EXHIBIT 10.1
EXECUTION COPY
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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
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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
Sellers Relating to the Sellers
and the Agreement...................................... 5
Section 2.3. Representations and Warranties of the
Sellers Relating to the Receivables8
Section 2.4. Addition of Accounts.......................................... 9
Section 2.5. Covenants of the Sellers...................................... 12
Section 2.6. Removal of Eligible Accounts.................................. 13
Section 2.7. Removal of Ineligible Accounts................................ 15
Section 2.8. Sale of Ineligible Receivables................................ 16
ARTICLE III
Administration and Servicing of Receivables
Section 3.1. Acceptance of Appointment and Other
Matters Relating to the Servicer....................... 16
Section 3.2. Servicing Compensation........................................ 17
ARTICLE IV
Rights of Certificateholders and
Allocation and Application of Collections
Section 4.1. Allocations and Applications of Collections
and Other Funds........................................ 17
ARTICLE V
Other Matters Relating to the Sellers
Section 5.1. Merger or Consolidation of, or Assumption of,
the Obligations of the Sellers......................... 17
Section 5.2. Sellers' Indemnification of the Buyer......................... 18
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ARTICLE VI
Termination......................................... 18
ARTICLE VII
Miscellaneous Provisions
Section 7.1. Amendment......................................................... 19
Section 7.2. Protection of Right, Title and
Interest to Receivables.................................... 20
Section 7.3. Limited Recourse.................................................. 21
Section 7.4. No Petition....................................................... 21
Section 7.5. GOVERNING LAW..................................................... 22
Section 7.6. Notices........................................................... 22
Section 7.7. Severability of Provisions........................................ 22
Section 7.8. Assignment........................................................ 22
Section 7.9. Further Assurances................................................ 22
Section 7.10. No Waiver; Cumulative Remedies.................................... 22
Section 7.11. Counterparts...................................................... 23
Section 7.12. Third-Party Beneficiaries......................................... 23
Section 7.13. Merger and Integration............................................ 23
Section 7.14. Headings.......................................................... 23
Section 7.15. Continued Effectiveness of the
Receivables Contribution and
Sale Agreement............................................. 23
Section 7.16. Submission to Jurisdiction........................................ 23
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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
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Section 1.1. Definitions. Capitalized terms used herein but not otherwise
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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",
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"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
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Section 2.1. Conveyance of Receivables. By execution of this Agreement,
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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
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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
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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.
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
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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).
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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 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
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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
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the Sellers and the Agreement. Each Seller hereby represents and warrants to the
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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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
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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
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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 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 Xxxx 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).
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Section 2.3. Representations and Warranties of the Sellers Relating to
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the Receivables.
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(a) Representations and Warranties. Each Seller hereby represents and
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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.
(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
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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
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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
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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
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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 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
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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
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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")
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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
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Notice") on or before the fifth Business Day but not more than the 30th day
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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
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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
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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) (A) 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
-11-
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 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
-12-
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 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).
-13-
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 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
-14-
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
-15-
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 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.
-16-
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.
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.
-17-
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.
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
-18-
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.
(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
-19-
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 such recording, registration or filing. The Buyer shall cooperate
fully with the Sellers in connection with the obligations
-20-
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,
-21-
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.
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: 000 Xxxxxxxxx
Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, 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
-22-
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.
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;
(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;
-23-
(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 xxx in
any other jurisdiction.
-24-
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/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Title: President and Treasurer
-------------------------------
By: /s/ Naran Burchinow
---------------------------------------
Name: Naran Burchinow
---------------------------------
Title: Vice President and Assistant
Secretary
-------------------------------
DEUTSCHE FINANCIAL SERVICES
CORPORATION, Seller
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Title: Senior Vice President and
Treasurer
-------------------------------
By: /s/ Naran Burchinow
---------------------------------------
Name: Naran Burchinow
---------------------------------
Title: Senior Vice President, General
Counsel and Secretary
-------------------------------
DEUTSCHE BUSINESS SERVICES
CORPORATION, Seller
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Title: Senior Vice President
-------------------------------
By: /s/ Naran Burchinow
---------------------------------------
Name: Naran Burchinow
---------------------------------
Title: Vice President and Secretary
-------------------------------
-25-
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
A-1
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
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
A-2
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:
(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;
A-3
(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;
(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
A-4
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
A-5
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:
(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-6
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-7
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, ________________.
C-1
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.
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
C-2
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 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
C-3
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 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.
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:
C-4
[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.]
