|
RODNEY SQUARE NORTH
1100 NORTH MARKET STREET
WILMINGTON, DELAWARE 19890
(Address of principal executive offices)
CYNTHIA L. CORLISS
VICE PRESIDENT AND TRUST COUNSEL
WILMINGTON TRUST COMPANY
RODNEY SQUARE NORTH
WILMINGTON, DELAWARE 19890
(302) 651-8516
(Name, address, including zip code, and telephone number, including area code,
of agent of service)
GE DEALER FLOORPLAN MASTER NOTE TRUST
(Issuer of the Notes)
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
(Issuer of the Note Trust Certificate)
CDF FINANCING, L.L.C. CDF FUNDING, INC.
(TRANSFEROR TO DISTRIBUTION FINANCIAL SERVICES (TRANSFEROR TO GE DEALER FLOORPLAN
FLOORPLAN MASTER TRUST) MASTER NOTE TRUST)
(Exact name of registrants as specified in its charter) (Exact name of registrants as specified in its charter)
DELAWARE DELAWARE
(State or other jurisdiction or incorporation or organization) (State or other jurisdiction or incorporation or organization)
88-0355652 20-1060484
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
5595 TRILLIUM BOULEVARD 5595 TRILLIUM BOULEVARD
HOFFMAN ESTATES, ILLINOIS 60192 HOFFMAN ESTATES, ILLINOIS 60192
(847) 747-6800 (847) 747-6800
(Address, including zip code, and telephone number, including (Address, including zip code, and telephone number, including
registrants' principal executive offices) area code, of registrants' principal executive offices)
|
FRED ROBUSTELLI, ESQ.
GE COMMERCIAL FINANCE
1600 SUMMER STREET, 4TH FLOOR
STAMFORD, CONNECTICUT 06927
(203) 357-4004
(Name, address, including zip code, and telephone number, including area code,
of agent of service)
ASSET BACKED NOTES
NOTE TRUST CERTIFICATE
(Title of the Indenture Securities)
2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
|
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of Eligibility and
Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 25th day
of June, 2004.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Rosemary Kennard By: /s/ Denise M. Geran
-------------------------------------- ---------------------------
Assistant Secretary Name: Denise M. Geran
Title: Vice President
|
3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is WILMINGTON TRUST COMPANY whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the Corporation shall require, to make
by-laws not inconsistent with the Constitution or laws of the United
States or of this State, to discount bills, notes or other evidences
of debt, to receive deposits of money, or securities for money, to
buy gold and silver bullion and foreign coins, to buy and sell bills
of exchange, and generally to use,
exercise and enjoy all the powers, rights, privileges and franchises
incident to a corporation which are proper or necessary for the
transaction of the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property,
real or personal, against any claim or claims, adverse to his
interest therein, and to prepare and give certificates of title for
any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public
officers, courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and individuals, and from
all corporations whether state, municipal, corporate or private, and
to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between
the two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or
2
decree to be entered in any court of record within the State of
Delaware or elsewhere, or which may now or hereafter be required by
any law, judge, officer or court in the State of Delaware or
elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken and held
as security for the performance of the duties devolving upon it by
such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or of
any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for, and
dispose of interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of indebtedness
and other property, any and all the rights, powers and privileges of
individual owners thereof, including the right to vote thereon; to
invest and deal in and with any of the moneys of the Corporation
upon such securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such investments;
to issue bonds and secure the same by pledges or deeds of trust or
mortgages of or upon the whole or any part of the property held or
owned by the Corporation, and to sell and pledge such bonds, as and
when the Board of Directors shall determine, and in the promotion of
its said corporate business of investment and to the extent
authorized by law, to lease, purchase, hold, sell, assign, transfer,
pledge, mortgage and convey real
3
and personal property of any name and nature and any estate or
interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary
or convenient in and about the conduct and management of such
business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose
of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of,
real and personal property, of every class and description, in any
State, District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects, purposes
and powers.
FOURTH: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
4
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article FOURTH, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of stock and whether such
dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale
5
of assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article FOURTH), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article FOURTH), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
FOURTH, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article FOURTH), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding-up, of the Corporation,
the holders of the Common Stock shall be entitled to receive all of
the remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by them
respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article FOURTH, each
holder of Common Stock shall have one vote in respect of each share
of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities
6
convertible into or exchangeable for stock of the Corporation of any class
or series, or carrying any right to purchase stock of any class or series,
but any such unissued stock, additional authorized issue of shares of any
class or series of stock or securities convertible into or exchangeable
for stock, or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution of the Board of Directors to such
persons, firms, corporations or associations, whether such holders or
others, and upon such terms as may be deemed advisable by the Board of
Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article FOURTH and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article FOURTH that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time
to time by the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in
7
office, and provided further, that the number of directors constituting
the whole Board shall be twenty-four until otherwise fixed by a majority
of the whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such election,
the stockholders shall elect a successor to such director to hold office
until the next election of the class for which such director shall have
been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any
incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any
time without cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of
8
stock of the Corporation which are beneficially owned by each such
nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agents and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however,
that any such additional By-Laws, alterations or repeal may be adopted
only by the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
9
FOURTEENTH: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated by
them.
FIFTEENTH: - (a) (1) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of this
Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
10
(2) The term "business combination" as used in this Article
FIFTEENTH shall mean any transaction which is referred to in
any one or more of clauses (A) through (E) of paragraph 1 of
the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation or By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual, firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on such business combination, or
immediately prior to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise,
11
or (ii) the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect on
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article FIFTEENTH on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any
12
provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this
Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
13
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 2003
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. Annual Meeting. The annual meeting of stockholders shall be
held on the third Thursday in April each year at the principal office at the
Company or at such other date, time or place as may be designated by resolution
by the Board of Directors.
Section 2. Special Meetings. Special meetings of stockholders may be
called at any time by the Board of Directors, the Chairman of the Board, the
Chief Executive Officer or the President.
Section 3. Notice. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10) days before said meeting,
at his last known address, a written or printed notice fixing the time and place
of such meeting.
Section 4. Quorum. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a smaller number of shares may adjourn from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each share of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE 2
DIRECTORS
Section 1. Management. The affairs and business of the Company shall be
managed by or under the direction of the Board of Directors.
Section 2. Number. The authorized number of directors that shall
constitute the Board of Directors shall be fixed from time to time by or
pursuant to a resolution passed by a majority of the Board of Directors within
the parameters set by the Charter of the Company. No more than two directors may
also be employees of the Company or any affiliate thereof.
Section 3. Qualification. In addition to any other provisions of these
Bylaws, to be qualified for nomination for election or appointment to the Board
of Directors, a person must have not attained the age of sixty-nine years at the
time of such election or appointment, provided however, the Nominating and
Corporate Governance Committee may waive such qualification as to a particular
candidate otherwise qualified to serve as a director upon a good faith
determination by such committee that such a waiver is in the best interests of
the Company and its stockholders. The
Chairman of the Board and the Chief Executive Officer shall not be qualified to
continue to serve as directors upon the termination of their service in those
offices for any reason.
Section 4. Meetings. The Board of Directors shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Board of Directors, the Chief Executive Officer or the President.
Section 5. Special Meetings. Special meetings of the Board of Directors
may be called at any time by the Chairman of the Board, the Chief Executive
Officer or the President, and shall be called upon the written request of a
majority of the directors.
Section 6. Quorum. A majority of the directors elected and qualified shall
be necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 7. Notice. Written notice shall be sent by mail to each director
of any special meeting of the Board of Directors, and of any change in the time
or place of any regular meeting, stating the time and place of such meeting,
which shall be mailed not less than two days before the time of holding such
meeting.
Section 8. Vacancies. In the event of the death, resignation, removal,
inability to act or disqualification of any director, the Board of Directors,
although less than a quorum, shall have the right to elect the successor who
shall hold office for the remainder of the full term of the class of directors
in which the vacancy occurred, and until such director's successor shall have
been duly elected and qualified.
Section 9. Organization Meeting. The Board of Directors at its first
meeting after its election by the stockholders shall appoint an Executive
Committee, an Audit Committee, a Compensation Committee and a Nominating and
Corporate Governance Committee, and shall elect from its own members a Chairman
of the Board, a Chief Executive Officer and a President, who may be the same
person. The Board of Directors shall also elect at such meeting a Secretary and
a Chief Financial Officer, who may be the same person, and may appoint at any
time such committees as it may deem advisable. The Board of Directors may also
elect at such meeting one or more Associate Directors. The Board of Directors,
the Executive Committee or another committee designated by the Board of
Directors may elect or appoint such other officers as they may deem advisable.
Section 10. Removal. The Board of Directors may at any time remove, with
or without cause, any member of any committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 11. Responsibility of Officers. The Board of Directors may
designate an officer to be in charge of such departments or divisions of the
Company as it may deem advisable.
2
Section 12. Participation in Meetings. The Board of Directors or any
committee of the Board of Directors may participate in a meeting of the Board of
Directors or such committee, as the case may be, by conference telephone, video
facilities or other communications equipment. Any action required or permitted
to be taken at any meeting of the Board of Directors or any committee thereof
may be taken without a meeting if all of the members of the Board of Directors
or the committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of the Board of Directors or such
committee.
ARTICLE 3
COMMITTEES OF THE BOARD OF DIRECTORS
Section 1. Executive Committee.
(A) The Executive Committee shall be composed of not more than nine
(9) members, who shall be selected by the Board of Directors from its own
members, and who shall hold office at the pleasure of the Board of Directors.
(B) The Executive Committee shall have and may exercise, to the
fullest extent permitted by law, all of the powers of the Board of Directors
when it is not in session to transact all business for and on behalf of the
Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or the
President. The majority of its members shall be necessary to constitute a quorum
for the transaction of business. Special meetings of the Executive Committee may
be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) In the event of an emergency of sufficient severity to prevent
the conduct and management of the affairs and business of the Company by its
directors and officers as contemplated by these Bylaws, any two available
members of the Executive Committee as constituted immediately prior to such
emergency shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article 3 of these Bylaws. In the event of the unavailability, at
such time, of a minimum of two members of the Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This Bylaw shall be subject to
implementation by resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
Bylaws (other than this Section) and any resolutions which are contrary
3
to the provisions of this Section or to the provisions of any such implementing
resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this Section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these Bylaws.
Section 2. Audit Committee.
(A) The Audit Committee shall be composed of not more than five (5)
members, who shall be selected by the Board of Directors from its own members,
none of whom shall be an officer or employee of the Company, and shall hold
office at the pleasure of the Board.
(B) The Audit Committee shall have general supervision over the
Audit Services Division in all matters however subject to the approval of the
Board of Directors; it shall consider all matters brought to its attention by
the officer in charge of the Audit Services Division, review all reports of
examination of the Company made by any governmental agency or such independent
auditor employed for that purpose, and make such recommendations to the Board of
Directors with respect thereto or with respect to any other matters pertaining
to auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever its
Chairperson, the Chairman of the Board, the Chief Executive Officer, the
President or a majority of the Committee's members shall deem it to be proper
for the transaction of its business. A majority of the Committee's members shall
constitute a quorum for the transaction of business. The acts of the majority at
a meeting at which a quorum is present shall constitute action by the Committee.
Section 3. Compensation Committee.
(A) The Compensation Committee shall be composed of not more than
five (5) members, who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer or employee of the Company, and shall
hold office at the pleasure of the Board of Directors.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning compensation, including salaries and employee
benefits.
(C) The Compensation Committee shall meet whenever and wherever its
Chairperson, the Chairman of the Board, the Chief Executive Officer, the
President or a majority of the Committee's members shall deem it to be proper
for the transaction of its business. A majority of the Committee's members shall
constitute a quorum for the transaction of business. The acts of the majority at
a meeting at which a quorum is present shall constitute action by the Committee.
4
SECTION 4. NOMINATING AND CORPORATE GOVERNANCE COMMITTEE.
(A) The Nominating and Corporate Governance Committee shall be
composed of not more than five members, who shall be selected by the Board of
Directors from its own members, none of whom shall be an officer or employee of
the Company, and shall hold office at the pleasure of the Board of Directors.
(B) The Nominating and Corporate Governance Committee shall provide
counsel and make recommendations to the Chairman of the Board and the full Board
with respect to the performance of the Chairman of the Board and the Chief
Executive Officer, candidates for membership on the Board of Directors and its
committees, matters of corporate governance, succession planning for the
Company's executive management and significant shareholder relations issues.
(C) The Nominating and Corporate Governance Committee shall meet
whenever and wherever its Chairperson, the Chairman of the Board, the Chief
Executive Officer, the President, or a majority of the Committee's members shall
deem it to be proper for the transaction of its business. A majority of the
Committee's members shall constitute a quorum for the transaction of business.
The acts of the majority at a meeting at which a quorum is present shall
constitute action by the Committee.
Section 5. Other Committees. The Company may have such other committees
with such powers as the Board may designate from time to time by resolution or
by an amendment to these Bylaws.
Section 6. Associate Directors.
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve at the pleasure of the
Board of Directors.
(B) Associate directors shall be entitled to attend all meetings of
directors and participate in the discussion of all matters brought to the Board
of Directors, but will not have a right to vote.
Section 7. Absence or Disqualification of Any Member of a Committee. In
the absence or disqualification of any member of any committee created under
Article III of these Bylaws, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member.
5
ARTICLE 4
OFFICERS
Section 1. Chairman of the Board. The Chairman of the Board shall preside
at all meetings of the Board of Directors and shall have such further authority
and powers and shall perform such duties the Board of Directors may assign to
him from time to time.
Section 2. Chief Executive Officer. The Chief Executive Officer shall have
the powers and duties pertaining to the office of Chief Executive Officer
conferred or imposed upon him by statute, incident to his office or as the Board
of Directors may assign to him from time to time. In the absence of the Chairman
of the Board, the Chief Executive Officer shall have the powers and duties of
the Chairman of the Board.
Section 3. President. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon him by
statute, incident to his office or as the Board of Directors may assign to him
from time to time. In the absence of the Chairman of the Board and the Chief
Executive Officer, the President shall have the powers and duties of the
Chairman of the Board.
Section 4. Duties. The Chairman of the Board, the Chief Executive Officer
or the President, as designated by the Board of Directors, shall carry into
effect all legal directions of the Executive Committee and of the Board of
Directors and shall at all times exercise general supervision over the interest,
affairs and operations of the Company and perform all duties incident to his
office.
Section 5. Vice Presidents. There may be one or more Vice Presidents,
however denominated by the Board of Directors, who may at any time perform all
of the duties of the Chairman of the Board, the Chief Executive Officer and/or
the President and such other powers and duties incident to their respective
offices or as the Board of Directors, the Executive Committee, the Chairman of
the Board, the Chief Executive Officer or the President or the officer in charge
of the department or division to which they are assigned may assign to them from
time to time.
Section 6. Secretary. The Secretary shall attend to the giving of notice
of meetings of the stockholders and the Board of Directors, as well as the
committees thereof, to the keeping of accurate minutes of all such meetings,
recording the same in the minute books of the Company and in general notifying
the Board of Directors of material matters affecting the Company on a timely
basis. In addition to the other notice requirements of these Bylaws and as may
be practicable under the circumstances, all such notices shall be in writing and
mailed well in advance of the scheduled date of any such meeting. He shall have
custody of the corporate seal, affix the same to any documents requiring such
corporate seal, attest the same and perform other duties incident to his office.
Section 7. Chief Financial Officer. The Chief Financial Officer shall have
general supervision over all assets and liabilities of the Company. He shall be
custodian of and responsible for all monies, funds and valuables of the Company
and for the keeping of proper records of the evidence of property or
indebtedness and of all transactions of the Company. He shall have general
supervision of the expenditures of the Company and periodically shall report to
the Board of Directors the condition of the Company, and perform such other
duties incident to his office or as the
6
Board of Directors, the Executive Committee, the Chairman of the Board, the
Chief Executive Officer or the President may assign to him from time to time.
Section 8. Controller. There may be a Controller who shall exercise
general supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors or the Audit Committee at
appropriate times a report relating to the general condition and internal
operations of the Company and perform other duties incident to his office.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. Audit Officers. The officer designated by the Board of
Directors to be in charge of the Audit Services Division of the Company, with
such title as the Board of Directors shall prescribe, shall report to and be
directly responsible to the Audit Committee and the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Services
Division.
Section 10. Other Officers. There may be one or more officers, subordinate
in rank to all Vice Presidents with such functional titles as shall be
determined from time to time by the Board of Directors, who shall ex officio
hold the office of Assistant Secretary of the Company and who may perform such
duties as may be prescribed by the officer in charge of the department or
division to which they are assigned.
Section 11. Powers and Duties of Other Officers. The powers and duties of
all other officers of the Company shall be those usually pertaining to their
respective offices, subject to the direction of the Board of Directors, the
Executive Committee, the Chairman of the Board, the Chief Executive Officer or
the President and the officer in charge of the department or division to which
they are assigned.
Section 12. Number of Offices. Any one or more offices of the Company may
be held by the same person, except that (A) no individual may hold more than one
of the offices of Chief Financial Officer, Controller or Audit Officer and (B)
none of the Chairman of the Board, the Chief Executive Officer or the President
may hold any office mentioned in Section 12(A).
7
ARTICLE 5
STOCK AND STOCK CERTIFICATES
Section 1. Transfer. Shares of stock shall be transferable on the books of
the Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificates. Every holder of stock shall be entitled to have a
certificate signed by or in the name of the Company by the Chairman of the
Board, the Chief Executive Officer or the President or a Vice President, and by
the Secretary or an Assistant Secretary, of the Company, certifying the number
of shares owned by him in the Company. The corporate seal affixed thereto, and
any of or all the signatures on the certificate, may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Company with the same effect as if he were such officer, transfer agent
or registrar at the date of issue. Duplicate certificates of stock shall be
issued only upon giving such security as may be satisfactory to the Board of
Directors or the Executive Committee.
Section 3. Record Date. The Board of Directors is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment of
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days preceding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
ARTICLE 6
SEAL
The corporate seal of the Company shall be in the following form:
Between two concentric circles the words "Wilmington Trust Company"
within the inner circle the words "Wilmington, Delaware."
ARTICLE 7
FISCAL YEAR
The fiscal year of the Company shall be the calendar year.
8
ARTICLE 8
EXECUTION OF INSTRUMENTS OF THE COMPANY
The Chairman of the Board, the Chief Executive Officer, the President or
any Vice President, however denominated by the Board of Directors, shall have
full power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power and
authority to attest and affix the corporate seal of the Company to any and all
deeds, conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE 9
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Directors and associate directors of the Company, other than salaried
officers of the Company, shall be paid such reasonable honoraria or fees for
attending meetings of the Board of Directors as the Board of Directors may from
time to time determine. Directors and associate directors who serve as members
of committees, other than salaried employees of the Company, shall be paid such
reasonable honoraria or fees for services as members of committees as the Board
of Directors shall from time to time determine and directors and associate
directors may be authorized by the Company to perform such special services as
the Board of Directors may from time to time determine in accordance with any
guidelines the Board of Directors may adopt for such services, and shall be paid
for such special services so performed reasonable compensation as may be
determined by the Board of Directors.
ARTICLE 10
INDEMNIFICATION
Section 1. Persons Covered. The Company shall indemnify and hold harmless,
to the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director of the Company or is or was serving at the request of the Company as
a director, officer, employee, fiduciary or agent of another corporation,
partnership, limited liability company, joint venture, trust, enterprise or
non-profit entity that is not a subsidiary or affiliate of the Company,
including service with respect to employee benefit plans, against all liability
and loss suffered and expenses reasonably incurred by such person. The Company
shall be required to indemnify such a person in connection with a proceeding
initiated by such person only if the proceeding was authorized by the Board of
Directors.
9
The Company may indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or may hereafter be amended,
any person who was or is made or threatened to be made a party or is otherwise
involved in any proceeding by reason of the fact that he, or a person for whom
he is the legal representative, is or was an officer, employee or agent of the
Company or a director, officer, employee or agent of a subsidiary or affiliate
of the Company, against all liability and loss suffered and expenses reasonably
incurred by such person. The Company may indemnify any such person in connection
with a proceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the Board of Directors.
Section 2. Advance of Expenses. The Company shall pay the expenses
incurred in defending any proceeding involving a person who is or may be
indemnified pursuant to Section 1 in advance of its final disposition, provided,
however, that the payment of expenses incurred by such a person in advance of
the final disposition of the proceeding shall be made only upon receipt of an
undertaking by that person to repay all amounts advanced if it should be
ultimately determined that the person is not entitled to be indemnified under
this Article 10 or otherwise.
Section 3. Certain Rights. If a claim under this Article 10 for (A)
payment of expenses or (B) indemnification by a director or person who is or was
serving at the request of the Company as a director, officer, employee,
fiduciary or agent of another corporation, partnership, limited liability
company, joint venture, trust, enterprise or nonprofit entity that is not a
subsidiary or affiliate of the Company, including service with respect to
employee benefit plans, is not paid in full within sixty days after a written
claim therefor has been received by the Company, the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action, the Company shall have the burden of proving that the claimant was not
entitled to the requested indemnification or payment of expenses under
applicable law.
Section 4. Non-Exclusive. The rights conferred on any person by this
Article 10 shall not be exclusive of any other rights which such person may have
or hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 5. Reduction of Amount. The Company's obligation, if any, to
indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise or nonprofit entity shall be reduced by any amount such person
may collect as indemnification from such other corporation, partnership, joint
venture, trust, enterprise or nonprofit entity.
Section 6. Effect of Modification. Any amendment, repeal or modification
of the foregoing provisions of this Article 10 shall not adversely affect any
right or protection hereunder of any person in respect of any act or omission
occurring prior to the time of such amendment, repeal or modification.
10
ARTICLE 11
AMENDMENTS TO THE BYLAWS
These Bylaws may be altered, amended or repealed, in whole or in part, and
any new Bylaw or Bylaws adopted at any regular or special meeting of the Board
of Directors by a vote of a majority of all the members of the Board of
Directors then in office.
ARTICLE 12
MISCELLANEOUS
Whenever used in these Bylaws, the singular shall include the plural, the
plural shall include the singular unless the context requires otherwise and the
use of either gender shall include both genders.
11
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: June 25, 2004 By: /s/ Denise M. Geran
-------------------------------
Name: Denise M. Geran
Title: Vice President
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EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and
savings banks with state publication requirements. It has not
been approved by any state banking authorities. Refer to your
appropriate state banking authorities for your state
publication requirements.
REPORT OF CONDITION
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
----------------------------------------- ------------------
Name of Bank City
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in the State of DELAWARE, at the close of business on March 31, 2004.
Thousands of dollars
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............................. 173,842
Interest-bearing balances....................................................... 0
Held-to-maturity securities.............................................................. 3,355
Available-for-sale securities............................................................ 1,624,384
Federal funds sold in domestic offices................................................... 485,666
Securities purchased under agreements to resell.......................................... 13,700
Loans and lease financing receivables:
Loans and leases held for sale................. 0
Loans and leases, net of unearned income....... 5,839,156
LESS: Allowance for loan and lease losses..... 80,750
Loans and leases, net of unearned income, allowance, and reserve................ 5,758,406
Assets held in trading accounts.......................................................... 0
Premises and fixed assets (including capitalized leases)................................. 141,663
Other real estate owned.................................................................. 1,061
Investments in unconsolidated subsidiaries and associated companies...................... 1,755
Customers' liability to this bank on acceptances outstanding............................. 0
Intangible assets:
a. Goodwill.................................................................... 157
b. Other intangible assets..................................................... 11,615
Other assets............................................................................. 151,998
Total assets............................................................................. 8,367,602
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LIABILITIES
Deposits:
In domestic offices....................................................................................... 6,716,153
Noninterest-bearing............................. 1,056,474
Interest-bearing................................ 5,659,679
Federal funds purchased in domestic offices............................................................... 79,544
Securities sold under agreements to repurchase............................................................ 190,877
Trading liabilities (from Schedule RC-D).................................................................. 0
Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases:............ 596,427
Bank's liability on acceptances executed and outstanding.................................................. 0
Subordinated notes and debentures......................................................................... 0
Other liabilities (from Schedule RC-G).................................................................... 116,370
Total liabilities......................................................................................... 7,699,371
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................................................. 0
Common Stock.............................................................................................. 500
Surplus (exclude all surplus related to preferred stock).................................................. 112,358
a. Retained earnings..................................................................................... 565,939
b. Accumulated other comprehensive income................................................................ (10,566)
Total equity capital...................................................................................... 668,231
Total liabilities, limited-life preferred stock, and equity capital....................................... 8,367,602
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