EXHIBIT 10.1
TRANSFER AND SERVICING AGREEMENT
among
DISTRIBUTION FINANCIAL SERVICES [RV/BOAT] TRUST 199_ -_,
as Issuer,
DEUTSCHE RECREATIONAL ASSET FUNDING CORPORATION,
as Depositor
and
DEUTSCHE FINANCIAL SERVICES CORPORATION,
as Servicer
Dated as of __________, 199_
TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Definitions..................................................... 1
SECTION 1.02. Other Definitional Provisions................................... 1
ARTICLE II
Contribution of Receivables
SECTION 2.01. Contribution.................................................... 2
SECTION 2.02. Intent of the Parties........................................... 2
ARTICLE III
The Receivables
SECTION 3.01. Representations and Warranties with Respect to the Receivables.. 3
SECTION 3.02. Custody of Receivable Files..................................... 5
SECTION 3.03. Duties of Servicer as Custodian................................. 5
SECTION 3.04. Instructions; Authority To Act.................................. 6
SECTION 3.05. Custodian's Indemnification..................................... 6
SECTION 3.06. Effective Period and Termination................................ 6
ARTICLE IV
Administration and Servicing of Receivables
SECTION 4.01. Duties of Servicer.............................................. 7
SECTION 4.02. Collection and Allocation of Receivable Payments................ 8
SECTION 4.03. Realization upon Receivables.................................... 8
SECTION 4.04. Physical Damage Insurance....................................... 8
SECTION 4.05. Maintenance of Security Interests in Financed Vehicles.......... 9
SECTION 4.06. Covenants of Servicer........................................... 9
SECTION 4.07. Purchase of Receivables upon Breach............................. 9
SECTION 4.08. Servicing Fee................................................... 9
SECTION 4.09. Servicer's Certificate..........................................10
SECTION 4.10. Annual Statement as to Compliance; Notice of Default............10
SECTION 4.11. Annual Independent Certified Public Accountants' Report.........10
i
SECTION 4.12. Access to Certain Documentation and Information
Regarding Receivables.......................................... 11
SECTION 4.13. Servicer Expenses.............................................. 11
SECTION 4.14. Appointment of Subservicer..................................... 11
SECTION 4.15. Fidelity Bond; Errors and Omissions Insurance.................. 12
ARTICLE V
Distributions; Statements to Noteholders and Certificateholders
SECTION 5.01. Establishment of Trust Accounts................................ 12
SECTION 5.02. Collections.................................................... 15
SECTION 5.03. Application of Collections..................................... 15
SECTION 5.04. Advances....................................................... 16
SECTION 5.05. Additional Deposits............................................ 16
SECTION 5.06. Distributions.................................................. 16
SECTION 5.07. Reserve Account................................................ 18
SECTION 5.08. Statements to Noteholders and Certificateholders............... 18
ARTICLE VI
The Depositor
SECTION 6.01. Representations of Depositor................................... 19
SECTION 6.02. Corporate Existence............................................ 20
SECTION 6.03. Liability of the Depositor..................................... 21
SECTION 6.04. Indemnification................................................ 21
SECTION 6.05. Merger or Consolidation of, or Assumption of the
Obligations of, Depositor...................................... 22
SECTION 6.06. Limitation on Liability of Depositor and Others................ 22
SECTION 6.07. Depositor May Own Notes and Certificates....................... 23
SECTION 6.08. Pennsylvania Motor Vehicle Sales Finance Act License........... 23
ARTICLE VII
The Servicer
SECTION 7.01. Representations and Warranties of the Servicer................. 23
SECTION 7.02. Indemnities, etc. of Servicer.................................. 24
SECTION 7.03. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer....................................... 25
SECTION 7.04. Limitation on Liability of Servicer and Others................. 26
SECTION 7.05. DFS Not To Resign as Servicer.................................. 26
ii
ARTICLE VIII
Servicer Default
SECTION 8.01. Servicer Default..................................................27
SECTION 8.02. Appointment of Successor..........................................28
SECTION 8.03. Repayment of Advances.............................................29
SECTION 8.04. Notification to Noteholders.......................................29
SECTION 8.05. Waiver of Past Defaults...........................................29
ARTICLE IX
Termination
SECTION 9.01. Optional Purchase of All Receivables..............................29
ARTICLE X
Miscellaneous
SECTION 10.01. Amendment.........................................................31
SECTION 10.02. Protection of Title to Trust; Change of Name, Identity,
Corporate Structure or Location of the Depositor, Etc.............32
SECTION 10.03. Notices...........................................................34
SECTION 10.04. Assignment........................................................34
SECTION 10.05. Limitations on Rights of Others...................................34
SECTION 10.06. Severability......................................................34
SECTION 10.07. Separate Counterparts.............................................34
SECTION 10.08. Headings..........................................................35
SECTION 10.09. Governing Law; Submission to Jurisdiction.........................35
SECTION 10.10. Nonpetition Covenants.............................................35
SECTION 10.11. Limitation of Liability of Owner Trustee and Indenture Trustee....35
SECTION 10.12. Waiver............................................................36
SECTION 10.13. Separate Corporate Existence......................................36
APPENDIX A Definitions (Section 1.01)
SCHEDULE A Schedule of Receivables (Sections 3.01(viii), 3.02(a)(viii))
SCHEDULE B Location of the Receivable Files (Section 3.03(b))
EXHIBIT A-1 Form of Distribution Statement to Noteholders (Section 5.08)
EXHIBIT A-2 Form of Distribution Statement to Certificateholders
(Section 5.08)
EXHIBIT B Form of Servicer's Certificate (Section 4.09)
EXHIBIT C Final Certification of Custodian (Section 3.02)
EXHIBIT D DFS/Ganis Transfer Agreement
iii
EXHIBIT E Ganis/Depositor Transfer Agreement
||
iv
TRANSFER AND SERVICING AGREEMENT dated as of ___________], 199_ (this
"Agreement") among DISTRIBUTION FINANCIAL SERVICES [RV/BOAT] TRUST 199_-_, a
[ ] trust (the "Issuer"), DEUTSCHE RECREATIONAL ASSET FUNDING
CORPORATION, a Nevada corporation, as Depositor (the "Depositor"), and DEUTSCHE
FINANCIAL SERVICES CORPORATION, a Nevada corporation ("DFS"), as Servicer.
WHEREAS, the Issuer desires to acquire a portfolio of receivables from the
Depositor arising in connection with recreational vehicle retail installment
sale contracts and loan contracts;
WHEREAS, the Depositor is willing to contribute such receivables to the
Issuer, and
WHEREAS, the Depositor acquired such receivables from the Transferor
pursuant to the Ganis/Depositor Transfer Agreement, and the Transferor acquired
certain of such receivables from DFS pursuant to the DFS/Ganis Transfer
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01. Definitions. Except as otherwise specified herein or as the
context may otherwise require, capitalized terms used herein have the respective
meanings assigned thereto in Appendix A for all purposes of this Agreement.
SECTION 1.02. Other Definitional Provisions.
(a) All terms defined in Appendix A attached hereto shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document to
the extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles. To the extent that the definitions of
accounting terms in this Agreement or in any such certificate or other document
are inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in any
such certificate or other document shall control.
(c) The words "hereof", "herein", "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 contained in this Agreement are references to Articles,
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; and the term "including" shall mean "including without limitation".
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, amended and
restated or otherwise modified and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments incorporated
therein; references to a Person are also to its permitted successors and
assigns.
(f) Each reference to the "close of business" on a particular day shall
mean 5:00 p.m. Pacific Time on such day.
ARTICLE II
Contribution of Receivables
---------------------------
SECTION 2.01. Contribution. The Depositor does hereby transfer, assign, set
over and otherwise convey to the Issuer, as a capital contribution, without
recourse (subject to the obligations of the Depositor set forth herein), all
right, title and interest of the Depositor in, to and under (but none of the
obligations of the Depositor under):
(a) the Receivables, the DFS/Ganis Transfer Agreement and the other
Transferor Conveyed Property;
(b) the Ganis/Depositor Transfer Agreement; and
(c) the proceeds of any and all of the foregoing.
The Receivables and other items covered by clauses (a)-(c) of this Section
2.01 shall be referred to collectively as the "Depositor Conveyed Property".
SECTION 2.02. Intent of the Parties.
(a) The Depositor and the Issuer intend that the conveyance by the
Depositor to the Issuer of the right, title and interest of the Depositor in, to
and under the Receivables and the other Depositor Conveyed Property pursuant to
this Agreement shall constitute a capital
2
contribution and not a loan. However, in the event that, notwithstanding the
intent of the parties, such conveyance is deemed to be a transfer for security
and not a capital contribution, then (i) the Depositor shall be deemed to have
granted, and in such event does hereby grant, to the Issuer a first priority
security interest in all of its right, title and interest in, to and under the
Depositor Conveyed Property, and (ii) this Agreement shall constitute a security
agreement under applicable law with respect to such conveyance. If such
conveyance is deemed to be a transfer for security and not a capital
contribution, the Depositor consents to the Issuer hypothecating and
transferring such security interest in favor of any assignee or assignees and
transferring the obligations secured thereby to such assignee or assignees.
(b) No party hereto shall take any action that is inconsistent with the
ownership of the Depositor Conveyed Property by the Issuer, and each party
hereto shall inform any Person inquiring about the Receivables that the Issuer
owns the Depositor Conveyed Property. Without limiting the generality of the
foregoing, for accounting, tax and other purposes the Depositor and the Issuer
shall treat the transfer of the Depositor Conveyed Property by the Depositor to
the Issuer as a capital contribution by the Depositor to the Issuer.
Notwithstanding any other provision of this Agreement, no party hereto shall
have any recourse to DFS, the Transferor, the Depositor or the Servicer on
account of the financial inability of any Obligor to make payments in respect of
a Receivable.
ARTICLE III
The Receivables
---------------
SECTION 3.01 Representations and Warranties with Respect to the
Receivables. DFS has made the representations and warranties set forth in
Section 3.01 of the DFS/Ganis Transfer Agreement, and has consented to the
assignment by the Transferor to the Depositor and by the Depositor to the Issuer
of the Transferor's rights with respect thereto. The Transferor has made the
representations and warranties set forth in Section 3.01 of the Ganis/Depositor
Transfer Agreement, and has consented to the assignment by the Depositor to the
Issuer of the Depositor's rights with respect thereto. Pursuant to Section 2.01
of this Agreement, the Depositor has transferred to the Issuer all of the
Depositor's right, title and interest in, to and under the DFS/Ganis Transfer
Agreement and the Ganis/Depositor Transfer Agreement, which shall be understood
to include the representations and warranties of DFS and the Transferor therein,
upon which the Issuer relies in accepting the Receivables, together with all
rights of the Depositor with respect to any breach thereof, including the right
to require DFS or the Transferor, as the case may be, to purchase Receivables in
accordance with the DFS/Ganis Transfer Agreement or the Ganis/Depositor
Transferor Agreement, as the case may be.
The Depositor makes the following representations and warranties as to the
Receivables on which the Issuer is deemed to have relied in acquiring the
Receivables. Such representations and warranties speak as of the execution and
delivery of this Agreement and as of the Closing Date, but shall survive the
transfer and assignment of the Receivables to the Issuer and the pledge thereof
to the Indenture Trustee pursuant to the Indenture.
3
(a) Title. No Receivable has been sold, transferred, assigned or pledged
by the Depositor to any Person other than the Issuer. Immediately prior to the
transfer and assignment by the Depositor to the Issuer, the Depositor had good
and marketable title to each Receivable, free and clear of all Liens and rights
of others and, immediately upon the transfer thereof, the Issuer shall have good
and marketable title to each Receivable, free and clear of all Liens and rights
of others; and such transfer has been perfected under the UCC.
(b) All Filings Made. All filings (including UCC filings) necessary in any
jurisdiction to give (i) the Issuer a first perfected ownership interest in the
Receivables and (ii) the Indenture Trustee a first perfected security interest
in the Receivables have been made.
Upon discovery by any party hereto of a breach of any of the
representations and warranties of the Depositor set forth in this Section, of
the Transferor set forth in Section 3.01 of the Ganis/Depositor Transfer
Agreement or of DFS set forth in Section 3.01 of the DFS/Ganis Transfer
Agreement, in each case which materially and adversely affects the value of the
Receivables or the interest therein of the Issuer or the Indenture Trustee (or
which materially and adversely affects the interest of the Issuer or the
Indenture Trustee in the related Receivable in the case of a representation and
warranty relating to a particular Receivable), the party discovering such breach
shall give prompt written notice to the other parties hereto. On the last day of
the Collection Period following the Collection Period during which the Depositor
discovers or receives notice of any such breach of any such representation or
warranty, if such breach shall not have been cured in all material respects by
such last day, then the Depositor shall purchase (and, if applicable, the
Depositor shall enforce the obligation of DFS, under the DFS/Ganis Transfer
Agreement, or Ganis, under the Ganis/Depositor Transfer Agreement, to purchase)
such Receivable from the Issuer as of such last day at a price equal to the
Purchase Amount of such Receivable, which price the Depositor shall remit in the
manner specified in Section 5.05; provided, however, that the obligation of the
Depositor to purchase any Receivable that arises solely as a result of a breach
of the representations and warranties of DFS or the Transferor under the
DFS/Ganis Transfer Agreement or the Ganis/Depositor Agreement, as the case may
be, is subject to the payment of the Purchase Amount by DFS or the Transferor in
accordance with the DFS/Ganis Transfer Agreement or the Ganis/Depositor Transfer
Agreement, as the case may be. Subject to the indemnification provisions
contained in the last paragraph of this Section, the sole remedy of the Issuer,
the Owner Trustee or the Indenture Trustee with respect to a breach of
representations and warranties of the Depositor set forth in this Section shall
be to require the Depositor to purchase Receivables pursuant to this Section,
subject to the conditions contained herein; provided that this Section shall not
limit the right of any party hereto to enforce (or to cause the Depositor to
enforce) the obligation of DFS or the Transferor to purchase Receivables
pursuant to the DFS/Ganis Transfer Agreement or the Ganis/Depositor Transfer
Agreement, as the case may be.
The Depositor shall indemnify the Issuer, the Owner Trustee and the
Indenture Trustee and hold each harmless against any loss, damages, penalties,
fines, forfeitures, legal fees and related costs, judgments, and other costs and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Depositor's
4
representations and warranties contained in this Agreement; provided that the
Depositor shall not be liable for any indirect damages or for any loss, damage,
penalty, fine, forfeiture, legal fees and related costs, judgments and other
costs and expenses caused by the wilful misconduct of the Issuer, the Owner
Trustee or the Indenture Trustee.
SECTION 3.02. Custody of Receivable Files. To assure uniform quality in
servicing the Receivables and to reduce administrative costs, the Issuer hereby
revocably appoints the Servicer, and the Servicer hereby accepts such
appointment, to act for the benefit of the Issuer and the Indenture Trustee as
custodian of the following documents or instruments which are hereby or shall
hereby be constructively delivered to the Indenture Trustee, as pledgee of the
Issuer, as of the Closing Date with respect to each Receivable:
(a) the fully executed original Receivable;
(b) a fully executed assignment of the Receivable in blank or from the
related Dealer to DFS or the Transferor, as the case may be, if such Receivable
was acquired by DFS or the Transferor, as the case may be, from a Dealer.
(c) a certificate of physical damage insurance, application form for such
insurance signed by the Obligor or a signed representation letter from the
Obligor named in the Receivable pursuant to which the Obligor has agreed to
obtain physical damage insurance for the Financed Vehicle, or copies thereof;
(d) the Lien Certificate or application therefor or a certification from
the Servicer that it has received confirmation from an authorized official of
the appropriate governmental office of the existence of the first lien of DFS or
the Transferor with respect to the related Financed Vehicle; and
(e) a credit application signed by the Obligor, or a copy thereof.
Within 120 days after the Closing Date, the Servicer, as custodian, shall
ascertain whether all of the Receivable Files are in its possession, and shall
deliver to the Indenture Trustee a certification ("Final Certification")
substantially in the form attached hereto as Exhibit C hereto. During the term
of this Agreement, in the event the Servicer, as custodian, discovers any defect
with respect to the Receivable File, the Servicer, as custodian, shall give
written specification of such defect to the Indenture Trustee.
SECTION 3.03. Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer shall hold the Receivable Files as custodian
for the benefit of the Issuer and the Indenture Trustee and maintain such
accurate and complete accounts, records and computer systems pertaining to each
Receivable File as shall enable the Issuer to comply with this Agreement. In
performing its duties as custodian the Servicer shall act with reasonable care,
using that degree of skill and attention that the Servicer exercises with
5
respect to the receivable files relating to all comparable recreational vehicle
receivables that the Servicer services for itself or others. The Servicer shall
promptly report to the Issuer and the Indenture Trustee any failure on its part
to hold the Receivable Files and maintain its accounts, records and computer
systems as herein provided and shall promptly take appropriate action to remedy
any such failure.
(b) Maintenance of and Access to Records. The Servicer shall maintain each
Receivable File at one of its offices specified in Schedule B or at such other
office as shall be specified to the Issuer and the Indenture Trustee by written
notice not later than 90 days after any change in location. The Servicer shall
make available to the Issuer and the Indenture Trustee or their respective duly
authorized representatives, attorneys or auditors a list of locations of the
Receivable Files, and access to such Receivable Files and the related accounts,
records and computer systems maintained by the Servicer at such times during
normal business hours as the Issuer or the Indenture Trustee shall instruct.
Access to Receivable Files by Noteholders, Note Owners, Certificateholders and
Certificate Owners is covered by Section 4.12. Nothing in this Section shall
affect the obligation of the Servicer to observe any applicable law prohibiting
disclosure of information regarding the Obligors and the failure of the Servicer
to provide access to information as a result of such obligation shall not
constitute a breach of this Section.
(c) Release of Documents. Upon written instruction from the Indenture
Trustee, the Servicer shall release any Receivable File to the Indenture
Trustee, the Indenture Trustee's agent or the Indenture Trustee's designee, as
the case may be, at such place or places as the Indenture Trustee may designate,
as soon as practicable following the Servicer's receipt of such written
instruction.
SECTION 3.04 Instructions; Authority To Act. The Servicer shall be deemed
to have received proper instructions with respect to the Receivable Files upon
its receipt of written instructions signed by a Trust Officer of the Indenture
Trustee.
SECTION 3.05 Custodian's Indemnification. The Servicer as custodian shall
indemnify the Trust, the Owner Trustee and the Indenture Trustee and each of
their respective officers, directors, employees and agents for any and all
liabilities, obligations, losses, compensatory damages, payments, costs or
expenses of any kind whatsoever that may be imposed on, incurred by or asserted
against the Trust, the Owner Trustee or the Indenture Trustee or any of their
respective officers, directors, employees and agents as the result of any
improper act or omission in any way relating to the maintenance and custody of
the Receivable Files by the Servicer as custodian thereof; provided, however,
that the Servicer shall not be liable to the Owner Trustee for any portion of
any such amount resulting from the willful misfeasance, bad faith or negligence
of the Owner Trustee, and the Servicer shall not be liable to the Indenture
Trustee for any portion of any such amount resulting from the willful
misfeasance, bad faith or negligence of the Indenture Trustee.
SECTION 3.06 Effective Period and Termination. The Servicer's appointment
as custodian shall become effective as of the Cutoff Date and shall continue in
full force and effect
6
until terminated pursuant to this Section. If DFS shall resign as Servicer in
accordance with Article VII of this Agreement or if all of the rights and
obligations of any Servicer shall have been terminated pursuant to Section 8.01,
the appointment of such Servicer as custodian shall be terminated by the
Indenture Trustee or by the Holders of Notes evidencing not less than 25% of the
Outstanding Amount of the Notes or, if Notes have been paid in full, by the
Owner Trustee or by Holders of Certificates evidencing not less than 25% of the
Certificate Balance, in the same manner as the Indenture Trustee or such Holders
may terminate the rights and obligations of the Servicer under Section 8.01. The
Indenture Trustee or, with the consent of the Indenture Trustee, the Owner
Trustee may terminate the Servicer's appointment as custodian, with cause, at
any time upon written notification to the Servicer and, without cause, upon 30
days' prior written notification to the Servicer. As soon as practicable after
any termination of such appointment, the Servicer shall deliver the Receivable
Files to the Indenture Trustee or the Indenture Trustee's agent at such place or
places as the Indenture Trustee may reasonably designate.
ARTICLE IV
Administration and Servicing of Receivables
-------------------------------------------
SECTION 4.01 Duties of Servicer. The Servicer, for the benefit of the
Issuer (to the extent provided herein), shall manage, service, administer and
make collections on the Receivables (other than Purchased Receivables) with
reasonable care, using that degree of skill and attention that the Servicer
exercises with respect to all comparable recreational vehicle receivables that
it services for itself or others. The Servicer's duties shall include collection
and posting of all payments, responding to inquiries of Obligors on such
Receivables, investigating delinquencies, sending payment notifications to
Obligors, reporting tax information to Obligors, accounting for collections,
furnishing monthly and annual statements to the Owner Trustee and the Indenture
Trustee with respect to distributions and making Advances pursuant to Section
5.04. Subject to the provisions of Section 4.02, the Servicer shall follow its
customary standards, policies and procedures in performing its duties as
Servicer. Without limiting the generality of the foregoing, the Servicer is
authorized and empowered to execute and deliver, on behalf of itself, the
Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders, the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation, or partial or full release or discharge, and all other comparable
instruments, with respect to such Receivables or to the Financed Vehicles
securing such Receivables. If the Servicer shall commence a legal proceeding to
enforce a Receivable, the Issuer (in the case of a Receivable other than a
Purchased Receivable) shall thereupon be deemed to have automatically assigned,
solely for the purpose of collection, such Receivable to the Servicer. If in any
enforcement suit or legal proceeding it shall be held that the Servicer may not
enforce a Receivable on the grounds that it shall not be a real party in
interest or a holder entitled to enforce such Receivable, the Owner Trustee
shall, at the Servicer's expense and direction, take steps to enforce such
Receivable, including bringing suit in its name or the name of the Owner
Trustee, the Indenture Trustee, the Certificateholders or the Noteholders. The
Owner Trustee shall upon the written
7
request of the Servicer furnish the Servicer with any powers of attorney and
other documents reasonably necessary or appropriate to enable the Servicer to
carry out its servicing and administrative duties hereunder.
SECTION 4.02 Collection and Allocation of Receivable Payments. The Servicer
shall make reasonable efforts to collect all payments called for under the terms
and provisions of the Receivables as and when the same shall become due and
shall follow such collection procedures as it follows with respect to all
comparable recreational vehicle receivables that it services for itself or
others. The Servicer may allocate collections between principal and interest in
accordance with the customary servicing procedures it follows with respect to
all comparable recreational vehicle receivables that it services for itself or
others. The Servicer may grant extensions, rebates or adjustments on a
Receivable, which shall not, for the purposes of this Agreement, modify the
original due dates (except that DFS as Servicer may, for administrative
purposes, modify the due date of a Receivable to a different date in the same
month, which date shall be reflected in its servicing records) or amounts of the
originally scheduled payments of interest on Receivables; provided, however,
that if the Servicer extends the date for final payment by the Obligor of any
Receivable beyond the Final Scheduled Maturity Date, it shall promptly purchase
the Receivable from the Issuer in accordance with the terms of Section 4.07. The
Servicer may in its discretion waive any late payment charge or any other fees
that may be collected in the ordinary course of servicing a Receivable. The
Servicer shall not agree to any alteration of the originally scheduled payments
on any Receivable.
SECTION 4.03 Realization upon Receivables. On behalf of the Issuer, the
Servicer shall use its best efforts, consistent with its customary servicing
procedures, to repossess or otherwise convert the ownership of the Financed
Vehicles securing any Receivable as to which the Servicer shall have determined
eventual payment in full is unlikely. The Servicer shall follow such customary
and usual practices and procedures as it shall deem necessary or advisable in
its servicing of the Receivables, which may include reasonable efforts to
realize upon any recourse to Dealers and selling the Financed Vehicle at public
or private sale. The Servicer shall be entitled to reimbursement out of
recoveries on such Defaulted Receivable for its reasonable, out-of-pocket costs
and expenses incurred in realizing upon any Financed Vehicle securing any
Receivable that becomes a Defaulted Receivable or in attempting to repossess any
Financed Vehicle and in prosecuting legal action against any Obligor in respect
of any Receivable. The foregoing shall be subject to the provision that, in any
case in which the Financed Vehicle shall have suffered damage, the Servicer
shall not expend funds in connection with the repair or the repossession of such
Financed Vehicle unless it shall determine in its discretion that such repair
and/or repossession shall increase the Liquidation Proceeds by an amount greater
than the amount of its expenses in connection with such repair and/or
repossession.
SECTION 4.04 Physical Damage Insurance. The Servicer shall, in accordance
with its customary servicing procedures, require that each Obligor shall have
obtained physical damage insurance covering the Financed Vehicle as of the
execution of the Receivable.
8
SECTION 4.05 Maintenance of Security Interests in Financed Vehicles. The
Servicer shall, in accordance with its customary servicing procedures, take such
steps as are necessary to maintain perfection of the security interest created
by each Receivable in the related Financed Vehicle. The Servicer is hereby
authorized to take such steps as are necessary to re-perfect such security
interest on behalf of the Issuer and the Indenture Trustee in the event of the
relocation of a Financed Vehicle or for any other reason.
SECTION 4.06 Covenants of Servicer. The Servicer shall not release the
Financed Vehicle securing any Receivable from the security interest granted by
such Receivable in whole or in part (except in the event of payment in full by
the Obligor thereunder or repossession, or except as ordered by a court of
competent jurisdiction), nor shall the Servicer impair the rights of the Issuer,
the Indenture Trustee, the Certificateholders or the Noteholders in such
Receivable, nor shall the Servicer increase the number of scheduled payments due
under a Receivable.
SECTION 4.07 Purchase of Receivables upon Breach. The Servicer or the Owner
Trustee shall inform the other party and the Indenture Trustee and the Depositor
promptly, in writing, upon the discovery of any breach of the Servicer's
obligations under Section 4.02, 4.05 or 4.06. Unless the breach shall have been
cured by the last day of the second Collection Period following such discovery
(or, at the Servicer's election, the last day of the first following Collection
Period), the Servicer shall purchase any Receivable materially and adversely
affected by such breach as of such last day. If the Servicer takes any action
during any Collection Period pursuant to Section 4.02 that impairs the rights of
the Issuer, the Indenture Trustee, the Noteholders or the Certificateholders in
any Receivable or as otherwise provided in Section 4.02 [subject to exception
for reductions in interest rates], the Servicer shall purchase such Receivable
as of the close of business on the last day of such Collection Period. In
consideration of the purchase of any such Receivable pursuant to either of the
two preceding sentences, the Servicer shall remit the Purchase Amount in the
manner specified in Section 5.05. Subject to Section 7.02, the sole remedy of
the Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders or the
Certificateholders with respect to a breach pursuant to Section 4.02, 4.05 or
4.06 shall be to require the Servicer to purchase Receivables pursuant to this
Section. The Owner Trustee and the Indenture Trustee shall have no duty to
conduct any affirmative investigation as to the occurrence of any condition
requiring the purchase of any Receivable pursuant to this Section.
SECTION 4.08 Servicing Fee. The Servicing Fee for each Monthly Payment Date
shall equal the product of (a) one-twelfth, (b) the Servicing Fee Rate and (c)
the Pool Balance as of the first day of the preceding Collection Period. The
Servicer shall also be entitled to keep all late fees, prepayment charges and
other administrative fees or similar charges provided for under the Receivables
or allowed by applicable law, in each case, to the extent not prohibited by
applicable law, collected (from whatever source) on the Receivables, plus any
reimbursement pursuant to the last paragraph of Section 7.02 and plus investment
earnings on amounts on deposit in the Collection Account to the extent specified
in Section 5.01(b). [To follow: reference to additional compensation from
Servicing Suspense Account.]
9
SECTION 4.09 Servicer's Certificate. At least two Business Days prior to
each Determination Date the Servicer shall provide to the Indenture Trustee
sufficient information relating to the Receivables for the applicable Collection
Period to enable the Indenture Trustee to prepare Section VII of the Servicer's
Certificate. Not later than 11:00 A.M. (New York time) on each Determination
Date, the Servicer shall deliver to the Owner Trustee, each Paying Agent, the
Indenture Trustee and the Depositor, with a copy to the Rating Agencies, a
Servicer's Certificate containing all information necessary to make the
distributions to be made on the related Monthly Payment Date pursuant to
Sections 5.05 and 5.06 for the related Collection Period. Receivables to be
purchased by the Servicer, the Depositor, DFS or the Transferor shall be
identified by the Servicer by account number with respect to such Receivable (as
specified in Schedule A).
SECTION 4.10 Annual Statement as to Compliance; Notice of Default.
(a) The Servicer shall deliver to the Owner Trustee and the Indenture
Trustee, on or before March 31 of each year beginning in 199_, an Officer's
Certificate, dated as of December 31 of the preceding year, stating that (i) a
review of the activities of the Servicer during the preceding 12- month period
(or such shorter period as shall have elapsed since the Closing Date) and of its
performance under this Agreement has been made under the supervision of the
officers of the Servicer signing such Officer's Certificate and (ii) to the best
of such officers' knowledge, based on such review, the Servicer has fulfilled
all its obligations under this Agreement throughout such year or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officers and the nature and status thereof. The Indenture
Trustee shall send a copy of such certificate and the report referred to in
Section 4.11 to the Rating Agencies. A copy of such certificate and the report
referred to in Section 4.11 may be obtained by any Noteholder, Note Owner,
Certificateholder or Certificate Owner by a request in writing to the Owner
Trustee addressed to the Corporate Trust Office. Upon the telephone request of
the Owner Trustee, the Indenture Trustee shall promptly furnish the Owner
Trustee a list of Noteholders as of the date specified by the Owner Trustee.
(b) The Servicer shall deliver to the Owner Trustee, the Indenture Trustee
and the Rating Agencies, promptly after having obtained knowledge thereof, but
in no event later than five (5) Business Days thereafter, written notice in an
Officer's Certificate of any event which with the giving of notice or lapse of
time, or both, would become a Servicer Default under Section 8.01(a) or (b).
SECTION 4.11 Annual Independent Certified Public Accountants' Report. The
Servicer shall cause a firm of nationally recognized "independent certified
public accountants" (within the meaning of the Code of Professional Ethics of
the American Institute of Certified Public Accountants), which may also render
other services to the Servicer, the Depositor or their Affiliates, to deliver to
the Owner Trustee and the Indenture Trustee on or before March 31 of each year
beginning in 199_, a report addressed to the Board of Directors of the Servicer,
to the effect that such firm has examined certain documents and records of the
Servicer relating to the servicing of Receivables under this Agreement and that
such examination (a) was made in
10
accordance with generally accepted auditing standards and accordingly included
such tests and auditing procedures as such firm considered necessary in the
circumstances; (b) included tests relating to recreational vehicle loans
serviced for others in compliance with the minimum servicing standards
identified in the Mortgage Bankers Association of America's Uniform Single
Attestation Program for Mortgage Bankers (the "Program"), to the extent the
procedures in such Program are applicable to the servicing obligations set forth
in this Agreement; and (c) except as described in the report, disclosed no
exceptions or errors in such documents and records relating to recreational
vehicle loans serviced for others that, in such firm's opinion, paragraph four
of such Program requires such firm to report.
SECTION 4.12 Access to Certain Documentation and Information Regarding
Receivables. The Servicer shall provide to the Noteholders, Note Owners,
Certificateholders and Certificate Owners access to the Receivable Files in such
cases where the Noteholders, Note Owners, Certificateholders, or Certificate
Owners, as applicable, shall be required by applicable statutes or regulations
to review such documentation. Access shall be afforded without charge, but only
upon reasonable request and during the normal business hours at the offices of
the Servicer. Nothing in this Section shall affect the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Obligors and the failure of the Servicer to provide access to
information as a result of such obligation shall not constitute a breach of this
Section.
The Servicer shall provide to the Noteholders, Note Owners,
Certificateholders and Certificate Owners and any supervisory agents or
examiners which may relate to the Noteholders, Note Owners, Certificateholders
or Certificate Owners, including the Office of Thrift Supervision, the Office of
the Comptroller of the Currency or the FDIC and other similar entities, access
to any documentation regarding the Receivables which may be required by any
applicable regulations. Such access shall be afforded without charge, upon
reasonable request, during normal business hours and at the offices of the
Servicer, all in accordance with federal government, the FDIC, the Office of
Thrift Supervision, the Office of the Comptroller of the Currency or any other
similar regulations.
SECTION 4.13 Servicer Expenses. The Servicer shall be required to pay all
expenses incurred by it in connection with its activities hereunder, including
fees and disbursements of independent accountants, taxes imposed on the Servicer
and expenses incurred by the Servicer in connection with distributions and
reports to Noteholders.
SECTION 4.14 Appointment of Subservicer. The Servicer may at any time
appoint a subservicer to perform all or any portion of its obligations as
Servicer hereunder including but not limited to its obligations as custodian as
set forth in Article III hereof. Prior to the appointment of any subservicer
other than the Transferor, the Servicer shall cause the Rating Agency Condition
to have been satisfied in connection therewith. Notwithstanding the appointment
of any subservicer (including but not limited to the Transferor), the Servicer
shall remain obligated and be liable to the Issuer, the Owner Trustee, the
Indenture Trustee, the Noteholders and Certificateholders for the servicing,
administering and custodianship of the
11
Receivables in accordance with the provisions hereof without diminution of such
obligation and liability by virtue of the appointment of such subservicer and to
the same extent and under the same terms and conditions as if the Servicer alone
were servicing and administering and acting as custodian of the Receivables. The
fees and expenses of the subservicer shall be as agreed between the Servicer and
its subservicer from time to time, and none of the Issuer, the Owner Trustee,
the Indenture Trustee, the Noteholders or Certificateholders shall have any
responsibility therefor.
SECTION 4.15 Fidelity Bond; Errors and Omissions Insurance. The Servicer
shall maintain, at its own expense, a blanket fidelity bond and an errors and
omissions insurance policy, with broad coverage with responsible companies on
all officers, employees or other persons acting in any capacity with regard to
the Receivables to handle funds, money, documents and papers relating to the
Receivables. Any such fidelity bond and errors and omissions insurance shall
protect and insure the Servicer against losses, including forgery, theft,
embezzlement, fraud, errors and omissions and negligent acts of such persons.
Such fidelity bond shall also protect and insure the Servicer against losses in
connection with any failure to maintain insurance policies required pursuant to
this Agreement and the release or satisfaction of a Receivable without having
obtained payment in full of the indebtedness secured thereby. No provision of
this Section 4.15 requiring such fidelity bond and errors and omissions
insurance shall diminish or relieve the Servicer from its duties and obligations
as set forth in this Agreement. The coverage under any such bond and insurance
policy shall be in such amounts as are customary for the business of servicing
recreational vehicle receivables.
ARTICLE V
Distributions; Statements to Noteholders and Certificateholders
---------------------------------------------------------------
SECTION 5.01 Establishment of Trust Accounts.
(a)(i) The Servicer, for the benefit of the Noteholders and
Certificateholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account (the "Collection Account"),
bearing a designation clearly indicating that the funds deposited therein
are held for the benefit of the Noteholders and Certificateholders.
(ii) The Indenture Trustee, for the benefit of the Noteholders,
shall establish and maintain in the name of the Indenture Trustee an
Eligible Deposit Account (the "Note Distribution Account"), bearing a
designation clearly indicating that the funds deposited therein are held
for the benefit of the Noteholders.
(iii) The Servicer, for the benefit of the Noteholders and
Certificateholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account (the "Reserve Account"),
bearing a designation clearly indicating that the funds deposited therein
are held for the benefit of the Noteholders and Certificateholders. [To
follow: reference to Servicing Suspense Account.]
12
[(iv) The Indenture Trustee, for the benefit of the Class [ ]
Noteholders, shall establish and maintain in the name of the Indenture
Trustee an Eligible Deposit Account (the "Class [ ] Interest Account"),
bearing a designation clearly indicating that the funds deposited therein
are held for the benefit of the Class [ ] Noteholders.]
[(v) The Indenture Trustee, for the benefit of the Class [ ]
Noteholders, shall establish and maintain in the name of the Indenture
Trustee an Eligible Deposit Account (the "Class [ ] Principal
Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Class [ ]
Noteholders.]
(b) Subject to Section 8.03 of the Indenture, funds on deposit in the
Collection Account, the Class [ ] Interest Account, the Class [ ] Principal
Account and the Reserve Account (the Collection Account, the Class A-9 Interest
Account, the Class A-9 Principal Account and the Reserve Account being referred
to collectively, with the Note Distribution Account, as the "Trust Accounts")
shall be invested by the Indenture Trustee in Eligible Investments selected in
writing by the Servicer, in each case pursuant to a direction of the Servicer
which shall contain a certification that the requested investment constitutes an
Eligible Investment and is permitted to be made hereby by the Indenture Trustee.
It is understood and agreed that the Indenture Trustee shall not be liable for
any loss arising from an investment in Eligible Investments made in accordance
with this Section 5.01(b). All such Eligible Investments shall be held by the
Indenture Trustee for the benefit of the Noteholders and Certificateholders (or
for such of such holders for whose benefit the applicable account is
maintained); provided, that on each date on which amounts on deposit in such
accounts mature as provided below in this Section 5.01(b), all realized interest
and other investment income (net of losses and investment expenses) on funds on
deposit in the Collection Account shall be paid to the Servicer as additional
servicing compensation. Investment Earnings on amounts on deposit in the Reserve
Account, the Class [ ] Principal Account and the Class [ ] Interest Account
shall be added to the balance of the respective account as realized. Other than
as permitted by the Rating Agencies, funds on deposit in the Collection Account,
the Class [ ] Interest Account, the Class [ ] Principal Account and the
Reserve Account shall be invested in Eligible Investments that shall mature (A)
not later than the Business Day immediately preceding the next Monthly Payment
Date or (B) on such next Monthly Payment Date if either (x) such investment is
held in the trust department of the institution with which the Collection
Account, the Class [ ] Interest Account, the Class [ ] Principal Account
and the Reserve Account is then maintained and is invested in a time deposit of
such institution that is rated at least [ ] by Standard & Poor's and P-1 by
Moody's or (y) DFS (so long as the short-term unsecured debt obligations of DFS
are either (i) rated at least P-1 by Moody's and [ ] by Standard & Poor's on
the date such investment is made or (ii) guaranteed by an entity whose short-
term unsecured debt obligations are rated at least P-1 by Moody's and A-1 by
Standard & Poor's on the date such investment is made) has agreed to advance
funds on such Monthly Payment Date to the Note Distribution Account in the
amount payable on such investment on such Monthly Payment Date pending receipt
thereof to the extent necessary to make distributions on such Monthly Payment
Date. The guarantee referred to in clause (y) of the preceding sentence shall be
subject to the Rating Agency Condition. For the purpose of the foregoing, unless
DFS affirmatively agrees in writing
13
with the Indenture Trustee to make such advance with respect to such investment
prior to the time an investment is made, it shall not be deemed to have agreed
to make such advance. Funds deposited in a Trust Account on a day which
immediately precedes a Monthly Payment Date upon the maturity of any Eligible
Investments are not required to be invested overnight. Funds on deposit in the
Note Distribution Account shall not be invested. The Indenture Trustee shall
possess all right, title and interest in all funds on deposit from time to time
in the Trust Accounts and in all proceeds thereof (including all income thereon)
and all such funds, investments, proceeds and income shall be part of the Trust
Estate. The Trust Accounts shall be under the sole dominion and control of the
Indenture Trustee for the benefit of the Noteholders and Certificateholders (or
for such of such holders for whose benefit the applicable account is
maintained). If, at any time, any of the Trust Accounts ceases to be an Eligible
Deposit Account, the Indenture Trustee (or the Servicer on its behalf) shall
within 10 Business Days (or such longer period, not to exceed 30 calendar days,
as to which each Rating Agency may consent) establish a new Trust Account as an
Eligible Deposit Account and shall transfer any cash and/or any investments to
such new Trust Account.
[(ii) With respect to the Trust Account Property, the Indenture
Trustee agrees, by its acceptance hereof, that:
(A) any Trust Account Property that is held in deposit accounts
shall be held solely in the Eligible Deposit Accounts, subject to the
last sentence of Section 5.01(b)(i); and each such Eligible Deposit
Account shall be subject to the exclusive custody and control of the
Indenture Trustee, and the Indenture Trustee shall have sole signature
authority with respect thereto;
(B) any Trust Account Property that constitutes Physical
Property shall be delivered to the Indenture Trustee in accordance
with paragraph (1) of the definition of "Delivery" and shall be held,
pending maturity or disposition, solely by the Indenture Trustee or a
financial intermediary (as such term is defined in Section 8-313(4)
of the UCC) acting solely for the Indenture Trustee;
(C) any Trust Account Property that is a book-entry security
held through the Federal Reserve System pursuant to federal book-
entry regulations shall be delivered in accordance with paragraph (2)
of the definition of "Delivery" and shall be maintained by the
Indenture Trustee, pending maturity or disposition, through continued
book-entry registration of such Trust Account Property as described
in such paragraph; and
(D) any Trust Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by
clause (C) above shall be delivered to the Indenture Trustee in
accordance with paragraph (3) of the definition of "Delivery" and
shall be maintained by the Indenture Trustee, pending maturity or
disposition, through continued registration of the Indenture Trustee's
(or its nominee's) ownership of such security.]
14
(iii) The Servicer shall have the power, revocable by the Indenture
Trustee or by the Owner Trustee with the consent of the Indenture Trustee,
to make withdrawals and payments from the Trust Accounts (other than the
Note Distribution Account, the Class [ ] Principal Account and the Class
[ ] Interest Account) for the purpose of permitting the Servicer or the
Owner Trustee to carry out its respective duties hereunder or permitting
the Indenture Trustee to carry out its duties under the Indenture.
SECTION 5.02. Collections. (a) The Servicer shall remit within two
Business Days of receipt thereof to the Collection Account all payments by or on
behalf of the Obligors with respect to the Receivables (other than Purchased
Receivables) and all Liquidation Proceeds, both as collected during each
Collection Period. For purposes of this Article V the phrase "payments by or on
behalf of Obligors" shall mean payments made with respect to the Receivables or
the Financed Vehicles by Persons other than the Servicer, DFS, the Transferor or
the Depositor.
(b) Notwithstanding anything in this Agreement to the contrary (i) for
so long as DFS is the Servicer, (ii) no Servicer Default has occurred and
is continuing and (iii) (x) DFS arranges for and maintains a letter of
credit or other form of credit enhancement in respect of the Servicer's
obligations to make deposits of payments and Liquidation Proceeds in the
Collection Account that is acceptable in form and substance to each Rating
Agency or (y) DFS otherwise obtains the Rating Agency confirmations
described below, then, subject to any limitations in the confirmations
described below, the Servicer need not make the daily deposits of payments
and Liquidation Proceeds into the Collection Account as provided in Section
5.02(a), but may make a single deposit into the Collection Account in same-
day funds not later than 12:00 noon, New York City time, on the Business
Day immediately preceding each Monthly Payment Date in a net amount equal
to the amount which would have been on deposit with respect to the
immediately preceding Collection Period in the Collection Account;
provided, however, that prior to ceasing daily deposits as described in
Section 5.02(a) the Servicer shall have delivered to the Indenture Trustee
written confirmation from each of the Rating Agencies that the failure by
DFS to make daily deposits shall not result in a reduction or withdrawal of
the rating of any outstanding Securities.
(c) If (i) the Servicer makes a deposit into the Collection Account in
respect of a payment of a Receivable and such payment was received by the
Servicer in the form of a check which is not honored for any reason or (ii)
the Servicer makes a mistake with respect to the amount of any payment and
deposits an amount that is less than or more than the actual amount of such
payment, the Servicer shall appropriately adjust the amount subsequently
deposited into the Collection Account to reflect such dishonored check or
mistake. Any Receivable in respect of which a dishonored check is received
shall be deemed not to have been paid.
SECTION 5.03. Application of Collections. All payments by or on behalf of
Obligors for any Collection Period shall be applied by the Servicer as follows:
(a) first, payments by or on
15
behalf of the Obligors (other than with respect to Purchased Receivables) shall
be applied to reduce Outstanding Advances to the extent described in Section
5.04; and (b) second, any excess shall be applied to interest and principal on
the Receivables in accordance with the Simple Interest Method.
SECTION 5.04. Advances. As of the close of business on the last day of
each Collection Period, subject to the last sentence of this Section, the
Servicer shall advance an amount equal to the amount of interest due on the
Receivables at their respective APRs for the related Collection Period (assuming
the Receivables pay on their respective due dates) minus the amount of interest
actually received by the Servicer on the Receivables during the related
Collection Period (such amount, an "Advance"). With respect to each Receivable,
the Advance shall increase Outstanding Advances. If such calculation (i.e., the
subtraction of the amount of interest due on the Receivables at their respective
APRs for the related Collection Period (assuming the Receivables pay on their
respective due dates) from the amount of interest actually received on the
Receivables during the related Collection Period) results in a negative number,
an amount equal to the absolute value of such negative number shall be paid to
the Servicer and the amount of Outstanding Advances shall be reduced by such
amount, in each case in accordance with Section 5.03. In addition, in the event
that a Receivable becomes a Defaulted Receivable, Liquidation Proceeds with
respect to such Receivable attributable to accrued and unpaid interest thereon
(but not including interest for the then current Collection Period) shall be
paid to the Servicer to reduce Outstanding Advances.
Notwithstanding the foregoing, the Servicer shall not make any Advance: (i)
unless the Servicer, in its sole discretion, believes that the Servicer shall be
reimbursed for such Advance as contemplated by this Section; (ii) in respect of
principal of the Receivables; or (iii) in respect of a Defaulted Receivable or a
Purchased Receivable.
SECTION 5.05. Additional Deposits. The Servicer shall deposit in the
Collection Account on the Determination Date for the related Collection Period
the related Advance pursuant to Section 5.04. The Servicer and the Depositor
shall deposit or cause to be deposited in the Collection Account the aggregate
Purchase Amount with respect to Purchased Receivables and the Servicer shall
deposit therein all amounts to be paid under Section 9.01, in each case on or
prior to the Determination Date following the Collection Period as of which such
purchase is made by the Servicer, DFS, the Transferor or the Depositor, as the
case may be. In addition, any other deposits required to be made by the
Depositor or the Servicer to the Collection Account and which are not otherwise
provided for by Section 5.02 or by the other provisions of this Section 5.05
shall be made on or prior to the Determination Date for the related Collection
Period.
SECTION 5.06. Distributions.
(a)(i) On each Determination Date, the Servicer shall calculate all
amounts required to be deposited in the Note Distribution Account and the
Certificate Distribution Account.
16
(ii) On each Monthly Payment Date, the Servicer shall instruct the
Indenture Trustee (based on the information contained in the Servicer's
Certificate delivered on the related Determination Date pursuant to Section
4.09) to make the following deposits and distributions for receipt by the
Servicer or deposit in the applicable account by 11:00 A.M. (New York
time), to the extent of the Total Distribution Amount, in the following
order of priority:
(A) to the Servicer, from the Note Distribution Amount, the
Servicing Fee (and all unpaid Servicing Fees from prior Collection
Periods);
(B) to the Note Distribution Account, from the Total
Distribution Amount remaining after the application of clause (A),
the Noteholders' Interest Distributable Amount;
(C) to the Certificate Distribution Account, from the Total
Distribution Amount remaining after the application of clause (A) and
(B), the Certificateholders' Interest Distributable Amount;
(D) to the Note Distribution Account, from the Total
Distribution Amount remaining after the application of clauses (A)
through (C), the Noteholders' Regular Principal Distributable Amount;
(E) to the Certificate Distribution Account, from the Total
Distribution Amount remaining after the application of clauses (A)
through (D), the Certificateholders' Regular Principal Distributable
Amount;
(F) to the Reserve Account, from the Total Distribution Amount
remaining after the application of clauses (A) through (E), the
amount, if any, by which the Specified Reserve Account Balance for
such Monthly Payment Date, exceeds the amount then on deposit in the
Reserve Account; and
(G) to the Note Distribution Account, from the Total
Distribution Amount remaining after the application of clauses (A)
through (F), the Noteholders' Excess Distributable Amount, if any,
and after the Notes have been paid in full, after the application of
clauses (A), (D), (E) and (F), to the Certificate Distribution
Account, the Certificateholders' Excess Distributable Amount until
the Certificate Balance has been reduced to zero.
(b) On each Monthly Payment Date, the portion of the Total Distribution
Amount, if any, remaining after making in full each of the allocations set forth
in Section 5.06(a)(ii), shall be distributed to the Owner Trustee for
distribution by the Owner Trustee to the Depositor pursuant to Section 5.02(a)
of the Trust Agreement.
17
SECTION 5.07. Reserve Account.
(a) On the Closing Date the Depositor shall deposit an amount equal to the
Reserve Account Initial Deposit into the Reserve Account. If the amount on
deposit in the Reserve Account on any Monthly Payment Date (after giving effect
to all deposits thereto or withdrawals therefrom on such Monthly Payment Date)
is greater than the Specified Reserve Account Balance for such Monthly Payment
Date and the Overcollateralization Amount for such Monthly Payment Date is not
less than the Targeted Overcollateralization Amount, the Servicer shall instruct
the Indenture Trustee to distribute the amount of such excess to the Owner
Trustee for distribution by the Owner Trustee to the Depositor.
(b)(i) In the event that the Noteholders' Interest Distributable
Amount plus the Noteholders' Regular Principal Distributable Amount for a
Monthly Payment Date exceeds the sum of the amounts deposited into the Note
Distribution Account pursuant to Section 5.06(a)(ii) on such Monthly
Payment Date, the Servicer shall instruct the Indenture Trustee to withdraw
from the Reserve Account on such Monthly Payment Date an amount equal to
such excess, to the extent of funds available therein, and deposit such
amount into the Note Distribution Account.
(ii) In the event that the Certificateholders' Interest Distributable
Amount and the Certificateholders' Regular Distributable Amount for a
Monthly Payment Date exceeds the sum of the amounts deposited into the
Certificate Distribution Account pursuant to Section 5.06(a)(ii) on such
Monthly Payment Date, the Servicer shall instruct the Indenture Trustee to
withdraw from the Reserve Account on such Monthly Payment Date an amount
equal to such excess, to the extent of funds available therein after giving
effect to paragraph (b)(i) above, and deposit such amount into the
Certificate Distribution Account.
SECTION 5.08. Statements to Noteholders and Certificateholders. At least
three Business Days prior to each Monthly Payment Date, the Servicer shall
provide to the Indenture Trustee and the Owner Trustee (with a copy to each
Paying Agent) information relating to the Receivables for the applicable
Collection Period in order that the Indenture Trustee may perform the requisite
calculations and forward to each Noteholder and Certificateholder of record as
of the most recent Record Date a statement substantially in the forms of Exhibit
A-1 and Exhibit A-2 setting forth at least the following information as to the
Notes and the Certificates to the extent applicable:
(i) the amount of distributions to be made on such Monthly Payment
Date allocable to principal allocable to each Class of Notes and to the
Certificates;
(ii) the amount of such distributions to be made on such Monthly
Payment Date allocable to interest allocable to each Class of Notes and to
the Certificates;
18
(iii) the outstanding principal balance of each Class of Notes, the
Note Pool Factor for each such Class, the Certificate Balance and the
Certificate Pool Factor as of the close of business on the last day of the
preceding Collection Period, after giving effect to payments allocated to
principal reported under clause (i) above;
(iv) the amount of the Servicing Fee paid to the Servicer with respect
to the related Collection Period;
(v) the amount of Realized Losses, if any, with respect to the related
Collection Period;
(vi) the balance of the Reserve Account on such Monthly Payment Date
after giving effect to deposits and withdrawals to be made on such Monthly
Payment Date, if any; and
(vii) the Pool Balance as of the close of business on the last day of
the related Collection Period, after giving effect to payments allocated to
principal reported under clause (i) above.
Each amount set forth on the Monthly Payment Date statement under
clauses (i), (ii) or (iv) above shall be expressed as a dollar amount per
$1,000 of original principal balance of a Note or Certificate, as
applicable.
ARTICLE VI
The Depositor
-------------
SECTION 6.01. Representations of Depositor. The Depositor makes the
following representations on which the Issuer is deemed to have relied in
acquiring the Receivables. The representations speak as of the execution and
delivery of this Agreement and as of the Closing Date, in the case of the
Receivables, and shall survive the transfer of the Receivables to the Issuer and
the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) Organization and Good Standing. The Depositor is duly organized and
validly existing as a corporation in good standing under the laws of the State
of Nevada, with the corporate power and authority to own its properties and to
conduct its business as such properties are currently owned and such business is
presently conducted, and had at all relevant times, and has, the corporate
power, authority and legal right to acquire and own the Receivables.
(b) Due Qualification. The Depositor is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of property
or the conduct of its business shall require such qualifications.
19
(c) Power and Authority. The Depositor has the corporate power and
authority to execute and deliver this Agreement and to carry out its respective
terms; the Depositor has full power and authority to transfer and assign the
property to be transferred and assigned to and deposited with the Issuer, and
the Depositor shall have duly authorized such transfer and assignment to the
Issuer by all necessary corporate action; and the execution, delivery and
performance of this Agreement by the Depositor has been duly authorized by the
Depositor by all necessary corporate action.
(d) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of the Depositor enforceable in accordance with its terms.
(e) No Violation. The consummation of the transactions contemplated by
this Agreement by the Depositor and the fulfillment of the terms hereof by the
Depositor do not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or bylaws of the Depositor, or any
indenture, agreement or other instrument to which the Depositor is a party or by
which it is bound; or result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture, agreement or
other instrument (other than pursuant to the Basic Documents); or violate any
law or, to the best of the Depositor's knowledge, any order, rule or regulation
applicable to the Depositor of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
(f) No Proceedings. To the Depositor's best knowledge, there are no
proceedings or investigations pending or threatened before any court, regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties: (i) asserting the invalidity
of this Agreement, the Indenture or any of the other Basic Documents, the Notes
or the Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated by this
Agreement, the Indenture or any of the other Basic Documents, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement, the Indenture, any of the other Basic
Documents, the Notes or the Certificates or (iv) which might adversely affect
the federal or state income tax attributes of the Notes or the Certificates.
(g) Chief Executive Office. The chief executive office of the Depositor is
located at 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000.
SECTION 6.02. Corporate Existence. During the term of this Agreement, the
Depositor shall keep in full force and effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation and shall obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the Basic Documents
and each other instrument or
20
agreement necessary or appropriate to the proper administration of this
Agreement and the transactions contemplated hereby. In addition, all
transactions and dealings between the Depositor and its Affiliates shall be
conducted on an arm's-length basis.
SECTION 6.03. Liability of the Depositor. The Depositor shall be liable
in accordance herewith only to the extent of the obligations specifically
undertaken by the Depositor under this Agreement.
SECTION 6.04. Indemnification. (a) The Depositor shall indemnify, defend
and hold harmless the Issuer, the Owner Trustee, the Indenture Trustee and any
of the officers, directors, employees and agents of the Issuer, the Owner
Trustee and the Indenture Trustee from and against any taxes that may at any
time be asserted against any such Person with respect to the transactions
contemplated herein and in the other Basic Documents (except any income taxes
arising out of fees paid to the Owner Trustee and the Indenture Trustee),
including any sales, gross receipts, general corporation, tangible personal
property, privilege or license taxes (but, in the case of the Issuer, not
including any taxes asserted with respect to, and as of the date of, the
transfer of the Receivables to the Issuer or the issuance and original sale of
the Notes and the Certificates, or asserted with respect to ownership of the
Receivables, or federal or other income taxes arising out of distributions on
the Notes and the Certificates) and costs and expenses in defending against the
same.
(b) The Depositor shall indemnify, defend and hold harmless the Issuer, the
Owner Trustee, the Indenture Trustee, the Noteholders and Certificateholders and
any of the officers, directors, employees and agents of the Issuer, the Owner
Trustee and the Indenture Trustee from and against any loss, liability or
expense incurred by reason of (i) the Depositor's willful misfeasance, bad faith
or negligence in the performance of its duties under this Agreement, or by
reason of reckless disregard of its obligations and duties under this Agreement
and (ii) the Depositor's or the Issuer's violation of federal or state
securities laws in connection with the offering and sale of the Notes or the
Certificates.
(c) The Depositor shall indemnify, defend and hold harmless the Owner
Trustee and the Indenture Trustee and their respective officers, directors,
employees and agents from and against all costs, expenses, losses, claims,
damages and liabilities arising out of or incurred in connection with the
acceptance or performance of the trusts and duties herein and in the Trust
Agreement contained, in the case of the Owner Trustee, and herein and in the
Indenture contained, in the case of the Indenture Trustee, except to the extent
that such cost, expense, loss, claim, damage or liability: (i) in the case of
the Owner Trustee, shall be due to the willful misfeasance, bad faith or
negligence (except for errors in judgment) of the Owner Trustee or, in the case
of the Indenture Trustee, shall be due to the willful misfeasance, bad faith or
negligence (except for errors in judgment) of the Indenture Trustee; or (ii) in
the case of the Owner Trustee, shall arise from the breach by the Owner Trustee
of any of its representations or warranties set forth in Section 7.03 of the
Trust Agreement.
21
(d) The Depositor shall pay any and all taxes levied or assessed upon all
or any part of the Owner Trust Estate (other than any taxes expressly excluded
from the Depositor's responsibilities pursuant to this Section 6.04).
Indemnification under this Section shall survive the resignation or removal
of the Owner Trustee or the Indenture Trustee and the termination of this
Agreement and the other Basic Documents shall include reasonable fees and
expenses of counsel and expenses of litigation. If the Depositor shall have made
any indemnity payments pursuant to this Section and the Person to or on behalf
of whom such payments are made thereafter shall collect any of such amounts from
others, such Person shall promptly repay such amounts to the Depositor, without
interest.
SECTION 6.05. Merger or Consolidation of, or Assumption of the Obligations
of, Depositor. Any Person (a) into which the Depositor may be merged or
consolidated, (b) which may result from any merger or consolidation to which the
Depositor shall be a party or (c) which may succeed to the properties and assets
of the Depositor substantially as a whole, which Person in any of the foregoing
cases executes an agreement of assumption to perform every obligation of the
Depositor under this Agreement, shall be the successor to the Depositor
hereunder without the execution or filing of any document or any further act by
any of the parties to this Agreement; provided, however, that (i) immediately
after giving effect to such transaction, no representation or warranty made by
the Depositor pursuant to Section 3.01 shall have been breached (unless the
applicable breach shall have been cured, or the applicable Receivable shall have
been purchased in accordance with therewith), (ii) the Depositor shall have
delivered to the Owner Trustee and the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this Section
and that all conditions precedent, if any, provided for in this Agreement
relating to such transaction have been complied with, (iii) the Rating Agency
Condition shall have been satisfied with respect to such transaction and (iv)
the Depositor shall have delivered to the Owner Trustee and the Indenture
Trustee an Opinion of Counsel either (A) stating that, in the opinion of such
counsel, all financing statements and continuation statements and amendments
thereto have been executed and filed that are necessary fully to preserve and
protect the interest of the Owner Trustee and Indenture Trustee, respectively,
in the Receivables and reciting the details of such filings, or (B) stating
that, in the opinion of such counsel, no such action shall be necessary to
preserve and protect such interests. Notwithstanding anything herein to the
contrary, the execution of the foregoing agreement of assumption and compliance
with clauses (i), (ii), (iii) and (iv) above shall be conditions to the
consummation of the transactions referred to in clauses (a), (b) or (c) above.
SECTION 6.06. Limitation on Liability of Depositor and Others. The
Depositor and any director, officer, employee or agent of the Depositor may rely
in good faith on the advice of counsel or on any document of any kind, prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action that shall not be incidental to its
obligations under this Agreement, and that in its opinion may involve it in any
expense or liability.
22
SECTION 6.07. Depositor May Own Notes and Certificates. The Depositor and
any Affiliate thereof may in its individual or any other capacity become the
owner or pledgee of Notes and Certificates with the same rights as it would have
if it were not the Depositor or an Affiliate thereof, except as expressly
provided herein or in any other Basic Document.
SECTION 6.08. Pennsylvania Motor Vehicle Sales Finance Act License. The
Depositor shall use its best efforts to maintain, and shall cause the Trust to
use its best efforts to maintain, the effectiveness of all licenses required
under the Pennsylvania Motor Vehicle Sales Finance Act in connection with this
Agreement and the other Basic Documents and the transactions contemplated hereby
and thereby until such time as the Trust shall terminate in accordance with the
Trust Agreement.
ARTICLE VII
The Servicer
------------
SECTION 7.01. Representations and Warranties of the Servicer. DFS makes
the following representations and warranties on which each of the Transferor,
the Depositor and the Issuer is deemed to have relied in acquiring the
Receivables. Such representations and warranties speak as of the execution and
delivery of this Agreement and as of the Closing Date but shall survive (1) the
transfer and assignment of the Receivables to the Issuer and the pledge thereof
to the Indenture Trustee pursuant to the Indenture and (2) the removal of DFS as
Servicer.
(i) DFS is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada with the full power and
authority to own and conduct its business as it is presently conducted by
DFS. DFS is or shall be in compliance with the laws of any state to the
extent necessary to insure the enforceability of each Receivable and the
servicing of the Receivables in accordance with the terms of this
Agreement.
(ii) DFS has the full power and authority to consummate all
transactions contemplated by this Agreement. DFS has duly authorized the
execution, delivery and performance of this Agreement, has duly executed
and delivered this Agreement and this Agreement constitutes a legal, valid
and binding obligation of DFS, enforceable against it in accordance with
its terms.
(iii) Neither the execution and delivery of this Agreement by DFS, the
acquisition or origination of the Receivables by DFS, the consummation by
DFS of the transactions contemplated hereby, nor the fulfillment of or
compliance by DFS with the terms and conditions of this Agreement shall
conflict with or result in a breach of any of the terms of DFS's charter or
by-laws or any legal restriction or any agreement or instrument to which
DFS is now a party or by which it is bound, or constitute a default or
23
result in an acceleration under any of the foregoing, or result in the
violation of any law, rule, regulation, order, judgment or decree to which
DFS or its property is subject.
(iv) DFS does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant of DFS contained in
this Agreement.
(v) There is no litigation pending or, to DFS's knowledge, threatened,
which if determined adversely to DFS would adversely affect the execution,
delivery or enforceability of this Agreement, or the ability of DFS to
service the Receivables hereunder in accordance with the terms hereof or
which would have a material adverse effect on the financial condition of
DFS.
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by DFS of or compliance by DFS with this Agreement or the
consummation by DFS of the transactions contemplated by this Agreement.
(vii) The collection practices used by DFS with respect to each
Receivable have been in all respects legal, proper, prudent and customary
in the origination and servicing of receivables similar to the Receivables.
(viii) The chief executive office of DFS is located in St. Louis,
Missouri.
(ix) Neither the representations and warranties of DFS set forth in
this Agreement nor any statement, report or other document furnished or to
be furnished by DFS in connection with or pursuant to this Agreement or in
connection with the transactions contemplated hereby contains any untrue
statement of fact or omits to state a fact necessary to make the statements
contained therein not misleading;
SECTION 7.02. Indemnities, etc. of Servicer. The Servicer shall be liable
in accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement:
(a) The Servicer shall indemnify, defend and hold harmless the Issuer, the
Owner Trustee, the Indenture Trustee, the Noteholders, the Certificateholders
and the Depositor and any of the officers, directors, employees and agents of
the Issuer, the Owner Trustee and the Indenture Trustee from and against any and
all costs, expenses, losses, damages, claims and liabilities arising out of or
resulting from the use, ownership or operation by the Servicer or any Affiliate
thereof of a Financed Vehicle.
(b) The Servicer shall indemnify, defend and hold harmless the Issuer, the
Owner Trustee, the Indenture Trustee, the Depositor, the Noteholders, the
Certificateholders and any of the officers, directors, employees and agents of
the Issuer, the Owner Trustee and the Indenture Trustee from and against any and
all costs, expenses, losses, claims, damages and liabilities to
24
the extent that such cost, expense, loss, claim, damage or liability arose out
of, or was imposed upon any such Person through, the negligence, willful
misfeasance or bad faith of the Servicer in the performance of its duties under
this Agreement or by reason of reckless disregard of its obligations and duties
under this Agreement.
(c) The Servicer agrees to pay when due the compensation and any other
amounts due to the Indenture Trustee and the Owner Trustee pursuant to Section
6.07 of the Indenture and Section 8.02 of the Trust Agreement (in the event the
Issuer or the Depositor, as applicable, cannot fully indemnify the Indenture
Trustee or the Owner Trustee), as applicable.
For purposes of this Section, in the event of the termination of the rights
and obligations of DFS (or any successor thereto pursuant to Section 7.03) as
Servicer pursuant to Section 8.01, or a resignation by such Servicer pursuant to
this Agreement, such Servicer shall be deemed to be the Servicer pending
appointment of a successor Servicer (other than the Indenture Trustee) pursuant
to Section 8.02.
Indemnification and other payments under this Section shall survive the
resignation or removal of the Owner Trustee or the Indenture Trustee or the
termination of this Agreement and the Indenture and shall include reasonable
fees and expenses of counsel and expenses of litigation. If the Servicer shall
have made any indemnity payments pursuant to this Section and the Person to or
on behalf of whom such payments are made thereafter collects any of such amounts
from others, such Person shall promptly repay such amounts to the Servicer,
without interest.
SECTION 7.03. Merger or Consolidation of, or Assumption of the Obligations
of, Servicer. Any Person (a) into which the Servicer may be merged or
consolidated, (b) which may result from any merger or consolidation to which the
Servicer shall be a party, (c) which may succeed to the properties and assets of
the Servicer substantially as a whole or (d) with respect to the Servicer's
obligations hereunder, which is a corporation 50% or more of the voting stock of
which is owned, directly or indirectly, by DFS, which Person executed an
agreement of assumption to perform every obligation of the Servicer hereunder,
shall be the successor to the Servicer under this Agreement without further act
on the part of any of the parties to this Agreement; provided, however, that (i)
immediately after giving effect to such transaction, no Servicer Default and no
event which, after notice or lapse of time, or both, would become a Servicer
Default shall have occurred and be continuing, (ii) the Servicer shall have
delivered to the Owner Trustee and the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this Section
and that all conditions precedent provided for in this Agreement relating to
such transaction have been complied with, (iii) the Rating Agency Condition
shall have been satisfied with respect to such transaction and (iv) the Servicer
shall have delivered to the Owner Trustee and the Indenture Trustee an Opinion
of Counsel stating that, in the opinion of such counsel, either (A) all
financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary fully to preserve and protect the
interest of the Owner Trustee and the Indenture Trustee, respectively, in the
Receivables and reciting the
25
details of such filings or (B) no such action shall be necessary to preserve and
protect such interests. Notwithstanding anything herein to the contrary, the
execution of the foregoing agreement of assumption and compliance with clauses
(i), (ii), (iii) and (iv) above shall be conditions to the consummation of the
transactions referred to in clause (a), (b), (c) or (d) above.
SECTION 7.04. Limitation on Liability of Servicer and Others. Neither the
Servicer nor any of the directors, officers, employees or agents of the Servicer
shall be under any liability to the Issuer, the Noteholders or
Certificateholders, except as provided under this Agreement, for any action
taken or for refraining from the taking of any action pursuant to this Agreement
or for errors in judgment; provided, however, that this provision shall not
protect the Servicer or any such Person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of duties or by reason of reckless disregard of obligations
and duties under this Agreement. The Servicer and any director, officer,
employee or agent of the Servicer may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising under this Agreement.
Except as provided in this Agreement, the Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action that shall not be
incidental to its duties to service the Receivables in accordance with this
Agreement and that in its opinion may involve it in any expense or liability;
provided, however, that the Servicer may undertake any reasonable action that it
may deem necessary or desirable in respect of this Agreement and the other Basic
Documents and the rights and duties of the parties to this Agreement and the
other Basic Documents and the interests of the Noteholders under the Indenture
and of the Certificateholders under the Trust Agreement.
SECTION 7.05. DFS Not To Resign as Servicer. Subject to the provisions of
Section 7.03, DFS shall not resign from the obligations and duties hereby
imposed on it as Servicer under this Agreement except upon a determination that
the performance of its duties under this Agreement shall no longer be
permissible under applicable law. Notice of any such determination permitting
the resignation of DFS shall be communicated to the Owner Trustee and the
Indenture Trustee at the earliest practicable time (and, if such communication
is not in writing, shall be confirmed in writing at the earliest practicable
time) and any such determination shall be evidenced by an Opinion of Counsel to
such effect delivered to the Owner Trustee and the Indenture Trustee
concurrently with or promptly after such notice. No such resignation shall
become effective until the Indenture Trustee or a successor Servicer shall have
assumed the responsibilities and obligations of DFS in accordance with Section
8.02. In addition, in effecting such resignation, DFS shall cooperate with the
successor Servicer, the Indenture Trustee and the Owner Trustee in effecting the
termination of its responsibilities and rights as Servicer under this Agreement,
including the transfer to the successor Servicer for administration by it of all
cash amounts that shall at the time be held by it for deposit, or shall
thereafter be received by it with respect to any Receivable. DFS shall also give
the successor Servicer access to its records, software, systems, facilities and
employees in order to facilitate the servicing transfer. All reasonable costs
and expenses (including attorneys' fees) incurred in connection with
26
transferring the Receivable Files and the Servicer's duties to the successor
Servicer and amending this Agreement to reflect such succession as Servicer
shall be paid by DFS upon presentation of reasonable documentation of such costs
and expenses. Upon receipt of notice of the occurrence of any such resignation,
the Owner Trustee shall give notice thereof to the Rating Agencies.
ARTICLE VII
Servicer Default
----------------
SECTION 8.01. Servicer Default. If any one of the following events (a
"Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to deliver to the Indenture Trustee for
deposit in any of the Trust Accounts or the Certificate Distribution Account any
required payment or to direct the Indenture Trustee to make any required
distributions therefrom, which failure continues unremedied for a period of
three Business Days after written notice of such failure is received by the
Servicer from the Owner Trustee or the Indenture Trustee (with a copy to the
Indenture Trustee, if given by the Owner Trustee) or after discovery of such
failure by an officer of the Servicer; or
(b) failure by the Servicer duly to observe or to perform in any material
respect any other covenants or agreements of the Servicer set forth in this
Agreement or any other Basic Document, which failure shall (i) materially and
adversely affect the rights of Noteholders and (ii) continue unremedied for a
period of 60 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given (A) to the Servicer by
the Owner Trustee or the Indenture Trustee (with a copy to the Indenture
Trustee, if given by the Owner Trustee) or (B) to the Servicer, and to the Owner
Trustee and the Indenture Trustee, by the Holders of Notes or Certificates
evidencing not less than 25% of the Outstanding Amount of the Notes or 25% of
the Certificate Balance, respectively; or
(c) the occurrence of an Insolvency Event with respect to the Servicer;
then, and in each and every case, so long as the Servicer Default shall not
have been remedied, either the Indenture Trustee or the Holders of Notes
evidencing not less than 25% of the Outstanding Amount of the Notes, by notice
then given in writing to the Servicer (and to the Indenture Trustee and the
Owner Trustee if given by the Noteholders) may terminate all the rights and
obligations (other than the obligations set forth in Section 7.02 hereof) of the
Servicer under this Agreement. On or after the latest of receipt by the Servicer
of such written notice or the date of termination specified in such notice or
deemed specified pursuant to Section 8.02(d), all authority and power of the
Servicer under this Agreement, whether with respect to the Notes or the
Receivables or otherwise, shall, without further action, pass to and be vested
in the Indenture Trustee or such successor Servicer as may be appointed under
Section 8.02; and,
27
without limitation, the Indenture Trustee and the Owner Trustee are hereby
authorized and empowered to execute and deliver, for the benefit of the
predecessor Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement of the Receivables and related
documents, or otherwise. The predecessor Servicer shall cooperate with the
successor Servicer, the Indenture Trustee and the Owner Trustee in effecting the
termination of the responsibilities and rights of the predecessor Servicer under
this Agreement, including the transfer to the successor Servicer for
administration by it of all cash amounts that shall at the time be held by the
predecessor Servicer for deposit, or shall thereafter be received by it with
respect to any Receivable. The predecessor Servicer shall also give the
successor Servicer access to its records, software, systems, facilities and
employees in order to facilitate the servicing transfer. All reasonable costs
and expenses (including attorneys' fees) incurred in connection with
transferring the Receivable Files and the Servicer's duties to the successor
Servicer and amending this Agreement to reflect such succession as Servicer
pursuant to this Section shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs and expenses. Upon
receipt of notice of the occurrence of a Servicer Default, the Owner Trustee
shall give notice thereof to the Rating Agencies.
SECTION 8.02. Appointment of Successor.
(a) Upon the Servicer's receipt of notice of termination pursuant to
Section 8.01 or the Servicer's resignation in accordance with the terms of this
Agreement, the predecessor Servicer shall continue to perform its functions as
Servicer under this Agreement, in the case of termination, only until the date
specified in such termination notice or, if no such date is specified in a
notice of termination, until receipt of such notice (subject in each case to
Section 8.02(d)) and, in the case of resignation, until the later of (i) the
date 45 days from the delivery to the Owner Trustee and the Indenture Trustee of
written notice of such resignation (or written confirmation of such notice) in
accordance with the terms of this Agreement and (ii) the date upon which the
predecessor Servicer shall become unable to act as Servicer, as specified in the
notice of resignation and accompanying Opinion of Counsel. In the event of the
Servicer's termination hereunder, the Indenture Trustee shall appoint a
successor Servicer, and the successor Servicer shall accept its appointment by a
written assumption in form acceptable to the Owner Trustee and the Indenture
Trustee. In the event that a successor Servicer has not been appointed at the
time when the predecessor Servicer has ceased to act as Servicer in accordance
with this Section, the Indenture Trustee without further action shall
automatically be appointed the successor Servicer and the Indenture Trustee
shall be entitled to the Servicing Fee. Notwithstanding the above, the Indenture
Trustee shall, if it shall be legally unable so to act, appoint or petition a
court of competent jurisdiction to appoint any established institution, having a
net worth of not less than $100,000,000 and whose regular business shall include
the servicing of recreational vehicle receivables, as the successor to the
Servicer under this Agreement.
(b) Upon appointment, the successor Servicer (including the Indenture
Trustee acting as successor Servicer) shall be the successor in all respects to
the predecessor Servicer and shall
28
be subject to all the responsibilities, duties and liabilities arising
thereafter relating thereto placed on the predecessor Servicer and shall be
entitled to the Servicing Fee and all the rights granted to the predecessor
Servicer by the terms and provisions of this Agreement.
(c) The Servicer may not resign except as contemplated by Section 7.05.
(d) Notwithstanding anything herein to the contrary, any notice of
termination delivered by Noteholders pursuant to Section 8.01 that (i) does not
contain therein a date as of which such termination shall take effect or (ii)
contains such a date of termination, shall be deemed, in the case of clauses (i)
and (ii) to contain a date of termination which is no sooner than the date,
established by the Indenture Trustee by notice to the Servicer, which shall be
the earliest date practicable by which the Indenture Trustee is capable of
assuming the functions of Servicer hereunder.
SECTION 8.03. Repayment of Advances. If the Servicer shall change, the
predecessor Servicer shall be entitled to receive reimbursement for Outstanding
Advances pursuant to Section 5.04 with respect to all Advances made by the
predecessor Servicer.
SECTION 8.04. Notification to Noteholders. Upon any termination of, or
appointment of a successor to, the Servicer pursuant to this Article VIII, the
Indenture Trustee shall give prompt written notice thereof to Noteholders and
the Rating Agencies.
SECTION 8.05. Waiver of Past Defaults. The Holders of Notes evidencing
not less than a majority of the Outstanding Amount of the Notes may, on behalf
of all Noteholders, waive in writing any default by the Servicer in the
performance of its obligations hereunder and its consequences, except a default
in making any required deposits to or payments from any of the Trust Accounts in
accordance with this Agreement. Upon any such waiver of a past default, such
default shall cease to exist, and any Servicer Default arising therefrom shall
be deemed to have been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereto.
ARTICLE IX
Termination
-----------
SECTION 9.01. Optional Purchase of All Receivables.
(a) As of the last day of any Collection Period immediately preceding a
Monthly Payment Date as of which the then outstanding Pool Balance is less than
ten percent (10%) of the Initial Pool Balance, the Servicer shall have the
option to purchase the Owner Trust Estate, other than the Trust Accounts, as of
such last day. To exercise such option, the Servicer shall deposit pursuant to
Section 5.05 in the Collection Account an amount equal to the aggregate Purchase
Amount for the Receivables (including Defaulted Receivables), plus the appraised
29
value of any such other property held by the Trust other than the Trust
Accounts, such value to be determined by an appraiser mutually agreed upon by
the Servicer, the Owner Trustee and the Indenture Trustee, and shall succeed to
all interests in and to the Trust. Notwithstanding the foregoing, the Servicer
shall not be permitted to exercise such option unless the resulting distribution
to the Noteholders and Certificateholders on the applicable Monthly Payment Date
would be sufficient to pay the sum of the outstanding principal balance of the
Notes and the Certificate Balance and all accrued but unpaid interest thereon.
[ (b) Upon any sale of the assets of the Trust pursuant to Section 9.02
of the Trust Agreement, the Servicer shall instruct the Indenture Trustee to
deposit the proceeds from such sale after all payments and reserves therefrom
have been made (the "Insolvency Proceeds") in the Collection Account. On the
Monthly Payment Date on which the Insolvency Proceeds are deposited in the
Collection Account (or, if such proceeds are not so deposited on a Monthly
Payment Date, on the Monthly Payment Date immediately following such deposit),
the Servicer shall instruct the Indenture Trustee to make the following deposits
(after the application on such Monthly Payment Date of the Total Distribution
Amount) from the Insolvency Proceeds and any funds remaining in the Reserve
Account, the Class [ ] Interest Account and the Class [ ] Principal Account
(including the proceeds of any sale of investments therein as described in the
following sentence):
(i) to the Note Distribution Account, any portion of the Noteholders'
Interest Distributable Amount not otherwise deposited into the Note
Distribution Account on such Monthly Payment Date;
(ii) to the Note Distribution Account, the outstanding principal
balance of the Notes (after giving effect to the reduction in the
outstanding principal balance of the Notes to result from the deposits made
in the Note Distribution Account on such Monthly Payment Date and on prior
Monthly Payment Dates);
(iii) to the Certificate Distribution Account, any portion of the
Certificateholders' Interest Distributable Amount not otherwise deposited
into the Certificate Distribution Account on such Monthly Payment Date;
(iv) to the Certificate Distribution Account, the outstanding
principal balance of the Certificates (after giving effect to the reduction
in the outstanding principal balance of the Certificates to result from the
deposits made in the Certificate Distribution Account on such Monthly
Payment Date and on prior Monthly Payment Dates); and
(v) any remaining amount to the Owner Trustee for distribution to the
Depositor.
Any investments on deposit in the Trust Accounts, which shall not
mature on or before such Monthly Payment Date, shall be sold by the
Indenture Trustee at such time as
30
shall result in the Indenture Trustee receiving the proceeds from such sale
not later than the Determination Date preceding such Monthly Payment Date.]
(c) Notice of any termination of the Trust shall be given by the Servicer
to the Owner Trustee and the Indenture Trustee as soon as practicable after the
Servicer has received notice thereof.
(d) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the
Certificateholders shall succeed to the rights of the Noteholders hereunder and
the Owner Trustee shall succeed to the rights of, and assume the obligations of,
the Indenture Trustee pursuant to this Agreement.
ARTICLE X
Miscellaneous
-------------
SECTION 10.01. Amendment. This Agreement may be amended by the parties
hereto, with the consent of the Indenture Trustee, but without the consent of
any other Person, to cure any ambiguity, to correct or supplement any provisions
in this Agreement or for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions in this Agreement or of
modifying in any manner the rights of the Noteholders or Certificateholders;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel delivered to the Owner Trustee and the Indenture Trustee, adversely
affect in any material respect the interests of any Noteholder or
Certificateholder.
This Agreement may also be amended from time to time by the parties hereto,
with the consent of the Indenture Trustee and the consent of the Holders of
Notes evidencing not less than a majority of the Outstanding Amount of the Notes
and the consent of the Holders of outstanding Certificates evidencing not less
than a majority of the outstanding Certificate Balance, 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
Noteholders or Certificateholders; provided, however, that no such amendment
shall (a) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, collections of payments on Receivables or distributions that
shall be required to be made for the benefit of the Noteholders or
Certificateholders or (b) reduce the aforesaid percentage of the Outstanding
Amount of the Notes and the Certificate Balance, the Holders of which are
required to consent to any such amendment, without the consent of the Holders of
all of the outstanding Notes and Certificates.
Promptly after the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to the Indenture Trustee and each of the Rating Agencies.
31
It shall not be necessary for the consent of Noteholders or
Certificateholders pursuant to this Section to approve the particular form of
any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof.
Prior to the execution of or the consent to any amendment to this
Agreement, the Owner Trustee and the Indenture Trustee shall be entitled to
receive and rely upon (i) an Opinion of Counsel stating that the execution of
such amendment is authorized or permitted by this Agreement and (ii) the Opinion
of Counsel referred to in Section 10.02(i). The Owner Trustee and the Indenture
Trustee may, but shall not be obligated to, enter into or consent to any such
amendment which affects the Owner Trustee's or the Indenture Trustee's, as
applicable, own rights, duties or immunities under this Agreement or otherwise.
SECTION 10.02. Protection of Title to Trust; Change of Name, Identity,
Corporate Structure or Location of the Depositor, Etc.
(a) The Depositor shall execute and file such financing statements and
cause to be executed and filed such continuation statements, all in such manner
and in such places as may be required by law fully to preserve, maintain and
protect the interest of the Issuer and of the Indenture Trustee in the
Receivables and in the proceeds thereof. The Depositor shall deliver (or cause
to be delivered) to the Owner Trustee and the Indenture Trustee file-stamped
copies of, or filing receipts for, any document filed as provided above, as soon
as available following such filing.
(b) The Depositor shall not change its name, identity or corporate
structure in any manner that would, could or might make any financing statement
or continuation statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of Section 9-402(7) of the UCC, unless it shall
have given the Owner Trustee and the Indenture Trustee at least five days' prior
written notice thereof and shall have promptly filed appropriate amendments to
all previously filed financing statements or continuation statements.
(c) The Depositor shall give the Owner Trustee and the Indenture Trustee at
least 60 days' prior written notice of any relocation of its chief 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 promptly file
any such amendment or new financing statement. The Servicer shall at all times
maintain each office from which it shall service Receivables, and its principal
executive office, within the United States of America.
(d) The Servicer shall maintain accounts and records as to each Receivable
accurately and in sufficient detail to permit (i) the reader thereof to know at
any time the status of such Receivable, including payments and recoveries made
and payments owing (and the nature of each) and (ii) reconciliation between
payments or recoveries on (or with respect to) each Receivable and the amounts
from time to time deposited in the Collection Account in respect of such
Receivable.
32
(e) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables, the Servicer's
master computer records (including any backup archives) that refer to a
Receivable shall indicate clearly the interest of the Issuer and the Indenture
Trustee in such Receivable and that such Receivable is owned by the Issuer and
has been pledged to the Indenture Trustee. Indication of the Issuer's and the
Indenture Trustee's interest in a Receivable shall be deleted from or modified
on the Servicer's computer systems when, and only when, the related Receivable
shall have been paid in full or shall have become a Purchased Receivable.
(f) If at any time the Depositor or the Servicer shall propose to sell,
grant a security interest in, or otherwise transfer any interest in recreational
vehicle receivables to any prospective purchaser, lender or other transferee,
the Servicer shall give to such prospective purchaser, lender or other
transferee computer tapes, records or printouts (including any restored from
backup archives) that, if they shall refer in any manner whatsoever to any
Receivable, shall indicate clearly that such Receivable has been transferred to
and is owned by the Issuer and has been pledged to the Indenture Trustee.
(g) The Servicer shall permit the Indenture Trustee and its agents at any
time during normal business hours to inspect, audit and make copies of and
abstracts from the Servicer's records regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the Owner Trustee or to the
Indenture Trustee, within five Business Days, a list of all Receivables (by
contract number and name of Obligor) then held as part of the Trust, together
with a reconciliation of such list to the Schedule of Receivables and to each of
the Servicer's Certificates furnished before such request indicating removal of
Receivables from the Trust.
(i) The Servicer shall deliver to the Owner Trustee and the Indenture
Trustee, promptly after the execution and delivery of this Agreement, and of
each amendment hereto and on each Monthly Payment Date occurring in September,
an Opinion of Counsel (which may be an employee of the Servicer) stating that,
in the opinion of such counsel, either (A) all financing statements and
continuation statements have been executed and filed that are necessary fully to
preserve and protect the interest of the Owner Trustee and the Indenture Trustee
in the Receivables, and reciting the details of such filings or referring to
prior Opinions of Counsel in which such details are given, or (B) no such action
shall be necessary to preserve and protect such interest. Each such Opinion of
Counsel shall specify any action necessary (as of the date of such opinion) to
be taken in the following year to preserve and protect such interest.
(j) The Depositor shall, to the extent required by applicable law, cause
the Notes and Certificates to be registered with the Commission pursuant to
Section 12(b) or Section 12(g) of the Exchange Act within the time periods
specified in such sections.
33
SECTION 10.03. Notices. All demands, notices, directions, communications
and instructions upon, to, or by the Depositor, the Servicer, the Owner Trustee,
the Indenture Trustee or the Rating Agencies under this Agreement shall be in
writing, personally delivered or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in the
case the Servicer (so long as DFS is the Servicer), to Deutsche Financial
Services Corporation, 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000,
Attention: Chief Legal Officer, (b) in the case of the Depositor, to Deutsche
Recreational Asset Funding Corporation, 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx,
Xxxxxxxx 00000, Attention: President, (c) in the case of the Issuer or the Owner
Trustee, at the Corporate Trust Office (as defined in the Trust Agreement), (d)
in the case of the Indenture Trustee, at the Corporate Trust Office, (e) in the
case of Moody's, to Xxxxx'x Investors Service, Inc., ABS Monitoring Department,
00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and (f) in the case of Standard &
Poor's, to Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx 00000, Attention
of Asset Backed Surveillance Department; or, as to each of the foregoing, at
such other address as shall be designated by written notice to the other Persons
listed in this Section.
SECTION 10.04. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in this Section, in Sections 6.05 and 7.03
of this Agreement and as provided in the provisions of this Agreement concerning
the resignation of the Servicer, this Agreement may not be assigned by the
Depositor or the Servicer. The parties hereto hereby acknowledge and consent to
any mortgage, pledge, assignment and grant of a security interest by the Issuer
to the Indenture Trustee pursuant to the Indenture for the benefit of the
Noteholders of all right, title and interest of the Issuer in, to and under the
Depositor Conveyed Property and/or the assignment of any or all of the Issuer's
rights under this Agreement to the Indenture Trustee.
SECTION 10.05. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Depositor, the Servicer, the Issuer,
the Owner Trustee, the Indenture Trustee and the Noteholders, and, except as
expressly provided in this Agreement, nothing in this Agreement shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Owner Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
SECTION 10.06. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10.07. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
34
SECTION 10.08. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 10.09. Governing Law; Submission to Jurisdiction. THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE PERFECTION
(AND THE EFFECT OF PERFECTION OR NON-PERFECTION) OF THE INTERESTS OF ANY PERSON
IN CONVEYED PROPERTY ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK. EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE NON-
EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK, NEW YORK OVER ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THE BASIC DOCUMENTS, AND IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF THE ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE OR FEDERAL COURT, IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING.
SECTION 10.10. Nonpetition Covenants. Notwithstanding any prior
termination of this Agreement, the Servicer and the Depositor shall not, prior
to the date which is one year and one day after the termination of the Trust
Agreement, acquiesce, petition or otherwise invoke or cause the Issuer to invoke
the process of any court or government authority for the purpose of commencing
or sustaining a case against the Issuer under any federal or state bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Issuer or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Issuer. Notwithstanding any prior termination of this
Agreement, the Servicer and the Issuer shall not, prior to the date which is one
year and one day after the termination of the Trust Agreement, acquiesce,
petition or otherwise invoke or cause the Depositor to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Depositor under any federal or state bankruptcy, insolvency or
similar law, or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Depositor or any substantial part
of its property, or ordering the winding up or liquidation of the affairs of the
Depositor.
SECTION 10.11. Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by [ ] not
in its individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event shall [ ] in its
individual capacity or, except as expressly provided in the Trust Agreement, as
beneficial owner
35
of the Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer. For all purposes
of this Agreement, in the performance of its duties or obligations hereunder or
in the performance of any duties or obligations of the Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by [ ], not in its
individual capacity but solely as Indenture Trustee and in no event shall
[ ] have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
or in any of the certificates, notices or agreements delivered pursuant hereto,
as to all of which recourse shall be had solely to the assets of the Issuer.
SECTION 10.12. Waiver. Each of DFS, the Depositor, the Trust, the Owner
Trustee and the Indenture Trustee hereby (i) acknowledges that Xxxxx, Xxxxx &
Xxxxx represents DFS, the Transferor, the Depositor and Affiliates of the
Transferor, DFS and the Depositor in connection with the transactions
contemplated by the Basic Documents, and represents the institutions which are
the Indenture Trustee and the Owner Trustee (or Affiliates of such institutions)
in other transactions, and (ii) waives any conflict of interest relating
thereto. Notwithstanding any other provision of this Agreement, Xxxxx, Xxxxx &
Xxxxx is entitled to rely on this Section.
SECTION 10.13. Separate Corporate Existence. The Depositor hereby
acknowledges that the Trust is entering into the transactions contemplated by
the Basic Documents in reliance upon the Depositor's identity as a legal entity
separate from DFS and the Transferor. Therefore, until the first day following
the termination of the Trust Agreement on which all of the Securities have been
paid in full, the Depositor shall take all reasonable steps to make it apparent
to third Persons that each of DFS and the Transferor is an entity with assets
and liabilities distinct from those of the Depositor and any other Affiliate and
that the Depositor is not a division of DFS or the Transferor or any other
Person.
[SIGNATURES FOLLOW]
36
IN WITNESS WHEREOF, the parties hereto have caused this Transfer and
Servicing Agreement to be duly executed by their respective officers as of the
day and year first above written.
DISTRIBUTION FINANCIAL SERVICES [RV/BOAT]
TRUST 199_-_
By: [ ], not in its individual
capacity but solely as Owner Trustee on behalf
of the Trust
By: ____________________________________________________
Name: __________________________________________________
Title: _________________________________________________
DEUTSCHE RECREATIONAL ASSET FUNDING
CORPORATION, as Depositor
By: ____________________________________________________
Name: __________________________________________________
Title: _________________________________________________
DEUTSCHE FINANCIAL SERVICES CORPORATION,
as Servicer
By: ____________________________________________________
Name: __________________________________________________
Title: _________________________________________________
Acknowledged, accepted and agreed to
as of the day and year first above written:
[ ],
not in its individual capacity but
solely as Indenture Trustee
By: __________________________________
Name: ________________________________
Title: _______________________________
37
APPENDIX A
DEFINITIONS
"Accelerated Principal Distribution Amount" means, with respect to any
Monthly Payment Date, the portion, if any, of the Total Distribution Amount for
the related Collection Period that remains after payment of (a) the Servicing
Fee, (b) the interest due on the Notes (including deposits to the Class [ ]
Interest Account), (c) the Regular Principal Distribution Amount, (d) the amount
of interest due on the Certificates and (e) the amount, if any, required to be
deposited into the Reserve Account.
"Act" has the meaning specified in Section 11.03(a) of the Indenture.
"Advance" means the amount of interest, as of the close of business on the
last day of a Collection Period, which the Servicer advances on the Receivables
pursuant to Section 5.04 of the Transfer and Servicing Agreement.
"Affiliate" means, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Amount Financed" means with respect to a Receivable, the amount advanced
toward the purchase price of the Financed Vehicles and any related costs.
"Annual Percentage Rate" or "APR" of a Receivable means the annual rate of
finance charges stated in the related Contract.
"Authorized Officer" means, with respect to the Issuer, any officer of the
Owner Trustee who is authorized to act for the Owner Trustee in matters relating
to the Issuer and who is identified on the list of Authorized Officers delivered
by the Owner Trustee to the Indenture Trustee on the Closing Date (as such list
may be modified or supplemented from time to time thereafter).
"Basic Documents" means the Transfer and Servicing Agreement, the DFS/Ganis
Transfer Agreement, the Ganis/Depositor Transfer Agreement, the Indenture, the
Trust Agreement, the Note Depository Agreement and the Certificate Depository
Agreement and the other documents and certificates delivered in connection
therewith.
"Benefit Plan" has the meaning assigned to such term in Section 11.13 of
the Trust Agreement.
"Book-Entry Certificates" means a beneficial interest in the Certificates,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 3.11 of the Trust Agreement.
"Book-Entry Notes" means a beneficial interest in the Notes, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 2.10 of the Indenture.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions or trust companies in the State of New York are
authorized or obligated by law, regulation or executive order to remain closed.
["Business Trust Statute" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as the same may be amended from time to
time.]
"Certificate" means a Trust Certificate.
"Certificate Balance" equals, initially, the Initial Certificate Balance
and, thereafter, equals the Initial Certificate Balance reduced by all amounts
allocable to principal previously distributed to Certificateholders.
"Certificate Depository Agreement" means the agreement dated the Closing
Date among the Trust, the Owner Trustee, and The Depository Trust Company, as
the initial Clearing Agency, relating to the Certificates, as the same may be
amended, amended and restated or otherwise modified from time to time.
"Certificate Distribution Account" has the meaning specified in Section
5.01 of the Trust Agreement.
"Certificate Owner" means, with respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate, as reflected
on the books of the Clearing Agency or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency Participant or
as an indirect participant, in each case in accordance with the rules of such
Clearing Agency).
"Certificate Register" and "Certificate Registrar" means the register
mentioned in and the registrar appointed pursuant to Section 3.04 of the Trust
Agreement.
["Certificate of Trust" means the Certificate of Trust in the form of
Exhibit B to the Trust Agreement filed for the Trust pursuant to Section 3810(a)
of the Business Trust Statute.]
"Certificate Pool Factor" means, as of the close of business on the last
day of a Collection Period, a seven-digit decimal figure equal to the
Certificate Balance (after giving effect to any reductions therein to be made on
the immediately following Monthly Payment
2
Date) divided by the Initial Certificate Balance. The Certificate Pool Factor
shall be 1.0000000 as of the Closing Date; thereafter, the Certificate Pool
Factor shall decline to reflect reductions in the Certificate Balance.
"Certificateholder" means the Holder of a Certificate.
"Certificateholders' Distributable Amount" means, with respect to any
Monthly Payment Date, the sum of the Certificateholders' Principal Distributable
Amount and the Certificateholders' Interest Distributable Amount for such date.
"Certificateholders' Excess Distributable Amount" means, with respect to
each Monthly Payment Date, the lesser of (i) the Accelerated Principal
Distribution Amount and (ii) the amount, if any, necessary after application of
the Certificateholders' Regular Principal Distribution Amount for such Monthly
Payment Date, to reduce the aggregate principal amount of the Certificates so
that the Overcollateralization Amount shall equal the Targeted
Overcollateralization amount after application of principal payments for such
Monthly Payment Date.
"Certificateholders' Interest Carryover Shortfall" means, with respect to
any Monthly Payment Date, the excess of the sum of the Certificateholders'
Monthly Interest Distributable Amount for the preceding Monthly Payment Date and
any outstanding Certificateholders' Interest Carryover Shortfall on such
preceding Monthly Payment Date, over the amount in respect of interest that is
actually deposited in the Certificate Distribution Account on such preceding
Monthly Payment Date, plus 30 days' interest on such excess, to the extent
permitted by law, at the Pass-Through Rate.
"Certificateholders' Interest Distributable Amount" means, with respect to
any Monthly Payment Date, the sum of the Certificateholders' Monthly Interest
Distributable Amount for such Monthly Payment Date and the Certificateholders'
Interest Carryover Shortfall for such Monthly Payment Date. Interest with
respect to the Certificates shall be computed on the basis of a 360-day year
consisting of twelve 30-day months for all purposes of the Transfer and
Servicing Agreement and the other Basic Documents.
"Certificateholders' Monthly Interest Distributable Amount" means, with
respect to any Monthly Payment Date, 30 days of interest (or, in the case of the
first Monthly Payment Date, interest accrued from and including the Closing
Date) at the Pass-Through Rate on the Certificate Balance on the last day of the
preceding Collection Period (or, in the case of the first Monthly Payment Date,
on the Closing Date).
"Certificateholders' Monthly Principal Distributable Amount" means, with
respect to any Monthly Payment Date prior to the Monthly Payment Date on which
the Notes are paid in full, zero; and with respect to any Monthly Payment Date
on or after the Monthly Payment Date on which the Notes are paid in full, the
lesser of (i) the sum of the Regular Principal Distribution Amount plus the
Accelerated Principal Distribution Amount for such Monthly Payment Date and
3
(ii) the amount, if any, necessary to reduce the aggregate principal amount of
the Certificates so that the Overcollateralization Amount shall equal the
Targeted Overcollateralization Amount after application of principal payments
for such Monthly Payment Date (less, on the Monthly Payment Date on which the
Notes are paid in full, the portion thereof payable as the Noteholders' Monthly
Principal Distributable Amount on the Notes).
"Certificateholders' Principal Carryover Shortfall" means, as of the close
of any Monthly Payment Date, the excess of the Certificateholders' Monthly
Principal Distributable Amount and any outstanding Certificateholders' Principal
Carryover Shortfall from the preceding Monthly Payment Date, over the amount in
respect of principal that is actually deposited in the Certificate Distribution
Account on such current Monthly Payment Date.
"Certificateholders' Principal Distributable Amount" means, with respect to
any Monthly Payment Date, the sum of the Certificateholders' Monthly Principal
Distributable Amount for such Monthly Payment Date and the Certificateholders'
Principal Carryover Shortfall as of the close of the preceding Monthly Payment
Date; provided, however, that the Certificateholders' Principal Distributable
Amount shall not exceed the Certificate Balance. In addition, on the Final
Scheduled Payment Date, the principal required to be included in the
Certificateholders' Principal Distributable Amount shall include the lesser of
(a) any principal due and remaining unpaid on each Receivable, in each case, in
the Trust as of the Final Stated Maturity Date or (b) the amount that is
necessary (after giving effect to the other amounts to be deposited in the
Certificate Distribution Account on such Monthly Payment Date and allocable to
principal) to reduce the Certificate Balance to zero.
"Certificateholders' Regular Principal Distributable Amount" means, with
respect to each Monthly Payment Date, the lesser of (i) the Regular Principal
Distribution Amount and (ii) the amount, if any, necessary to reduce the
aggregate principal amount of the Certificates so that the Overcollateralization
Amount shall equal the Targeted Overcollateralization Amount after application
of principal payments for such Monthly Payment Date.
"Certificates" means [ ]% Asset Backed Certificates issued pursuant to
the Trust Agreement.
"Class" means any one of the classes of Notes.
"Class [ ] Interest Account" means the account designated as such,
established and maintained pursuant to Section 5.01(a)(iv) of the Transfer and
Servicing Agreement.
"Class [ ] Interest Rate" means [ ]% per annum (computed on the
basis of the actual number of days in each Interest Accrual Period divided by
360).
"Class [ ] Interest Rate" means [ ]% per annum (computed on the
basis of a 360-day year consisting of twelve 30-day months).
4
"Class [ ] Interest Rate" means [ ]% per annum (computed on the basis
of a 360-day year consisting of twelve 30-day months).
"Class [ ] Interest Rate" means [ ]% per annum (computed on the basis
of a 360-day year consisting of twelve 30-day months).
"Class [ ] Interest Rate" means [ ]% per annum (computed on the basis
of a 360-day year consisting of twelve 30-day months).
"Class [ ] Interest Rate" means [ ]% per annum (computed on the basis
of a 360-day year consisting of twelve 30-day months).
"Class [ ] Interest Rate" means [ ]% per annum (computed on the basis
of a 360-day year consisting of twelve 30-day months).
"Class [ ] Interest Rate" means [ ]% per annum (computed on the basis
of a 360-day year consisting of twelve 30-day months).
"Class [ ] Interest Rate" means [ ]% per annum (computed on the basis
of a 360-day year consisting of twelve 30-day months).
"Class [ ] Interest Rate" means [ ]% per annum (computed on the basis
of a 360-day year consisting of twelve 30-day months).
"Class [ ] Noteholder" means the Person in whose name a Class [ ] Note
is registered in the Note Register.
"Class [ ] Noteholder" means the Person in whose name a Class [ ] Note
is registered in the Note Register.
"Class [ ] Noteholder" means the Person in whose name a Class [ ] Note
is registered in the Note Register.
"Class [ ] Noteholder" means the Person in whose name a Class [ ] Note
is registered in the Note Register.
"Class [ ] Noteholder" means the Person in whose name a Class [ ] Note
is registered in the Note Register.
"Class [ ] Noteholder" means the Person in whose name a Class [ ] Note
is registered in the Note Register.
"Class [ ] Noteholder" means the Person in whose name a Class [ ] Note
is registered in the Note Register.
5
"Class [ ] Noteholder" means the Person in whose name a Class [ ]
Note is registered in the Note Register.
"Class [ ] Noteholder" means the Person in whose name a Class [ ]
Note is registered in the Note Register.
"Class [ ] Noteholder" means the Person in whose name a Class [ ]
Note is registered in the Note Register.
"Class A Notes" means the Class [ ] Notes, Class [ ] Notes, Class
[ ] Notes, Class [ ] Notes, Class [ ] Notes, Class [ ] Notes, Class
[ ] Notes, Class [ ] Notes, Class [ ] Notes and Class [ ] Notes.
"Class [ ] Notes" means the [ ]% Asset Backed Notes, Class [ ],
substantially in the form of Exhibit A to the Indenture.
"Class [ ] Notes" means the [ ]% Asset Backed Notes, Class [ ],
substantially in the form of Exhibit A to the Indenture.
"Class [ ] Notes" means the [ ]% Asset Backed Notes, Class [ ],
substantially in the form of Exhibit A to the Indenture.
"Class [ ] Notes" means the [ ]% Asset Backed Notes, Class [ ],
substantially in the form of Exhibit A to the Indenture.
"Class [ ] Notes" means the [ ]% Asset Backed Notes, Class [ ],
substantially in the form of Exhibit A to the Indenture.
"Class [ ] Notes" means the [ ]% Asset Backed Notes, Class [ ],
substantially in the form of Exhibit A to the Indenture.
"Class [ ] Notes" means the [ ]% Asset Backed Notes, Class [ ],
substantially in the form of Exhibit A to the Indenture.
"Class [ ] Notes" means the [ ]% Asset Backed Notes, Class [ ],
substantially in the form of Exhibit A to the Indenture.
"Class [ ] Notes" means the [ ]% Asset Backed Notes, Class [ ],
substantially in the form of Exhibit A to the Indenture.
"Class [ ] Notes" means the [ ]% Asset Backed Notes, Class [ ],
substantially in the form of Exhibit A to the Indenture.
6
"Class [ ] Principal Account" means the account designated as such,
established and maintained pursuant to Section 5.01(a)(v) of the Transfer and
Servicing Agreement.
"Class [ ] Stated Maturity Date" means [ ].
"Class [ ] Stated Maturity Date" means [ ].
"Class [ ] Stated Maturity Date" means [ ].
"Class [ ] Stated Maturity Date" means [ ].
"Class [ ] Stated Maturity Date" means [ ].
"Class [ ] Stated Maturity Date" means [ ].
"Class [ ] Stated Maturity Date" means [ ].
"Class [ ] Stated Maturity Date" means [ ].
"Class [ ] Stated Maturity Date" means [ ].
"Class [ ] Stated Maturity Date" means [ ].
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date" means [ ], 199_.
"Code" means the Internal Revenue Code of 1986, as amended, and Treasury
Regulations promulgated thereunder.
"Collateral" has the meaning specified in the Granting Clause of the
Indenture.
"Collection Account" means the account designated as such, established and
maintained pursuant to Section 5.01(a)(i) of the Transfer and Servicing
Agreement.
"Collection Period" means a calendar month. Any amount stated as of the
last day of a Collection Period or as of the first day of a Collection Period
shall give effect to the following calculations as determined as of the close of
business on such last day: (1) all applications of
7
collections, (2) all Advances and reductions of Outstanding Advances and (3) all
distributions to be made on the following Monthly Payment Date.
"Commission" has the meaning specified in Section 1.02 of the Indenture.
"Computer Tape" means the computer tape containing information on the
[entire portfolio of recreational vehicle receivables of DFS and the Transferor]
delivered by DFS to the Issuer.
"Contract" means a retail installment sale contract or installment loan
contract relating to a recreational vehicle.
"Conveyed Property" has the meaning specified in Section 2.02 of the
Transfer and Servicing Agreement.
"Corporate Trust Office" or "Corporate Trust Administration Department"
means (i) the office of the Indenture Trustee at which at any particular time
its corporate trust business shall be principally administered, which office at
the date of the execution of the Indenture is located at [ ];
or at such other address as the Indenture Trustee may designate from time to
time by notice to the Noteholders and the Depositor, or the principal corporate
trust office of any successor Indenture Trustee (of which address such successor
Indenture Trustee shall notify the Noteholders and the Depositor) and (ii) with
respect to the Owner Trustee, the principal corporate trust office of the Owner
Trustee located at [ ] or at such other address as the
Owner Trustee may designate by notice to the Certificate Owners, the Indenture
Trustee, the Noteholders, the Certificateholders and the Depositor, or the
principal corporate trust office of any successor Owner Trustee (of which
address such successor Owner Trustee shall notify the Certificateholders, the
Indenture Trustee and the Depositor).
"Cutoff Date" means [ ], 199_.
"Dealer" means the dealer which sold a Financed Vehicle to an Obligor and,
if applicable, which originated and assigned the related Receivable to DFS or
the Transferor, as the case may be.
"Dealer Agreement": An agreement between a Dealer and DFS or the
Transferor, as the case may be, pursuant to which DFS or the Transferor, as the
case may be, purchased one or more Receivables.
"Default" means any occurrence that is, or with notice or the lapse of time
or both would become, an Event of Default.
"Defaulted Receivable" means a Receivable as to which (a) all or any part
of a scheduled payment is 120 days past due and the Servicer has not repossessed
the related Financed Vehicle
8
or (b) the Servicer has repossessed and liquidated the related Financed Vehicle,
whichever occurs first.
"Definitive Notes" has the meaning specified in Section 2.10 of the
Indenture.
"Definitive Trust Certificates" shall have the meaning specified in Section
3.11 of the Trust Agreement.
"Delivery" when used with respect to Trust Account Property means:
(1) with respect to bankers' acceptances, commercial paper, negotiable
certificates of deposit and other obligations that constitute "instruments"
within the meaning of Section 9-105(1)(i) of the UCC and are susceptible of
physical delivery, transfer thereof to the Indenture Trustee or its nominee or
custodian by physical delivery to the Indenture Trustee or its nominee or
custodian endorsed to, or registered in the name of, the Indenture Trustee or
its nominee or custodian or endorsed in blank, and, with respect to a
certificated security (as defined in Section 8-102 of the UCC) transfer thereof
(i) by delivery of such certificated security endorsed to, or registered in the
name of, the Indenture Trustee or its nominee or custodian or endorsed in blank
to a financial intermediary (as defined in Section 8-313 of the UCC) and the
making by such financial intermediary of entries on its books and records
identifying such certificated securities as belonging to the Indenture Trustee
or its nominee or custodian and the sending by such financial intermediary of a
confirmation of the purchase of such certificated security by the Indenture
Trustee or its nominee or custodian, or (ii) by delivery thereof to a "clearing
corporation" (as defined in Section 8-102(3) of the UCC) and the making by such
clearing corporation of appropriate entries on its books reducing the
appropriate securities account of the transferor and increasing the appropriate
securities account of a financial intermediary by the amount of such
certificated security, the identification by the clearing corporation of the
certificated securities for the sole and exclusive account of the financial
intermediary, the maintenance of such certificated securities by such clearing
corporation or a "custodian bank" (as defined in Section 8-102(4) of the UCC) or
the nominee of either subject to the clearing corporation's exclusive control,
the sending of a confirmation by the financial intermediary of the purchase by
the Indenture Trustee or its nominee or custodian of such securities and the
making by such financial intermediary of entries on its books and records
identifying such certificated securities as belonging to the Indenture Trustee
or its nominee or custodian (all of the foregoing, "Physical Property"), and, in
any event, any such Physical Property in registered form shall be in the name of
the Indenture Trustee or its nominee or custodian; and such additional or
alternative procedures as may hereafter become appropriate to effect the
complete transfer of ownership of any such Trust Account Property (as defined
herein) to the Indenture Trustee or its nominee or custodian, consistent with
changes in applicable law or regulations or the interpretation thereof;
(2) with respect to any securities issued by the U.S. Treasury, the Federal
Home Loan Mortgage Corporation or by the Federal National Mortgage Association
that is a book-entry security held through the Federal Reserve System pursuant
to Federal book-entry regulations, the
9
following procedures, all in accordance with applicable law, including
applicable Federal regulations and Articles 8 and 9 of the UCC: book-entry
registration of such Trust Account Property to an appropriate book-entry account
maintained with a Federal Reserve Bank by a financial intermediary which is also
a "depository" pursuant to applicable Federal regulations and issuance by such
financial intermediary of a deposit advice or other written confirmation of such
book-entry registration to the Indenture Trustee or its nominee or custodian of
the purchase by the Indenture Trustee or its nominee or custodian of such book-
entry securities; the making by such financial intermediary of entries in its
books and records identifying such book-entry security held through the Federal
Reserve System pursuant to Federal book-entry regulations as belonging to the
Indenture Trustee or its nominee or custodian and indicating that such custodian
holds such Trust Account Property solely as agent for the Indenture Trustee or
its nominee or custodian; and such additional or alternative procedures as may
hereafter become appropriate to effect complete transfer of ownership of any
such Trust Account Property to the Indenture Trustee or its nominee or
custodian, consistent with changes in applicable law or regulations or the
interpretation thereof; and
(3) with respect to any item of Trust Account Property that is an
uncertificated security under Article 8 of the UCC and that is not governed by
clause (b) above, registration on the books and records of the issuer thereof in
the name of the financial intermediary, the sending of a confirmation by the
financial intermediary of the purchase by the Indenture Trustee or its nominee
or custodian of such uncertificated security and the making by such financial
intermediary of entries on its books and records identifying such
uncertificated certificates as belonging to the Indenture Trustee or its nominee
or custodian.
"Depositor" means Deutsche Recreational Asset Funding Corporation, in its
capacity as depositor under the Transfer and Servicing Agreement, and its
successor in interest.
"Determination Date" means, with respect to any Monthly Payment Date, the
Business Day immediately preceding such Monthly Payment Date.
"DFS" means Deutsche Financial Services Corporation, a Nevada corporation,
or its successors in interest.
"DFS Contributed Property" has the meaning specified in Section 2.01 of the
DFS/Ganis Transfer Agreement.
"DFS Receivables" has the meaning specified in Section 2.01 of the
DFS/Ganis Transfer Agreement.
"DFS/Ganis Transfer Agreement" means the DFS/Ganis Transfer Agreement
between DFS and Ganis, substantially in the form of Exhibit D to the Transfer
and Servicing Agreement, as amended, amended and restated or otherwise modified
from time to time.
10
"Eligible Deposit Account" means either (1) a segregated account with an
Eligible Institution or (2) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States of America or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any of the
securities of such depository institution shall have a credit rating from each
Rating Agency in one of its generic rating categories that signifies investment
grade.
"Eligible Institution" means (1) the corporate trust department of the
Indenture Trustee or the Owner Trustee, or (2) a depository institution
organized under the laws of the United States of America or any one of the
states thereof or the District of Columbia (or any domestic branch of a foreign
bank), (i) which has either (A) a long-term unsecured debt rating of AAA or
better by Standard & Poor's and A1 or better by Moody's or (B) a certificate of
deposit rating of A-1+ by Standard & Poor's and P-1 or better by Moody's, or any
other long-term, short-term or certificate of deposit rating acceptable to the
Rating Agencies and (ii) whose deposits are insured by the FDIC. If so
qualified, the Indenture Trustee or the Owner Trustee may be considered an
Eligible Institution for the purposes of clause (2) of this definition.
"Eligible Investments" means book-entry securities, negotiable instruments
or securities represented by instruments in bearer or registered form which
evidence:
(1) direct obligations of, and obligations fully guaranteed as to the full
and timely payment by, the United States of America;
(2) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of the
United States of America or any state thereof (or any domestic branch of a
foreign bank) and subject to supervision and examination by Federal or State
banking or depository institution authorities; provided, however, that at the
time of the investment or contractual commitment to invest therein, the
commercial paper or other short-term unsecured debt obligations (other than such
obligations the rating of which is based on the credit of a Person other than
such depository institution or trust company) thereof shall have a credit rating
from each of the Rating Agencies in the highest investment category granted
thereby;
(3) commercial paper having, at the time of the investment or contractual
commitment to invest therein, a rating from each of the Rating Agencies in the
highest investment category granted thereby;
(4) investments in money market funds having a rating from each of the
Rating Agencies in the highest investment category granted thereby (including
funds for which the Indenture Trustee or the Owner Trustee or any of their
respective Affiliates is investment manager or advisor);
11
(5) bankers' acceptances issued by any depository institution or trust
company referred to in clause (2) above;
(6) repurchase obligations with respect to any security that is a direct
obligation of, or fully guaranteed by, the United States of America or any
agency or instrumentality thereof the obligations of which are backed by the
full faith and credit of the United States of America, in either case entered
into with a depository institution or trust company (acting as principal)
described in clause (2);
(7) repurchase obligations with respect to any security or whole loan,
entered into with (i) a depository institution or trust company (acting as
principal) described in clause (2) above (except that the rating referred to in
the proviso in such clause (b) shall be A-1 or higher in the case of Standard &
Poor's) (such depository institution or trust company being referred to in this
definition as a "financial institution"), (ii) a broker/dealer (acting as
principal) registered as a broker or dealer under Section 15 of the Exchange Act
(a "broker/dealer") the unsecured short-term debt obligations of which are rated
P-1 by Moody's and at least A-1 by Standard & Poor's at the time of entering
into such repurchase obligation (a "rated broker/dealer"), (iii) an unrated
broker/dealer (an "unrated broker/dealer"), acting as principal, that is a
wholly-owned subsidiary of a non-bank holding company the unsecured short-term
debt obligations of which are rated P-1 by Moody's and at least A-1 by Standard
& Poor's at the time of entering into such repurchase obligation (a "Rated
Holding Company") or (iv) an unrated subsidiary (a "Guaranteed Counterparty"),
acting as principal, that is a wholly-owned subsidiary of a direct or indirect
parent Rated Holding Company, which guarantees such subsidiary's obligations
under such repurchase agreement; provided that the following conditions are
satisfied:
(A) the aggregate amount of funds invested in repurchase obligations
of a financial institution, a rated broker/dealer, an unrated broker/dealer
or Guaranteed Counterparty in respect of which the Standard & Poor's
unsecured short-term ratings are A-1 (in the case of an unrated
broker/dealer or Guaranteed Counterparty, such rating being that of the
related Rated Holding Company) shall not exceed 20% of the sum of the then
outstanding principal balance of the Notes and the Certificate Balance
(there being no limit on the amount of funds that may be invested in
repurchase obligations in respect of which such Standard & Poor's rating is
A-1+ (in the case of an unrated broker/dealer or Guaranteed Counterparty,
such rating being that of the related Rated Holding Company));
(B) in the case of the Reserve Account, the rating from Standard &
Poor's in respect of the unsecured short-term debt obligations of the
financial institution, rated broker/dealer, unrated broker/dealer or
Guaranteed Counterparty (in the case of an unrated broker/dealer or
Guaranteed Counterparty, such rating being that of the related Rated
Holding Company) shall be A-1+;
12
(C) the repurchase obligation must mature within 30 days of the date
on which the Indenture Trustee or the Issuer, as applicable, enters into
such repurchase obligation;
(D) the repurchase obligation shall not be subordinated to any other
obligation of the related financial institution, rated broker/dealer,
unrated broker/dealer or Guaranteed Counterparty;
(E) the collateral subject to the repurchase obligation is held, in
the appropriate form, by a custodial bank on behalf of the Indenture
Trustee or the Issuer, as applicable;
(F) the repurchase obligation shall require that the collateral
subject thereto shall be marked to market daily;
(G) in the case of a repurchase obligation of a Guaranteed
Counterparty, the following conditions shall also be satisfied:
(i) the Indenture Trustee or the Issuer, as applicable, shall
have received an opinion of counsel (which may be in- house counsel)
to the effect that the guarantee of the related Rated Holding Company
is a legal, valid and binding agreement of the Rated Holding Company,
enforceable in accordance with its terms, subject as to enforceability
to bankruptcy, insolvency, reorganization and moratorium or other
similar laws affecting creditors' rights generally and to general
equitable principles;
(ii) the Indenture Trustee or the Issuer, as applicable, shall
have received (x) an incumbency certificate for the signer of such
guarantee, certified by an officer of such Rated Holding Company and
(y) a resolution, certified by an officer of the Rated Holding
Company, of the board of directors (or applicable committee thereof)
of the Rated Holding Company authorizing the execution, delivery and
performance of such guarantee by the Rated Holding Company;
(iii) the only conditions to the obligation of such Rated
Holding Company to pay on behalf of the Guaranteed Counterparty shall
be that the Guaranteed Counterparty shall not have paid under such
repurchase obligation when required (it being understood that no
notice to, demand on or other action in respect of the Guaranteed
Counterparty is necessary) and that the Indenture Trustee or the
Issuer shall make a demand on the Rated Holding Company to make the
payment due under such guarantee;
(iv) the guarantee of the Rated Holding Company shall be
irrevocable with respect to such repurchase obligation and shall not
be subordinated to any other obligation of the Rated Holding Company;
and
13
(v) each of Standard & Poor's and Moody's has confirmed in
writing to the Indenture Trustee or Issuer, as applicable, that it has
reviewed the form of the guarantee of the Rated Holding Company and
has determined that the issuance of such guarantee shall not result in
the downgrade or withdrawal of the ratings assigned to the Notes.
(H) the repurchase obligation shall require that the repurchase
obligation be overcollateralized and shall provide that, upon any failure
to maintain such overcollateralization, the repurchase obligation shall
become due and payable, and unless the repurchase obligation is satisfied
immediately, the collateral subject to the repurchase agreement shall be
liquidated and the proceeds applied to satisfy the unsatisfied portion of
the repurchase obligation;
(8) any other investment with respect to which the Issuer or the Servicer
has received written notification from the Rating Agencies that the acquisition
of such investment as an Eligible Investment shall not result in a withdrawal or
downgrading of the ratings on the Notes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" has the meaning specified in Section 5.01 of the
Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
Executive Vice President, any Vice President, the Secretary or the Treasurer of
such corporation; and with respect to any partnership, any general partner
thereof.
"Expenses" has the meaning specified in Section 8.02 of the Trust
Agreement.
"FDIC" means the Federal Deposit Insurance Corporation or any successor
organization.
"Fidelity Bond" means a fidelity bond to be maintained by the Servicer
pursuant to Section 4.15 of the Transfer and Servicing Agreement.
"Final Certification" has the meaning specified in Section 3.04 of the
Transfer and Servicing Agreement.
"Final Scheduled Maturity Date" means the Monthly Payment Date immediately
following the scheduled maturity date of the Receivables.
"Final Scheduled Payment Date" means [____________].
14
"Financed Vehicle" means a new or used recreational vehicle, together with
all accessions thereto, securing an Obligor's indebtedness under the respective
Receivable.
"Ganis" means Ganis Credit Corporation, a Delaware corporation, or its
successors in interest.
"Ganis/Depositor Transfer Agreement" means the Ganis/Depositor Transfer
Agreement, substantially in the form of Exhibit E to the Transfer and Servicing
Agreement, as the same may be amended, amended and restated or otherwise
modified from time to time.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create, and xxxxx x xxxx upon and a security
interest in and a right of set-off against pursuant to the Indenture. A Grant of
the Collateral or of any other agreement or instrument shall include all rights,
powers and options (but none of the obligations) of the granting party
thereunder, including the immediate and continuing right to claim for, collect,
receive and give receipt for principal and interest payments in respect of the
Collateral and all other moneys payable thereunder, to give and receive notices
and other communications, to make waivers or other agreements, to exercise all
rights and options, to bring Proceedings in the name of the granting party or
otherwise, and generally to do and receive anything that the granting party is
or may be entitled to do or receive thereunder or with respect thereto.
"Holder" means the Person in whose name a Note or Certificate is registered
on the Note Register or Certificate Register, as applicable.
"Indemnified Parties" shall have the meaning specified in Section 8.02 of
the Trust Agreement.
"Indenture" means the Indenture dated as of the Closing Date between the
Issuer and the Indenture Trustee, as the same may be amended, amended and
restated, supplemented or otherwise modified from time to time.
"Indenture Trustee" means [_______________], a New York corporation, as
Indenture Trustee under the Indenture, or any successor Indenture Trustee under
the Indenture.
"Independent" means, when used with respect to any specified Person, that
the Person (a) is in fact independent of the Issuer, any other obligor on the
Notes, the Depositor and any Affiliate of any of the foregoing Persons, (b) does
not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Depositor or any Affiliate
of any of the foregoing Persons and (c) is not connected with the Issuer, any
such other obligor, the Depositor or any Affiliate of any of the foregoing
Persons as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
"Independent Certificate" means a certificate or opinion to be delivered to
the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable
15
requirements of Section 11.01 of the Indenture, made by an Independent appraiser
or other expert appointed by an Issuer Order, and such opinion or certificate
shall state that the signer has read the definition of "Independent" in the
Indenture and that the signer is Independent within the meaning thereof.
"Independent Director" has the meaning specified in the articles of
incorporation of the Depositor.
"Initial Certificate Balance" means $[__________].
"Initial Pool Balance" means $[__________].
"Insolvency Event" means, with respect to a specified Person, (1) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in an
involuntary case under any applicable federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for
such Person or for any substantial part of its property, or ordering the
winding-up or liquidation of such Person's affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; or (2)
the commencement by such Person of a voluntary case under any applicable federal
or state bankruptcy, insolvency or other similar law now or hereafter in effect,
or the consent by such Person to the entry of an order for relief in an
involuntary case under any such law, or the consent by such Person to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or the making by such Person of any general
assignment for the benefit of creditors, or the failure by such Person generally
to pay its debts as such debts become due, or the taking of action by such
Person in furtherance of any of the foregoing.
"Insurance Policy" means, with respect to a Receivable, any insurance
policy benefiting the holder of the Receivable providing loss or physical
damage, credit life, credit disability, theft, mechanical breakdown or similar
coverage with respect to the Financed Vehicle or the Obligor.
"Interest Accrual Period" means the calendar month preceding each Monthly
Payment Date (or in the case of the first Monthly Payment Date, the period from
the Closing Date until [_____], 199_) and with respect to the Class [__] Notes,
the period from (and including) the immediately preceding Monthly Payment Date
(or in the case of the first Monthly Payment Date, from and including the
Closing Date) to and including the day preceding the applicable Monthly Payment
Date.
"Interest Rate" means the interest rate for any one or more of the Classes
of Notes, or collectively for all Classes of Notes, in each case as the context
requires.
"Investment Earnings" means, with respect to any Monthly Payment Date, the
realized investment earnings (net of losses and investment expenses) on amounts
on deposit in the Trust
16
Accounts to be distributed on such Monthly Payment Date pursuant to Section
5.01(b) of the Transfer and Servicing Agreement.
"Issuer" means Distribution Financial Services [RV/Boat] Trust 199_-_, a
Delaware business trust, until a successor replaces it and, thereafter, means
the successor and, for purposes of any provision contained herein and required
by the TIA, each other obligor on the Notes.
"Issuer Order" or "Issuer Request" means a written order or request signed
in the name of the Issuer by any one of its Authorized Officers and delivered to
the Indenture Trustee.
"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than tax liens, mechanics' liens and any liens
that attach to a Receivable by operation of law as a result of any act or
omission by the related Obligor.
"Lien Certificate": With respect to a Financed Vehicle, an original
certificate of title, certificate of lien or other notification issued by the
Registrar of Titles of the applicable State to a secured party which indicates
that the lien of the secured party on the Financed Vehicle is recorded on the
original certificate of title. In any jurisdiction in which the original
certificate of title is required to be given to the Obligor, the term "Lien
Certificate" means only a certificate or notification issued to a secured party
by such Registrar of Titles.
"Liquidation Proceeds" means, with respect to any Defaulted Receivable, the
monies collected in respect thereof, from whatever source, on a Defaulted
Receivable [during the Collection Period in which such Receivable became a
Defaulted Receivable], net of the sum of any amounts of expenses incurred by the
Servicer in connection with such liquidation and any amounts required by law to
be remitted to the Obligor on such Defaulted Receivable.
"Monthly Payment Date" means, with respect to each Collection Period, the
15th day of the following month or, if such day is not a Business Day, the
immediately following Business Day, commencing on [__], 199_.
"Moody's" means Xxxxx'x Investors Service, Inc., or its successor.
"Nonquarterly Payment Date" means a Monthly Payment Date that is not a
Quarterly Payment Date.
"Note" means any Class A Note.
"Note Depository Agreement" means the agreement dated the Closing Date
among the Trust, the Indenture Trustee, and The Depository Trust Company, as the
initial Clearing Agency, relating to the Notes, as the same may be amended,
amended and restated or otherwise modified from time to time.
17
"Note Distribution Account" means the account designated as such,
established and maintained pursuant to Section 5.01 of the Transfer and
Servicing Agreement.
"Note Owner" means, with respect to a Book-Entry Note, the Person who is
the beneficial owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing Agency).
"Note Pool Factor" means, with respect to each Class of Notes as of the
close of business on the last day of a Collection Period, a seven-digit decimal
figure equal to the outstanding principal balance of such Class of Notes (after
giving effect to any reductions thereof to be made on the immediately following
Monthly Payment Date) divided by the original outstanding principal balance of
such Class of Notes. The Note Pool Factor shall be 1.0000000 as of the Closing
Date; thereafter, the Note Pool Factor shall decline to reflect reductions in
the outstanding principal balance of such Class of Notes.
"Note Register" and "Note Registrar" have the respective meanings specified
in Section 2.04 of the Indenture.
"Noteholder" means the Person in whose name a Note is registered on the
Note Register.
"Noteholders' Distributable Amount" means, with respect to any Monthly
Payment Date, the sum of the Noteholders' Principal Distributable Amount and the
Noteholders' Interest Distributable Amount for such Monthly Payment Date.
"Noteholders' Excess Distributable Amount" means, with respect to each
Monthly Payment Date, the lesser of (i) the Accelerated Principal Distribution
Amount and (ii) the amount, if any, necessary after application of the
Noteholders' Regular Principal Distribution amount for such Monthly Payment
Date, to reduce the aggregate principal amount of the Notes so that the
Overcollateralization Amount shall equal the Targeted Overcollateralization
Amount after application of principal payments for such Monthly Payment Date.
"Noteholders' Interest Carryover Shortfall" means, with respect to any
Monthly Payment Date, the excess of the sum of the Noteholders' Monthly Interest
Distributable Amount for the preceding Monthly Payment Date and any outstanding
Noteholders' Interest Carryover Shortfall on such preceding Monthly Payment
Date, over the amount in respect of interest that is actually deposited in the
Note Distribution Account on such preceding Monthly Payment Date, plus interest
on the amount of interest due but not paid to Noteholders on the preceding
Monthly Payment Date, to the extent permitted by law, at the respective Interest
Rates borne by each Class of the Notes for the related Interest Accrual Period.
"Noteholders' Interest Distributable Amount" means, with respect to any
Monthly Payment Date, the sum of the Noteholders' Monthly Interest Distributable
Amount for such
18
Monthly Payment Date and the Noteholders' Interest Carryover Shortfall for such
Monthly Payment Date. For all purposes of the Transfer and Servicing Agreement
and the other Basic Documents, interest with respect to the Notes shall be
computed on the basis of twelve 30-day months in a 360-day year except for the
Class [___] Notes which shall be calculated on the basis of the actual number
days in a year divided by 360.
"Noteholders' Monthly Interest Distributable Amount" means, with respect to
any Monthly Payment Date, interest accrued for the related Interest Accrual
Period on each Class of Notes at the respective Interest Rate for such Class on
the outstanding principal balance of the Notes of such Class on the immediately
preceding Monthly Payment Date (or, in the case of the first Monthly Payment
Date, the Closing Date), after giving effect to all distributions of principal
to the Noteholders of such Class on or prior to such Monthly Payment Date.
"Noteholders' Monthly Principal Distributable Amount" means, with respect
to any Monthly Payment Date, the lesser of (i) the sum of the Regular Principal
Distribution Amount plus the Accelerated Principal Distribution Amount for such
Monthly Payment Date and (ii) the amount, if any, necessary to reduce the
aggregate principal amount of the Notes so that the Overcollateralization Amount
shall equal the Targeted Overcollateralization Amount after application of
principal payments for such Monthly Payment Date.
"Noteholders' Principal Carryover Shortfall" means, as of the close of any
Monthly Payment Date, the excess of the Noteholders' Monthly Principal
Distributable Amount and any outstanding Noteholders' Principal Carryover
Shortfall from the preceding Monthly Payment Date, over the amount in respect of
principal that is actually deposited in the Note Distribution Account on such
current Monthly Payment Date.
"Noteholders' Principal Distributable Amount" means, with respect to any
Monthly Payment Date, the sum of the Noteholders' Monthly Principal
Distributable Amount for such Monthly Payment Date and the Noteholders'
Principal Carryover Shortfall as of the close of the preceding Monthly Payment
Date; provided, however, that the Noteholders' Principal Distributable Amount
shall not exceed the outstanding principal balance of the Notes. In addition,
(a) on the Class [___] Stated Maturity Date, the principal required to be
deposited in the Note Distribution Account shall include the amount necessary
(after giving effect to the other amounts to be deposited in the Note
Distribution Account on such Monthly Payment Date and allocable to principal) to
reduce the Outstanding Amount of the Class [___] Notes to zero; (b) on the Class
[___] Stated Maturity Date, the principal required to be deposited in the Note
Distribution Account shall include the amount necessary (after giving effect to
the other amounts to be deposited in the Note Distribution Account on such
Monthly Payment Date and allocable to principal) to reduce the Outstanding
Amount of the Class [___] Notes to zero; (c) on the Class [___] Stated Maturity
Date, the principal required to be deposited in the Note Distribution Account
shall include the amount necessary (after giving effect to the other amounts to
be deposited in the Note Distribution Account on such Monthly Payment Date and
allocable to principal) to reduce the Outstanding Amount of the Class [___]
Notes to zero; (d) on the Class [___] Stated Maturity Date, the principal
required to be deposited in the Note Distribution Account
19
shall include the amount necessary (after giving effect to the other amounts to
be deposited in the Note Distribution Account on such Monthly Payment Date and
allocable to principal) to reduce the Outstanding Amount of the Class [_____]
Notes to zero; (e) on the Class [_____] Stated Maturity Date, the principal
required to be deposited in the Note Distribution Account shall include the
amount necessary (after giving effect to the other amounts to be deposited in
the Note Distribution Account on such Monthly Payment Date and allocable to
principal) to reduce the Outstanding Amount of the Class [_____] Notes to zero;
(f) on the Class [_____] Stated Maturity Date, the principal required to be
deposited in the Note Distribution Account shall include the amount necessary
(after giving effect to the other amounts to be deposited in the Note
Distribution Account on such Monthly Payment Date and allocable to principal) to
reduce the Outstanding Amount of the Class [_____] Notes to zero; (g) on the
Class [_____] Stated Date, the principal required to be deposited in the Note
Distribution Account shall include the amount necessary (after giving effect to
the other amounts to be deposited in the Note Distribution Account on such
Monthly Payment Date and allocable to principal) to reduce the Outstanding
Amount of the Class [ ] Notes to zero; (h) on the Class [_____] Stated Maturity
Date, the principal required to be deposited in the Note Distribution Account
shall include the amount necessary (after giving effect to the other amounts to
be deposited in the Distribution Account on such Monthly Payment Date and
allocable to principal) to reduce the Outstanding Amount of the Class [_____]
Notes to zero; (i) on the Class [_____] Stated Maturity Date, the principal
required to be deposited in the Note Distribution Account shall include the
amount necessary (after giving effect to the other amounts to be deposited in
the Note Distribution Account on such Monthly Payment Date and allocable to
principal and all amounts available in the Class [_____] Principal Account) to
reduce the Outstanding Amount of the Class [_____] Notes to zero; and (j) on the
Class [ ] Stated Maturity Date, the principal required to be deposited in the
Note Distribution Account shall include the amount necessary (after giving
effect to the other amounts to be deposited in the Note Distribution Account on
such Monthly Payment Date and allocable to principal) to reduce the Outstanding
Amount of the Class [_____] Notes to zero.
"Noteholders' Regular Principal Distributable Amount" means, with respect
to each Monthly Payment Date, the lesser of (i) the Regular Principal
Distribution Amount and (ii) the amount, if any, necessary to reduce the
aggregate principal amount of the Notes so that the Overcollateralization Amount
shall equal the Targeted Overcollateralization Amount after application of
principal payments for such Monthly Payment Date.
"Notes" means the Class A Notes.
"Obligor" on a Receivable means the purchaser or co-purchasers of the
Financed Vehicle and any other Person who owes payments under the Receivable.
"Officer's Certificate" means a certificate signed by any Authorized
Officer of the Issuer, under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.01 of the Indenture,
and delivered to the Indenture Trustee and, with respect to any other Basic
Document, means a certificate signed by (i) any vice president and (ii) the
president, treasurer, assistant treasurer, secretary or assistant secretary of
the Servicer (or any
20
other party specified in any such Basic Document as delivering an Officer's
Certificate). Unless otherwise specified, any reference in the Indenture to an
Officer's Certificate shall be to an Officer's Certificate signed by any
Authorized Officer of the Issuer.
"Opinion of Counsel" means one or more written opinions of counsel who may,
except as otherwise expressly provided in the Indenture, be an employee of or
counsel to the Issuer, the Servicer or the Depositor and who shall be
satisfactory to the Indenture Trustee, and which opinion or opinions shall be
addressed to the Indenture Trustee as Indenture Trustee, shall comply with any
applicable requirements of Section 11.01 of the Indenture and shall be in form
satisfactory to the Indenture Trustee.
"Outstanding" means, as of the date of determination, all Notes theretofore
authenticated and delivered under the Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or delivered
to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture Trustee
or any Paying Agent in trust for the Holders of such Notes (provided,
however, that if such Notes are to be redeemed, notice of such redemption
has been duly given pursuant to the Indenture or provision for such notice
has been made, satisfactory to the Indenture Trustee); and
(iii) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to the Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes are
held by a bona fide purchaser;
provided, that in determining whether the Holders of the requisite
Outstanding Amount of the Notes have given any request, demand,
authorization, direction, notice, consent or waiver under any Basic
Document, Notes owned by the Issuer, any other obligor upon the Notes, the
Depositor or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Notes that the Indenture Trustee knows to be so owned shall be so
disregarded. Notes so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of
the Indenture Trustee the pledgee's right so to act with respect to such
Notes and that the pledgee is not the Issuer, any other obligor upon the
Notes, the Depositor or any Affiliate of any of the foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of all Notes, or
Class of Notes, as applicable, Outstanding at the date of determination.
21
"Outstanding Advances" on the Receivables means the sum, as of the close of
business on the last day of a Collection Period, of all Advances as reduced as
provided in Section 5.04 of the Transfer and Servicing Agreement.
"Overcollateralization Amount" means the amount which shall equal zero as
of the Closing Date and for any Monthly Payment Date shall equal the amount, if
any, by which the Pool Balance as of the end of the related Collection Period
exceeds the sum of the (i) aggregate principal amount of the Notes, (ii) the
aggregate amount on deposit in the Class [___] Principal Account and (iii) the
Certificate Balance, after giving effect to all distributions made in respect of
principal on such Monthly Payment Date.
"Owner Trust Estate" means all right, title and interest of the Trust in
and to the property and rights assigned to the Trust pursuant to Article II of
the Transfer and Servicing Agreement, all funds on deposit from time to time in
the Trust Accounts and all other property of the Trust from time to time,
including any rights of the Owner Trustee and the Trust pursuant to the Transfer
and Servicing Agreement.
"Owner Trustee" means [__________], a Delaware banking corporation, not in
its individual capacity but solely as owner trustee under the Trust Agreement,
and any successor Owner Trustee thereunder.
"Pass-Through Rate" means [_____]%.
"Paying Agent" means the Indenture Trustee or any other Person that meets
the eligibility standards for the Indenture Trustee specified in Section 6.11 of
the Indenture and is authorized by the Issuer to make payments to and
distributions from the Collection Account, the Note Distribution Account, the
Class [___] Interest Account and the Class [___] Principal Account, including
payments of principal of or interest on the Notes on behalf of the Issuer.
"Percentage Interest" means, as to any Certificate, the percentage
interest, specified on the face thereof, in the distributions on the
Certificates pursuant to the Trust Agreement.
"Person" means any individual, corporation, limited liability company,
estate, partnership, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
"Physical Property" has the meaning assigned to such term in the definition
of "Delivery" above.
"Pool Balance" means, as of the close of business on the last day of a
Collection Period, the aggregate Principal Balance of the Receivables as of such
day (excluding Purchased Receivables and Defaulted Receivables).
22
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.05 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Principal Balance" means, as of the close of business on the last day of a
Collection Period, the Amount Financed minus the sum of (i) the portion of all
payments made by or on behalf of the related Obligor on or prior to such date
and allocable to principal using the Simple Interest Method and (ii) any payment
of the Purchase Amount for such Receivable allocable to principal.
"Proceeding" means any suit in equity, action at law or other judicial or
administrative proceeding.
"Purchase Amount" means the amount, as of the close of business on the last
day of a Collection Period, required to prepay in full a Receivable under the
terms thereof including interest to the end of such Collection Period.
"Purchased Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by the Servicer pursuant to
Section 4.07 of the Transfer and Servicing Agreement, by DFS pursuant to Section
3.01 of the DFS/Ganis Transfer Agreement, by the Transferor pursuant to Section
3.01 of the Ganis/Depositor Transfer Agreement, or by the Depositor pursuant to
Section 3.01 of the Transfer and Servicing Agreement.
["Quarterly Payment Date" means each Monthly Payment Date occurring in
November, February, May and August, commencing [_________], 199_].
"Rating Agency" means Moody's and Standard & Poor's or, if no such
organization or successor is any longer in existence, a nationally recognized
statistical rating organization or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Indenture Trustee,
the Owner Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 Business Days (or such shorter period as
is acceptable to each Rating Agency) prior notice thereof and that each of the
Rating Agencies shall have notified the Depositor, the Servicer and the Issuer
in writing that such action shall not result in a reduction or withdrawal of the
then current rating of the Notes and the Certificates.
"Realized Losses" means, with respect to any Receivable that becomes a
Defaulted Receivable during any Collection Period, the excess of the Principal
Balance of such Defaulted Receivable over all Liquidation Proceeds or other
amounts [received by the Servicer with respect to such Receivable] to the extent
allocable to principal during such Collection Period.
23
"Receivable" means any Contract listed on Schedule A to the Transfer and
Servicing Agreement (which Schedule may be in the form of microfiche).
"Receivable Files" means the documents specified in Section 3.04 of the
Transfer and Servicing Agreement.
"Record Date" means, with respect to any Monthly Payment Date or Redemption
Date, the close of business on the day immediately preceding such Monthly
Payment Date or, if Definitive Certificates are issued pursuant to Section 3.13
of the Trust Agreement, the last day of the month preceding such Monthly Payment
Date and if Definitive Notes have been issued pursuant to Section 2.12 of the
Indenture, the last day of the month preceding such Monthly Payment Date.
"Recoveries" means, with respect to any Receivable that becomes a Defaulted
Receivable, monies collected in respect thereof, from whatever source, during
any Collection Period following the Collection Period in which such Receivable
became a Defaulted Receivable, net of the sum of (i) any amounts expended by the
Servicer for the account of the Obligor and (ii) any amounts required by law to
be remitted to the Obligor.
"Redemption Date" means, in the case of a redemption of the Notes pursuant
to Section 10.01(a) of the Indenture or a payment to Noteholders pursuant to
Section 10.01(b) of the Indenture, a Monthly Payment Date specified by the
Servicer or the Issuer pursuant to Section 10.01(a) or (b), as applicable.
"Redemption Price" means (a) in the case of a redemption of the Notes
pursuant to Section 10.01(a) of the Indenture, an amount equal to the unpaid
principal amount of the Notes redeemed plus accrued and unpaid interest thereon
at the respective Interest Rates for each Class of Notes being so redeemed
through the end of the Interest Accrual Period relating to the applicable
Monthly Payment Date, or (b) in the case of a payment made to Noteholders
pursuant to Section 10.01(b) of the Indenture, the amount on deposit in the Note
Distribution Account, but not in excess of the amount specified in clause (a)
above.
"Registered Holder" means the Person in whose name a Note is registered on
the Note Register on the applicable Record Date.
"Registrar of Titles" means, with respect to any state, the governmental
agency or body responsible for the registration of, and the issuance of
certificates of title relating to, motor vehicles and liens thereon.
"Regular Principal Distribution Amount" means, with respect to any Monthly
Payment Date, the sum of the following amounts, without duplication, with
respect to the Receivables in respect of the Collection Period preceding such
Monthly Payment Date: (i) that portion of all collections on Receivables
allocable to principal, (ii) all Liquidation Proceeds or other collections
attributable to the principal amount of Receivables that became Defaulted
24
Receivables during such Collection Period, plus the amount of Realized Losses
with respect to the Defaulted Receivables, (iii) to the extent attributable to
principal, the Purchase Amount of each Receivables that became a Purchased
Receivable during such Collection Period and (iv) partial payments relating to
refunds of extended warranty protection plan costs or of physical damage, credit
life or disability insurance policy premiums, but only if such costs or premiums
were financed by the respective Obligors thereon as of the date of the original
contract and only to the extent not included under clause (i) above.
"Reserve Account" means the account designated as such, established and
maintained pursuant to Section 5.01(a)(iii) of the Transfer and Servicing
Agreement.
"Reserve Account Initial Deposit" means an amount equal to $[ ].
"Responsible Officer" means, with respect to the Indenture Trustee, any
Trust Officer thereof.
"Schedule of Receivables" means the list of the Receivables set forth in
Schedule A to the Transfer and Servicing Agreement (which Schedule may be in the
form of microfiche).
"Secretary of State" means the Secretary of State of the State of Delaware.
"Securities" means the Notes and the Certificates.
"Securities Act" means the Securities Act of 1933, as amended.
"Servicer" means DFS, as the servicer of the Receivables, and each
successor to DFS (in the same capacity).
"Servicer Default" has the meaning specified in Section 8.01 of the
Transfer and Servicing Agreement.
"Servicer's Certificate" means a certificate of the Servicer delivered
pursuant to Section 4.09 of the Transfer and Servicing Agreement, substantially
in the form of Exhibit B thereto.
"Servicing Fee" means the fee payable to the Servicer for services rendered
during each Collection Period, determined pursuant to Section 4.08 of the
Transfer and Servicing Agreement.
"Servicing Fee Rate" means [ ] basis points (___) per annum.
"Simple Interest Method" means the method of allocating a fixed level
payment to principal and interest, pursuant to which the portion of such payment
that is allocated to interest is equal to the product of the fixed rate of
interest multiplied by the unpaid principal balance multiplied by the period of
time elapsed since the preceding payment of interest was made and the remainder
of such payment is allocable to principal.
25
"Specified Agreement" has the meaning set forth in Section 2.13(a) of the
Trust Agreement.
"Specified Reserve Account Balance" means, with respect to any Monthly
Payment Date, the lesser of (i) [ ]% of the Initial Pool Balance and (ii) the
outstanding principal balance of the Securities.
"Standard & Poor's" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., or its successor.
"State" means any one of the 00 Xxxxxx xx xxx Xxxxxx Xxxxxx xx Xxxxxxx or
the District of Columbia.
"Stated Maturity Date" means, with respect to any class of Notes, the
Monthly Payment Date set forth below opposite such class of Notes on which, to
the extent not previously paid, the outstanding principal amount of such Class
of Notes shall be payable.
CLASS OF NOTES STATED MATURITY DATE
Class [ ] [ ]
Class [ ] [ ]
Class [ ] [ ]
Class [ ] [ ]
Class [ ] [ ]
Class [ ] [ ]
Class [ ] [ ]
Class [ ] [ ]
Class [ ] [ ]
Class [ ] [ ]
"Successor Servicer" has the meaning specified in Section 3.07(e) of the
Indenture.
"Targeted Overcollateralization Amount" means, for any Monthly Payment
Date, shall be an Overcollateralization Amount equal to [ ]% of the Pool
Balance as of the end of the related Collection Period after giving effect to
all distributions in respect of principal to be made on such Monthly Payment
Date.
"Total Distribution Amount" means, with respect to any Monthly Payment
Date, the sum of the following amounts, without duplication, with respect to the
Receivables in respect of the Collection Period preceding such Monthly Payment
Date: (1) all collections on Receivables allocable to interest and principal,
(2) all Liquidation Proceeds or other collections attributable to accrued
interest on or the principal amount of Receivables that became Defaulted
Receivables during such Collection Period, plus the amount of Realized Losses
with respect to the Defaulted Receivables, (3) all Advances made by the
Servicer, (4) the Purchase Amount of each
26
Receivable that became a Purchased Receivable during such Collection Period, (5)
all Recoveries and (6) partial payments relating to refunds of extended warranty
protection plan costs or of physical damage, credit life or disability insurance
policy premiums, but only if such costs or premiums were financed by the
respective Obligors thereon as of the date of the original contract and only to
the extent not included under clause (1) above; provided, however, that in
calculating the Total Distribution Amount the following shall be excluded: (i)
all payments and proceeds (including Liquidation Proceeds) of any Purchased
Receivables, the Purchase Amount of which has been included in the Total
Distribution Amount in a prior Collection Period; (ii) amounts received in
respect of interest on the Receivables (which amounts shall be determined based
on the Simple Interest Method) during such preceding Collection Period in excess
of the amount of interest that would be due on the aggregate Principal Balance
of the Receivables during such Collection Period at their respective APRs if a
payment were received on each Receivable during such Collection Period on the
date payment is due under the terms of such Receivable; and (iii) Liquidation
Proceeds with respect to a Receivable attributable to accrued and unpaid
interest thereon (but not including interest for the then current Collection
Period) but only to the extent of any unreimbursed Advances.
"Transfer and Servicing Agreement" means the Transfer and Servicing
Agreement dated as of the Closing Date among the Issuer, the Depositor, and DFS,
as Servicer, as the same may be amended, amended and restated or otherwise
modified from time to time.
"Transferor" means Ganis Credit Corporation, a Delaware corporation, or its
successor in interest.
"Transferor Conveyed Property" has the meaning specified in Section 3.01 of
the Ganis/Depositor Transfer Agreement.
"Transferor Receivables" has the meaning specified in Section 2.01 of the
Ganis/Depositor Transfer Agreement.
"Treasury Regulations" means regulations, including proposed or temporary
Regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" means the Issuer.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the form of
deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise), and all proceeds of the foregoing.
"Trust Accounts" has the meaning specified in Section 5.01 in the Transfer
and Servicing Agreement.
27
"Trust Agreement" means the Trust Agreement dated as of the Closing Date
between the Depositor and the Owner Trustee, as the same may be amended, amended
and restated or otherwise modified from time to time.
"Trust Certificate" means a [__]% Asset Backed Certificate issued pursuant
to the Trust Agreement.
"Trust Estate" means all money, instruments, rights and other property that
are subject or intended to be subject to the lien and security interest of the
Indenture for the benefit of the Noteholders (including, without limitation, all
property and interests Granted to the Indenture Trustee), including all proceeds
thereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in
force on the Closing Date, unless otherwise specifically provided.
"Trust Officer" means (i) in the case of the Indenture Trustee, any officer
within the Corporate Trust Office of the Indenture Trustee, including any Vice
President, Assistant Vice President, Senior Trust Officer, Trust Officer,
Secretary, Assistant Secretary or any other officer of the Indenture Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject, and (ii) in the case of the Owner
Trustee, any officer in the Corporate Trust Administration Department of the
Owner Trustee with direct responsibility for the administration of the Trust
Agreement and the other Basic Documents on behalf of the Owner Trustee.
"UCC" means, unless the context otherwise requires, the Uniform Commercial
Code, as in effect in the relevant jurisdiction, as amended from time to time.
28
SCHEDULE A
Schedule of Receivables
Delivered to the Owner Trustee at Closing
SCHEDULE B
Location of Receivable Files
EXHIBIT A-1
Form of Distribution Statement to Noteholders
DISTRIBUTION FINANCIAL SERVICES [RV/BOAT] TRUST 199_-_
MONTHLY PAYMENT DATE STATEMENT TO NOTEHOLDERS
Pool Balance
Distribution Allocable to Principal on Notes
Class [ ] Notes: ($ per $1,000 original principal amount)
Class [ ] Notes: ($ per $1,000 original principal amount)
Class [ ] Notes: ($ per $1,000 original principal amount)
Class [ ] Notes: ($ per $1,000 original principal amount)
Class [ ] Notes: ($ per $1,000 original principal amount)
Class [ ] Notes: ($ per $1,000 original principal amount)
Class [ ] Notes: ($ per $1,000 original principal amount)
Class [ ] Notes: ($ per $1,000 original principal amount)
Class [ ] Notes: ($ per $1,000 original principal amount)
Class [ ] Notes: ($ per $1,000 original principal amount)
Distribution Allocable to Interest on Notes
Class [ ] Notes: ($ per $1,000 original principal amount)
Class [ ] Notes: ($ per $1,000 original principal amount)
Class [ ] Notes: ($ per $1,000 original principal amount)
Class [ ] Notes: ($ per $1,000 original principal amount)
Class [ ] Notes: ($ per $1,000 original principal amount)
Class [ ] Notes: ($ per $1,000 original principal amount)
Class [ ] Notes: ($ per $1,000 original principal amount)
Class [ ] Notes: ($ per $1,000 original principal amount)
Class [ ] Notes: ($ per $1,000 original principal amount)
Class [ ] Notes: ($ per $1,000 original principal amount)
Note Balance After Giving Effect to Principal Distributions on Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
A-1-1
Class [ ] Notes
Note Pool Factor
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Certificate Balance After Giving Effect to Principal Distributions on
Certificates
Certificate Pool Factor
Servicing Fee
Servicing Fee Per $1,000 Note
Realized Losses
Reserve Account Balance
A-1-2
EXHIBIT A-2
Form of Distribution Statement to Certificateholders
----------------------------------------------------
DISTRIBUTION FINANCIAL SERVICES [RV/BOAT] TRUST 199_-_
MONTHLY PAYMENT DATE STATEMENT TO CERTIFICATEHOLDERS
Pool Balance
Distribution Allocable to Principal on Certificates
Principal Per $1000 Certificate
Distribution Allocable to Interest on Certificates
Interest Per $1,000 Certificate
Note Balance After Giving Effect to Principal Distributions on Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Note Pool Factor
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
Class [ ] Notes
A-2-1
Certificate Balance After Giving Effect to Principal Distributions on
Certificates
Certificate Pool Factor
Servicing Fee
Servicing Fee Per $1,000 Certificate
Realized Losses
Reserve Account Balance
A-2-2
EXHIBIT B
Form of Servicer's Certificate
------------------------------
SERVICER'S MONTHLY CERTIFICATE
DISTRIBUTION FINANCIAL SERVICES [RV/BOAT] TRUST 199_-_
Accounting Date:
Determination Date:
Monthly Payment Date:
Collection Period Ending:
I. Collection Account Summary
Total Available Funds:
Principal and Interest Payments Received (including Prepayments):
Net Liquidation Proceeds (including Rebates/Insurance Amounts):
Current Monthly Interest Advance:
Amount of Withdrawal, if any, from Reserve Account:
Purchase Amounts for Purchased Receivables:
Total Distribution Amount Sent to Trustee:
II. Excess or Shortfalls
Amount of Interest Payments Due During the Collection Period for
Receivables:
Amount of Interest Payments Received During the Collection Period for
Receivables:
Amount of Current Month Excess/Shortfall:
III. Calculation of Reserve Account Deposit/Withdrawals
Specified Reserve Account Balance (lesser of [ ]% of the Initial Pool
Balance and the outstanding Principal Balance of the Notes and
Certificates):
B-1
Deposits to Reserve Account (only if Reserve Account less than the
specified Reserve Account Balance):
Withdrawals from Reserve Account (to the extent there are shortfalls on
payments of Interest or Principal):
Amount in Reserve Account as of Determination Date (excluding amount to
be paid on next Payment Date):
IV. Collections on Receivables
(a) Interest and Principal Payments Received:
Interest Payments Received:
Scheduled Principal Payments Received:
Principal Prepayments Received:
Total Interest and Principal Payments Received:
(b) Liquidation Proceeds:
Gross Proceeds of Defaulted Receivables (including Rebates/Insurance):
minus: Reasonable Expenses:
Net Liquidation Proceeds:
Allocation of Liquidation Proceeds:
Amount Allocable to Interest Payments:
Amount Allocable to Principal Payments:
(c) Purchase Amount--Receivables purchased from Trust:/1/
Amount Allocable to Interest:
Amount Allocable to Principal:
Total Collected Funds:
V. Calculation of Servicing and Trustee Fees:
Pool Balance of Receivables as of First Day of Collection Period:
multiplied by Servicer Fee Rate:
divided by Months per Year:
Servicing Fee Amount:
Pool Balance of Receivables as of First Day of Collection Period:
multiplied by Trustee Fee Rate:
divided by Months per Year:
Trustee Fee Amount:
--------------
/1/Identify pursuant to Section 4.09 of the Transfer and Servicing Agreement.
B-2
VI. Pool Balance and Portfolio Performance
(a) Pool Balance:
Initial Pool Balance:
Pool Balance as of Preceding Accounting Date:
Pool Balance as of Current Accounting Date
Age of Pool in Months:
(b) Default and Delinquency Performance (Includes Repossessions and
Bankruptcies):
--------------------------------------------------------------------------------
Current Month Number of Loans Principal Balance Percentage
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
30 - 59 Days Delinquent
--------------------------------------------------------------------------------
60 - 89 Days Delinquent
--------------------------------------------------------------------------------
90+ Days Delinquent
--------------------------------------------------------------------------------
Defaults
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Cumulative Defaults
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Schedule of Liquidated Receivables
Description of Vehicle
Account Number
Original Principal Balance of the Liquidated Receivables
Outstanding Principal Balance of the Liquidated Receivables
Gross Recovery
Net of Expenses
Realized Loss
Chargeoff Date
Repossession Date
Liquidation Date
Current Period Defaulted Receivables:
Description of Vehicle
Account Number
Original Principal Balance of the Defaulted Receivables
Outstanding Principal Balance of the Defaulted Receivables
Recovery Net of Expenses
Realized Loss
Chargeoff Date
Schedule of Repossession Inventory
Description of Vehicle
B-3
Account Number
Original Principal Balance of the Defaulted Receivables
Outstanding Principal Balance of the Defaulted Loan
Recovery Net of Expenses
Realized Loss
Chargeoff Date
Repossession Date
Current Period Realized Losses
Current Month's Realized Losses as Percentage of Initial Pool Balance
(Annualized):
Preceding Realized Month's Losses as Percentage of Initial Pool Balance
(Annualized):
Second Preceding Month's Realized Losses as Percentage of Initial Pool Balance
(Annualized):
VII. Distributions of the Total Distributable Amount
Total Pool Factor:
Note Pool Factor:
Certificate Pool Factor:
Class [ ] Interest and Principal Account:
A. Monthly Servicing Fee and any unpaid servicing fees from prior
Monthly Payment Dates:
Servicer Reimbursements for Mistaken Deposits or Postings of Checks
Returned for Insufficient Funds (not Otherwise Reimbursed to Servicer):
B. Noteholders' Interest Distributable Amount:
Class [ ]
Class [ ]
Class [ ]
Class [ ]
Class [ ]
Class [ ]
Class [ ]
Class [ ]
Class [ ]
Class [ ]
Noteholders' Principal Distributable Amount:
Class [ ]
Class [ ]
Class [ ]
Class [ ]
Class [ ]
Class [ ]
Class [ ]
B-4
Class [ ]
Class [ ]
Class [ ]
C. Certificateholders' Interest Distributable Amount:
Certificateholders' Principal Distributable Amount:
B-5
EXHIBIT C
FINAL CERTIFICATION OF CUSTODIAN
(date)
(to be addressed to the
Indenture Trustee)
Re: Transfer and Servicing Agreement dated as of ___________, 199_
among Distribution Financial Services [RV/Boat] Trust 199_-_, Deutsche
Recreational Asset Funding Corporation, Ganis Credit Corporation, and
Deutsche Financial Services Corporation, individually and as Servicer
(the "Agreement")
Gentlemen:
In accordance with the provisions of Section 3.02 of the above-referenced
Agreement, the undersigned, as custodian, hereby certifies that as to each
Receivable listed in the Schedule of Receivables, it has reviewed the related
Receivable File and has determined that (i) all documents required to be
delivered to it pursuant to the Agreement are in its possession, (ii) such
documents have been reviewed by it and appear regular on their face and relate
to such Receivable (for each of the Receivables listed on the attachment hereto
a certified confirmation of the lien is included in the Receivables File in lieu
of a fully executed original Lien Certificate or application therefor), and
(iii) based on its examination and only as to the foregoing documents, the
information set forth in the Schedule of Receivables respecting such Receivable
is correct. Capitalized terms used but not defined herein shall have the
meanings provided by the Agreement.
DEUTSCHE FINANCIAL SERVICES
CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
EXHIBIT D
DFS/GANIS TRANSFER AGREEMENT
between
DEUTSCHE FINANCIAL SERVICES CORPORATION
and
GANIS CREDIT CORPORATION
Dated as of ____________, 199_
TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Definitions................................................ 1
SECTION 1.02. Other Definitional Provisions.............................. 1
ARTICLE II
[Contribution] [Sale] of Receivables
SECTION 2.01. [Contribution] [Sale]...................................... 2
SECTION 2.02. Intent of the Parties...................................... 3
ARTICLE III
The Receivables
SECTION 3.01. Representations and Warranties as to Receivables........... 3
ARTICLE IV
DFS
SECTION 4.02. Corporate Existence........................................11
SECTION 4.03. Liability of DFS...........................................11
SECTION 4.04. Indemnification............................................11
SECTION 4.05. Merger or Consolidation of, or Assumption of the
Obligations of, DFS........................................12
SECTION 4.06. Limitation on Liability of DFS and Others..................12
SECTION 4.07. DFS May Own Notes and Certificates.........................12
ARTICLE V
Miscellaneous
SECTION 5.01. Amendment..................................................13
SECTION 5.02. Protection of Title; Change of Name, Identity, Corporate
Structure or Location, Etc.................................13
SECTION 5.03. Notices....................................................14
SECTION 5.04. Assignment.................................................14
D-i
SECTION 5.05. Limitations on Rights of Others...........................14
SECTION 5.06. Severability..............................................15
SECTION 5.07. Separate Counterparts.....................................15
SECTION 5.08. Headings..................................................15
SECTION 5.09. Governing Law; Submission to Jurisdiction.................15
SECTION 5.10. Nonpetition Covenants.....................................15
SECTION 5.11. Waiver....................................................16
SECTION 5.12. Separate Corporate Existence..............................16
||
D-ii
DFS/GANIS TRANSFER AGREEMENT dated as of _____________, 199_ (this
"Agreement") between DEUTSCHE FINANCIAL SERVICES CORPORATION, a Nevada
corporation ("DFS") and GANIS CREDIT CORPORATION, a Delaware corporation
("Ganis").
WHEREAS, Ganis desires to acquire receivables from DFS arising in
connection with recreational vehicle retail installment sale contracts and loan
contracts; and
WHEREAS, DFS is willing to [contribute] such receivables to Ganis.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01. Definitions. Except as otherwise specified herein or as the
context may otherwise require, capitalized terms used herein have the respective
meanings assigned thereto in Appendix A to the Transfer and Servicing Agreement
for all purposes of this Agreement. "Transfer and Servicing Agreement" means the
Transfer and Servicing Agreement, dated the same date as this Agreement, among
Distribution Financial Services [RV/Boat] Trust 199_-_, Deutsche Recreational
Asset Funding Corporation and DFS, as the same may be amended, amended and
restated or otherwise modified from time to time.
SECTION 1.02. Other Definitional Provisions.
(a) All terms defined in Appendix A to the Transfer and Servicing Agreement
shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document to
the extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles. To the extent that the definitions of
accounting terms in this Agreement or in any such certificate or other document
are inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in any
such certificate or other document shall control.
(c) The words "hereof", "herein", "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 contained in this
Agreement are references to Articles, Sections, Schedules and Exhibits in or to
this Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation".
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, amended and
restated or otherwise modified and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments incorporated
therein; references to a Person are also to its permitted successors and
assigns.
(f) Each reference to the "close of business" on a particular day shall
mean 5:00 p.m. Pacific Time on such day.
ARTICLE II
[Contribution] [Sale] of Receivables
------------------------------------
SECTION 2.01. [Contribution] [Sale]. DFS does hereby transfer, assign, set
over and otherwise convey to Ganis, as a [capital contribution] [sale], without
recourse (subject to the obligations of DFS set forth herein), all right, title
and interest of DFS in, to and under (but none of the obligations of DFS under):
(a) all of the Receivables originated by DFS or acquired by DFS from
Dealers (all of such Receivables being referred to collectively as the "DFS
Receivables" and individually as a "DFS Receivable") and all moneys received
thereon on and after the Cutoff Date;
(b) the security interests in the Financed Vehicles created pursuant to the
DFS Receivables and any other interest of DFS in the Financed Vehicles;
(c) any proceeds with respect to the DFS Receivables under any Insurance
Policies;
(d) any proceeds from recourse to Dealers with respect to DFS Receivables;
(e) any Financed Vehicle, relating to a DFS Receivable, acquired in
repossession;
(f) the contents of the Receivable Files with respect to DFS Receivables
and all rights, benefits and proceeds arising therefrom or in connection
therewith;
(g) all funds on deposit from time to time in the Trust Accounts, and all
investments and proceeds thereof (including all income thereon); and
D-2
(h) the proceeds of any and all of the foregoing.
The Receivables and other items covered by clauses (a)-(h) of this Section
2.01 shall be referred to collectively as the "DFS Conveyed Property".
SECTION 2.02. Intent of the Parties. (a) DFS and Ganis intend that the
conveyance by DFS to Ganis of the right, title and interest of DFS in, to and
under the Receivables and the other DFS Conveyed Property pursuant to this
Agreement shall constitute a [capital contribution] [sale] and not a loan.
However, in the event that, notwithstanding the intent of the parties, such
conveyance is deemed to be a transfer for security and not a [capital
contribution] [sale], then (i) DFS shall be deemed to have granted, and in such
event does hereby grant, to Ganis a first priority security interest in all of
its right, title and interest in, to and under DFS Conveyed Property, and (ii)
this Agreement shall constitute a security agreement under applicable law with
respect to such conveyance.
(b) No party hereto shall take any action that is inconsistent with the
ownership of the DFS Conveyed Property by Ganis, it being understood that this
sentence shall not prevent the transfer of the DFS Conveyed Property by Ganis to
the Depositor in accordance with the Ganis/Depositor Transfer Agreement and the
transfer of the DFS Conveyed Property by the Depositor to the Issuer in
accordance with the Transfer and Servicing Agreement. Each party hereto shall
inform any Person inquiring about the Receivables that the DFS Conveyed Property
has been transferred by DFS to Ganis, by Ganis to the Depositor and by Ganis to
the Issuer. Without limiting the generality of the foregoing, for accounting,
tax and other purposes each party hereto shall treat the transfer of DFS
Conveyed Property by DFS to Ganis as a [capital contribution] [sale] by DFS to
Ganis. Notwithstanding any other provision of this Agreement, no party hereto
shall have any recourse to DFS, Ganis or the Servicer on account of the
financial inability of any Obligor to make payments in respect of a Receivable.
ARTICLE III
The Receivables
---------------
SECTION 3.01. Representations and Warranties as to Receivables.
DFS makes the following representations and warranties as to the
Receivables, on which representations and warranties each of Ganis, the
Depositor and the Issuer is deemed to have relied in acquiring the Receivables.
Such representations and warranties speak as of the execution and delivery of
this Agreement and as of the Closing Date but shall survive the transfer and
assignment of the Receivables to the Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
D-3
(i) Characteristics of Receivables. All of the Receivables (other
than the Transferor Receivables) were originated by DFS or acquired by DFS
from Dealers. Each DFS Receivable (A) was fully and properly executed by
the parties thereto, (B) contains customary and enforceable provisions such
as to render the rights and remedies of the holder thereof adequate for
realization against the collateral security, (C) is fully amortizing and
provides for level periodic payments which, if made when due, shall fully
amortize the Amount Financed over the original term and (D) provides for,
in the event that such DFS Receivable is prepaid in full, payment of an
amount that fully pays the Principal Balance and includes accrued but
unpaid interest at least through the date of prepayment calculated at a
rate at least equal to its Annual Percentage Rate. Each DFS Receivable
provides that payments thereon are to be applied in accordance with the
Simple Interest Method. If such DFS Receivable was originated by a Dealer,
such Receivable, to the knowledge of DFS, (A) was originated by the Dealer
for the retail sale of a Financed Vehicle in the ordinary course of such
Dealer's business, (B) was purchased by DFS from such Dealer for new value
under a Dealer Agreement and (C) was validly assigned by the Dealer to DFS.
To the knowledge of DFS, such Dealer had all necessary licenses and permits
to originate DFS Receivables in the state where such Dealer was located. If
such DFS Receivable was originated by DFS, such DFS Receivable was
originated for value by DFS in the ordinary course of its business to
finance the purchase of, or refinance, the related Financed Vehicle by the
related Obligor. DFS had all necessary licenses and permits to originate or
purchase such DFS Receivable.
(ii) No Fraud or Misrepresentation. To the knowledge of DFS, each
DFS Receivable originated by a Dealer was originated by the Dealer and sold
by the Dealer to DFS without any fraud or misrepresentation on the part of
such Dealer.
(iii) Compliance with Law. To the knowledge of DFS, all requirements
of applicable federal, state and local laws, and regulations thereunder
(including, without limitation, usury laws, the Federal Truth-in- Lending
Act, the Equal Credit Opportunity Act, the Fair Credit Billing Act, the
Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal
Reserve Board's Regulations "B" and "Z", the Soldiers' and Sailors' Civil
Relief Act of 1940, state motor vehicle retail installment sales acts and
lending acts and state adaptations of the National Consumer Act and of the
Uniform Consumer Credit Code and other consumer credit laws and equal
credit opportunity and disclosure laws) in respect of all of the DFS
Receivables and each and every sale of Financed Vehicles relating thereto,
have been complied with in all material respects, and each DFS Receivable
and the sale of the Financed Vehicle evidenced by each DFS Receivable
complied at the time it was originated or made and now complies in all
material respects with all applicable legal requirements.
(iv) Origination. Each DFS Receivable was originated in the United
States.
D-4
(v) Binding Obligation. Each DFS Receivable represents the genuine,
legal, valid and binding payment obligation of the Obligor thereon,
enforceable by the holder thereof in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights generally and
by equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a proceeding in
equity or at law; and all parties to each DFS Receivable had full legal
capacity to execute and deliver such DFS Receivable and all other documents
related thereto and to grant the security interest purported to be granted
thereby.
(vi) No Government Obligor. No Obligor of a DFS Receivable is the
United States of America or any State or any agency, department,
subdivision or instrumentality thereof.
(vii) Obligor Bankruptcy. At the Cutoff Date, no Obligor had been
identified on the records of DFS as being the subject of a current
bankruptcy proceeding.
(viii) Schedule of Receivables. The information with respect to DFS
Receivables set forth in the Schedule of Receivables is true and correct in
all material respects as of the close of business on the Cutoff Date.
(ix) Marking Records. By the Closing Date, DFS shall have caused the
portions of its electronic ledger relating to the DFS Receivables to be
clearly and unambiguously marked to show that the DFS Receivables have been
transferred absolutely from DFS to Ganis, from Ganis to the Depositor and
from the Depositor to the Trust.
(x) Computer Tape. The Computer Tape was complete and accurate as
of the Cutoff Date and includes a description of the same DFS Receivables
that are described in the Schedule of Receivables.
(xi) Chattel Paper. The DFS Receivables constitute chattel paper
within the meaning of the UCC as in effect in the states in which the
Obligors reside.
(xii) One Original. There is only one original executed copy of each
DFS Receivable.
(xiii) Receivable Files Complete. There exists a Receivable File
pertaining to each DFS Receivable and, to the knowledge of DFS , such
Receivable File contains (a) a fully executed original of the DFS
Receivable, with a fully executed assignment thereof in blank or from the
related Dealer to DFS, as the case may be, if such DFS Receivable was
acquired by DFS from a Dealer, (b) a certificate of physical damage
insurance, application form for such insurance signed by the Obligor or a
signed representation letter from the Obligor named in the DFS Receivable
pursuant to which the Obligor has
D-5
agreed to obtain physical damage insurance for the Financed Vehicle, or
copies thereof, (c) the Lien Certificate or a copy of the application
therefor or a certification from the Servicer that it has received
confirmation from an authorized official of the appropriate governmental
office of the existence of the first lien of DFS with respect to the
related Financed Vehicle and (d) a credit application signed by the
Obligor, or a copy thereof. Each of such documents which is required to be
signed by the Obligor has been signed by the Obligor in the appropriate
spaces. Each of the foregoing documents has been correctly prepared. The
complete file for each DFS Receivable currently is in the possession of the
Servicer.
(xiv) Receivables in Force. No DFS Receivable has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such DFS
Receivable has not been released from the lien of the related DFS
Receivable in whole or in part. No provisions of any DFS Receivable have
been waived, altered or modified (except that DFS as servicer may have, for
administrative purposes, modified the due date of a DFS Receivable to a
different date in the month, which modification is reflected in its
servicing records) in any respect since its origination, except by
instruments or documents identified in the Receivable File. No DFS
Receivable has been modified as a result of application of the Soldiers'
and Sailors' Civil Relief Act of 1940, as amended.
(xv) Lawful Assignment. No DFS Receivable was originated in, or is
subject to the laws of, any jurisdiction the laws of which (a) would make
unlawful, void or voidable the transfer and assignment of such DFS
Receivable under this Agreement or the pledge of such DFS Receivable under
the Indenture or (b) would impair the validity or enforceability of any DFS
Receivable because of any such transfer, assignment or pledge.
(xvi) Good Title. No DFS Receivable has been sold, transferred,
assigned or pledged by DFS except pursuant to this Agreement; immediately
prior to the conveyance of the DFS Receivables by DFS to Ganis pursuant to
this Agreement, DFS had good and indefeasible title to the DFS Receivables,
free and clear of any Lien. No Dealer has a participation in, or other
right to receive, payments or proceeds in respect of any DFS Receivable.
DFS has not taken any action to convey any right to any Person that would
result in such Person having a right to payments received under the related
Insurance Policies or the related Dealer Agreements or to payments due
under such DFS Receivables.
(xvii) Security Interest in Financed Vehicle. Each DFS Receivable has
created a valid, binding and enforceable first priority security interest
in favor of DFS in the related Financed Vehicle, which is in full force and
effect. Each Lien Certificate contained in the Receivables Files shows DFS
named as the original secured party under each DFS Receivable and as the
holder of a first priority security interest in such Financed Vehicle. With
respect to each DFS Receivable for which the Lien Certificate is not
contained in the related Receivable File, the Servicer has either received
written
D-6
evidence that such Lien Certificate showing DFS as first lienholder has
been applied for or has certified in writing in the related Receivable File
that it has received confirmation from the appropriate governmental office
of the existence of the first lien of DFS with respect to the related
Financed Vehicle. The security interest of DFS in each such Financed
Vehicle has been validly assigned by DFS to Ganis pursuant to this
Agreement. Each DFS Receivable is secured by an enforceable and perfected
first priority security interest in the Financed Vehicle in the name of DFS
as secured party, which security interest is prior to all other Liens upon
and security interests in such Financed Vehicle which now exist or may
hereafter arise or be created.
(xviii) All Filings Made; Valid Security Interest. All filings
(including, without limitation, UCC filings) required to be made by any
Person and actions required to be taken or performed by any Person in any
jurisdiction to give Ganis a first priority perfected ownership interest in
the DFS Receivables and the proceeds thereof have been made, taken or
performed, subject to the transfer thereof by Ganis to the Depositor. At
the Closing Date Ganis shall have a valid, subsisting and enforceable first
priority ownership interest in each Receivable and the proceeds thereof,
subject to the transfer thereof by Ganis to the Depositor.
(xix) No Impairment. DFS has not done and shall not do anything to
convey any right to any Person that would result in such Person having a
right to payments due under a Receivable or otherwise to impair the rights
of the Trust in any Receivable or the proceeds thereof.
(xx) No Release. No DFS Receivable is assumable by another Person in
a manner which would release the Obligor thereof from such Obligor's
obligations to DFS with respect to such DFS Receivable.
(xxi) No Defenses. No DFS Receivable is subject to any right of
rescission, setoff, counterclaim or defense and, to the knowledge of DFS,
no such right has been asserted or threatened with respect to any DFS
Receivable. The operation of the terms of any DFS Receivable or the
exercise of any right thereunder shall not render the DFS Receivable
unenforceable in whole or in part or subject to any right of rescission,
setoff, counterclaim or defense, and to the knowledge of DFS, no such right
of rescission, setoff, counterclaim or defense has been asserted with
respect thereto.
(xxii) No Default. To the knowledge of DFS, there has been no default,
breach, violation or event permitting acceleration under the terms of any
DFS Receivable (other than payment delinquencies of not more than 59 days),
and no condition exists or event has occurred and is continuing that with
notice, the lapse of time or both would constitute a default, breach,
violation or event permitting acceleration under the terms of any DFS
Receivable, and there has been no waiver of any of the foregoing. As of the
Cutoff Date, no Financed Vehicle relating to any DFS Receivable had been
repossessed.
D-7
(xxiii) Insurance. Each DFS Receivable requires the Obligor to
maintain physical loss and damage insurance, naming DFS and its successors
and assigns as additional insured parties, and each DFS Receivable permits
the holder thereof to obtain physical loss and damage insurance at the
expense of the Obligor if the Obligor fails to do so. No Financed Vehicle
relating to any DFS Receivable was insured under a policy of force-placed
insurance on the Cutoff Date.
(xxiv) Past Due. At the Cutoff Date, no DFS Receivable was more than
59 days past due.
(xxv) No Liens. There are no Liens or claims which have been filed,
and, to the knowledge of DFS, none pending or threatened to be filed, for
work, labor, materials or unpaid state or federal taxes affecting the
Financed Vehicle securing any DFS Receivable which are or may become liens
prior or equal to the lien of the DFS Receivable.
(xxvi) Remaining Principal Balance. At the Cutoff Date, the Principal
Balance of each DFS Receivable set forth in the Schedule of Receivables is
true and accurate in all material respects.
(xxvii) Final Scheduled Maturity Date. No DFS Receivable has a final
maturity later than [ ].
(xxviii) Certain Characteristics. (A) Each DFS Receivable had a
remaining maturity, as of the Cutoff Date, of at least 1 month but not more
than [ ] months; (B) each DFS Receivable had an original maturity of at
least [ ] months but not more than [ ] months; (C) each DFS
Receivable had an original principal balance of at least $[ ] and not
more than $[ ]; (D) each DFS Receivable had a Principal Balance as of
the Cutoff Date of at least $[ ] and not more than $[ ]; (E) each DFS
Receivable has an Annual Percentage Rate of at least [ ]% and not more
than [ ]%; (F) [ ]% of the Receivables when originated were secured
by new Financed Vehicles; (G) no funds have been advanced by DFS, any
Dealer, or any Person acting on behalf of any of them in order to cause any
DFS Receivable to qualify under paragraph (xxv) above; (H) no DFS
Receivable has a Final Scheduled Maturity Date on or before [ ] or later
than [ ]; (I) as of the Cutoff Date, other than California ([ ]%),
Florida ([ ]%), Oregon ([ ]%) and Texas ([ ]%), no State
represented more than 5% by outstanding Pool Balance with respect to the
location of the Financed Vehicles; and (J) the Principal Balance of each
DFS Receivable set forth in Schedule of Receivables is true and accurate in
all material respects as of the Cutoff Date.
For purposes of determining whether DFS is obligated to purchase a DFS
Receivable on account of a breach of a representation and warranty pursuant
to this Section 3.01 or indemnify in respect of such breach pursuant to the
last paragraph of this Section 3.01, the determination as to whether a
representation or warranty that is made to
D-8
the knowledge of DFS has been breached shall be made without regard to such
knowledge of DFS as if such representation and warranty were not qualified
by the knowledge of DFS.
Upon discovery by any party hereto of a breach of any of the
representations and warranties of DFS set forth in this Section, which
materially and adversely affects the value of the Receivables or the
interest therein of the Issuer or the Indenture Trustee (or which
materially and adversely affects the interest of the Issuer or the
Indenture Trustee in the related Receivable in the case of a representation
and warranty relating to a particular Receivable), the party discovering
such breach shall give prompt written notice to the other parties hereto.
On the last day of the Collection Period following the Collection Period
during which DFS discovers or receives notice of any such breach of any
such representation or warranty, if such breach shall not have been cured
in all material respects by such last day, then DFS shall purchase such
Receivable from the Issuer (or from the Depositor, if the Depositor is
required to purchase such Receivable pursuant to Section 3.01 of the
Transfer and Servicing Agreement) as of such last day at a price equal to
the Purchase Amount of such Receivable, which price DFS shall remit in the
manner specified in Section 5.05 of the Transfer and Servicing Agreement[;
provided, that, with respect to the representation set forth in paragraph
(xiii) above, such purchase shall be required with respect to a Receivable
only if any resulting breach is not cured (it being understood that if the
related Lien Certificate has been duly applied for from the applicable
governmental offices as evidenced by a copy of the application therefor,
the receipt of such Lien Certificate shall not be required to cure a breach
of the applicable representation and warranty) within 90 days after
completion of the review and examination of the Receivable File for such
Receivable pursuant to Section 3.02 of the Transfer and Servicing
Agreement]. Subject to the indemnification provisions contained in the last
paragraph of this Section, the sole remedy of Ganis, the Depositor, the
Issuer, the Owner Trustee or the Indenture Trustee with respect to a breach
of representations and warranties of DFS set forth in this Section shall be
to require DFS to purchase Receivables pursuant to this Section, subject to
the conditions contained herein.
DFS shall indemnify Ganis, the Depositor, the Issuer, the Owner
Trustee and the Indenture Trustee and hold each harmless against any loss,
damages, penalties, fines, forfeitures, legal fees and related costs,
judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of the representations and warranties of DFS contained in this Agreement;
provided that DFS shall not be liable for any indirect damages or for any
loss, damage, penalty, fine, forfeiture, legal fees and related costs,
judgments and other costs and expenses caused by the wilful misconduct of
Ganis, the Depositor, the Issuer, the Owner Trustee or the Indenture
Trustee.
D-9
ARTICLE IV
DFS
---
SECTION 4.01. Representations of DFS. DFS makes the following
representations on which each of Ganis, the Depositor and the Issuer is deemed
to have relied in acquiring the Receivables. The representations speak as of the
execution and delivery of this Agreement and as of the Closing Date, in the case
of the Receivables, and shall survive the transfer of the Receivables to the
Issuer and the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
(a) Organization and Good Standing. DFS is duly organized and validly
existing as a corporation in good standing under the laws of the State of
Nevada, with the corporate power and authority to own its properties and to
conduct its business as such properties are currently owned and such business is
presently conducted, and had at all relevant times, and has, the corporate
power, authority and legal right to acquire and own the Receivables.
(b) Due Qualification. DFS is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals, in all jurisdictions in which the ownership or lease of property or
the conduct of its business shall require such qualifications.
(c) Power and Authority. DFS has the corporate power and authority to
execute and deliver this Agreement and to carry out its respective terms; DFS
has full power and authority to transfer and assign the property to be
transferred and assigned to Ganis, and DFS shall have duly authorized such
transfer and assignment by all necessary corporate action; and the execution,
delivery and performance of this Agreement by DFS has been duly authorized by
DFS by all necessary corporate action.
(d) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of DFS enforceable in accordance with its terms.
(e) No Violation. The consummation of the transactions contemplated by this
Agreement by DFS and the fulfillment of the terms hereof by DFS do not conflict
with, result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the articles of
incorporation or bylaws of DFS, or any indenture, agreement or other instrument
to which DFS is a party or by which it is bound; or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than pursuant to the Basic
Documents); or violate any law or, to the best of DFS's knowledge, any order,
rule or regulation applicable to DFS of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over DFS or its properties.
D-10
(f) No Proceedings. To DFS's best knowledge, there are no proceedings or
investigations pending or threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over DFS or its properties: (i) asserting the invalidity of this Agreement, the
Indenture or any of the other Basic Documents, the Notes or the Certificates,
(ii) seeking to prevent the issuance of the Notes or the Certificates or the
consummation of any of the transactions contemplated by this Agreement, the
Indenture or any of the other Basic Documents, (iii) seeking any determination
or ruling that might materially and adversely affect the performance by DFS of
its obligations under, or the validity or enforceability of, this Agreement, the
Indenture, any of the other Basic Documents, the Notes or the Certificates or
(iv) which might adversely affect the federal or state income tax attributes of
the Notes or the Certificates.
(g) Chief Executive Office. The chief executive office of DFS is located at
000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000.
SECTION 4.02. Corporate Existence. During the term of this Agreement, DFS
shall keep in full force and effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction of its incorporation and shall
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Basic Documents and each other instrument
or agreement necessary or appropriate to the proper administration of this
Agreement and the transactions contemplated hereby. In addition, all
transactions and dealings between the Depositor and DFS, and between DFS and
Ganis, shall be conducted on an arm's-length basis.
SECTION 4.03. Liability of DFS. DFS shall be liable in accordance herewith
only to the extent of the obligations specifically undertaken by DFS under this
Agreement.
SECTION 4.04. Indemnification. (a) DFS shall indemnify, defend and hold
harmless Ganis against any taxes that may at any time be asserted against Ganis
with respect to the transactions contemplated herein and in the other Basic
Documents including any sales, gross receipts, general corporation, tangible
personal property, privilege or license taxes (but not including any taxes
asserted with respect to, and as of the date of, the transfer of the Receivables
to Ganis or the issuance and original sale of the Notes and the Certificates, or
asserted with respect to ownership of the Receivables, or federal or other
income taxes arising out of distributions on the Notes and the Certificates) and
costs and expenses in defending against the same.
(b) DFS shall indemnify, defend and hold harmless Ganis and any of the
officers, directors, employees and agents of Ganis from and against any loss,
liability or expense incurred by reason of DFS's willful misfeasance, bad faith
or negligence in the performance of its duties under this Agreement, or by
reason of reckless disregard of its obligations and duties under this Agreement.
D-11
Indemnification under this Section shall survive termination of this
Agreement and the other Basic Documents and shall include reasonable fees and
expenses of counsel and expenses of litigation. If DFS shall have made any
indemnity payments pursuant to this Section and the Person to or on behalf of
whom such payments are made thereafter shall collect any of such amounts from
others, such Person shall promptly repay such amounts to DFS, without interest.
SECTION 4.05. Merger or Consolidation of, or Assumption of the Obligations
of, DFS. Any Person (a) into which DFS may be merged or consolidated, (b) which
may result from any merger or consolidation to which DFS shall be a party or (c)
which may succeed to the properties and assets of DFS substantially as a whole,
which Person in any of the foregoing cases executes an agreement of assumption
to perform every obligation of DFS under this Agreement, shall be the successor
to DFS hereunder without the execution or filing of any document or any further
act by any of the parties to this Agreement; provided, however, that (i)
immediately after giving effect to such transaction, no representation or
warranty made by DFS in Section 3.01 shall have been breached (unless the
applicable breach shall have been cured in all material respects, or the
applicable Receivable shall have been purchased in accordance therewith), (ii)
DFS shall have delivered to Ganis, the Owner Trustee and the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply with
this Section and that all conditions precedent, if any, provided for in this
Agreement relating to such transaction have been complied with, (iii) DFS shall
have delivered to the Owner Trustee and the Indenture Trustee an Opinion of
Counsel either (A) stating that, in the opinion of such counsel, all financing
statements and continuation statements and amendments thereto have been executed
and filed that are necessary fully to preserve and protect the interest of the
Owner Trustee and Indenture Trustee, respectively, in the DFS Receivables and
reciting the details of such filings, or (B) stating that, in the opinion of
such counsel, no such action shall be necessary to preserve and protect such
interests. Notwithstanding anything herein to the contrary, the execution of the
foregoing agreement of assumption and compliance with clauses (i), (ii), and
(iii) above shall be conditions to the consummation of the transactions referred
to in clauses (a), (b) or (c) above.
SECTION 4.06. Limitation on Liability of DFS and Others. DFS and any
director, officer, employee or agent of DFS may rely in good faith on the advice
of counsel or on any document of any kind, prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. DFS shall not
be under any obligation to appear in, prosecute or defend any legal action that
shall not be incidental to its obligations under this Agreement, and that in its
opinion may involve it in any expense or liability.
SECTION 4.07. DFS May Own Notes and Certificates. DFS and any Affiliate
thereof may in its individual or any other capacity become the owner or pledgee
of Notes and Certificates with the same rights as it would have if it were not
DFS or an Affiliate thereof, except as expressly provided herein or in any other
Basic Document.
D-12
ARTICLE V
Miscellaneous
-------------
SECTION 5.01. Amendment. This Agreement may be amended by the parties
hereto, with the consent of the Indenture Trustee, but without the consent of
any other Person; provided, however, that, unless the Rating Agency Condition
shall have been satisfied with respect thereto, such action shall not (as
evidenced by an Opinion of Counsel delivered to the Owner Trustee and the
Indenture Trustee) adversely affect in any material respect the interests of any
Noteholder or Certificateholder.
Promptly after the execution of any such amendment or consent, Ganis shall
furnish written notification of the substance of such amendment or consent to
the Indenture Trustee and each of the Rating Agencies.
Prior to the execution of or the consent to any amendment to this
Agreement, the Indenture Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement. The Indenture Trustee may, but shall not be
obligated to, enter into or consent to any such amendment which affects the
Indenture Trustee's own rights, duties or immunities under this Agreement or
otherwise.
SECTION 5.02. Protection of Title; Change of Name, Identity, Corporate
Structure or Location, Etc.
(a) DFS shall execute and file such financing statements and cause to be
executed and filed such continuation statements, all in such manner and in such
places as may be required by law fully to preserve, maintain and protect the
interest of Ganis, the Issuer and of the Indenture Trustee in the Receivables
and in the proceeds thereof. DFS shall deliver (or cause to be delivered) to the
Owner Trustee and the Indenture Trustee file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as available
following such filing.
(b) DFS shall not change its name, identity or corporate structure in any
manner that would, could or might make any financing statement or continuation
statement filed in accordance with paragraph (a) above seriously misleading
within the meaning of Section 9-402(7) of the UCC, unless it shall have given
Ganis, the Owner Trustee and the Indenture Trustee at least five days' prior
written notice thereof and shall have promptly filed appropriate amendments to
all previously filed financing statements or continuation statements.
(c) DFS shall give Ganis, the Owner Trustee and the Indenture Trustee at
least 60 days' prior written notice of any relocation of its chief 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 promptly file
any such amendment or new financing statement.
D-13
(d) If at any time DFS shall propose to sell, grant a security interest
in, or otherwise transfer any interest in recreational vehicle receivables to
any prospective purchaser, lender or other transferee, DFS shall give (or shall
cause the Servicer to give) to such prospective purchaser, lender or other
transferee computer tapes, records or printouts (including any restored from
backup archives) that, if they shall refer in any manner whatsoever to any DFS
Receivable, shall indicate clearly that such DFS Receivable has been transferred
by DFS to Ganis and by Ganis to the Issuer and is owned by the Issuer and has
been pledged to the Indenture Trustee.
SECTION 5.03. Notices. All demands, notices, directions, communications
and instructions upon, to, or by DFS, Ganis, the Servicer, the Owner Trustee,
the Indenture Trustee or the Rating Agencies under this Agreement shall be in
writing, personally delivered or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in the
case of DFS, to Deutsche Financial Services Corporation, 000 Xxxxxxxxx Xxxxxx
Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Chief Legal Officer, (b) in the
case of Ganis, to Ganis Credit Corporation, 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000, Attention: Executive Vice President, (c) in the case of
the Depositor, to Deutsche Recreational Asset Funding Corporation, 000 Xxxxxxxxx
Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: President, (d) in the case
of the Issuer or the Owner Trustee, at the Corporate Trust Office (as defined in
the Trust Agreement), (e) in the case of the Indenture Trustee, at the Corporate
Trust Office, (f) in the case of Moody's, to Xxxxx'x Investors Service, Inc.,
ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and (g)
in the case of Standard & Poor's, to Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx,
Xxx Xxxx 00000, Attention of Asset Backed Surveillance Department; or, as to
each of the foregoing, at such other address as shall be designated by written
notice to the other Persons listed in this Section.
SECTION 5.04. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 4.05 of this Agreement, this
Agreement may not be assigned by DFS. DFS hereby acknowledges and consents to
(i) the transfer by Ganis to the Depositor pursuant to the Ganis/Depositor
Transfer Agreement of all right, title and interest of Ganis in, to and under
(but none of the obligations of Ganis under) the DFS Conveyed Property and this
Agreement, (ii) the transfer by Ganis to the Issuer pursuant to the Transfer and
Servicing Agreement of all right, title and interest of Ganis in, to and under
(but none of the obligations of the Depositor under) the DFS Conveyed Property
and this Agreement, including the representations and warranties of DFS in this
Agreement, together with all rights of Ganis with respect to any breach thereof,
including the right to require DFS to purchase Receivables in accordance with
this Agreement, and (iii) the other terms of and transactions contemplated by
the Transfer and Servicing Agreement and the other Basic Documents.
SECTION 5.05. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of DFS, Ganis, the Depositor, the Servicer,
the Issuer, the Owner Trustee, the Indenture Trustee and the Noteholders, and,
except as expressly provided in this Agreement, nothing in this Agreement shall
be construed to give to any other Person any legal or equitable
D-14
right, remedy or claim under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 5.06. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 5.07. Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 5.08. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 5.09. Governing Law; Submission to Jurisdiction. THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE PERFECTION
(AND THE EFFECT OF PERFECTION OR NON-PERFECTION) OF THE INTERESTS OF ANY PERSON
IN CONVEYED PROPERTY ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK. EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE NON-
EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK, NEW YORK OVER ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THE BASIC DOCUMENTS, AND IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF THE ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE OR FEDERAL COURT, IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING.
SECTION 5.10. Nonpetition Covenants. Notwithstanding any prior termination
of this Agreement, DFS shall not, prior to the date which is one year and one
day after the termination of the Trust Agreement, acquiesce, petition or
otherwise invoke or cause the Issuer to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Issuer under any federal or state bankruptcy, insolvency or similar law, or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
Notwithstanding any prior termination of this Agreement, DFS shall not, prior to
the date which is one year and one day after the termination of the Trust
Agreement, acquiesce, petition or otherwise invoke or cause the Depositor to
invoke the process of any court
D-15
or government authority for the purpose of commencing or sustaining a case
against the Depositor under any federal or state bankruptcy, insolvency or
similar law, or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Depositor or any substantial part
of its property, or ordering the winding up or liquidation of the affairs of the
Depositor.
SECTION 5.11. Waiver. Each party hereto hereby (i) acknowledges that
Xxxxx, Xxxxx & Xxxxx represents DFS, the Transferor, the Depositor and
Affiliates of the Transferor, DFS and the Depositor in connection with the
transactions contemplated by the Basic Documents, and represents the
institutions which are the Indenture Trustee and the Owner Trustee (or
Affiliates of such institutions) in other transactions, and (ii) waives any
conflict of interest relating thereto. Notwithstanding any other provision of
this Agreement, Xxxxx, Xxxxx & Xxxxx is entitled to rely on this Section.
SECTION 5.12. Separate Corporate Existence. Each party hereto hereby
acknowledges that the Trust is entering into the transactions contemplated by
the Basic Documents in reliance upon (i) DFS's identity as a legal identity
separate from the Depositor and (ii) Ganis's identity as a legal entity separate
from the Depositor. Therefore, until the first day following the termination of
the Trust Agreement on which all of the Securities have been paid in full, each
party hereto shall take all reasonable steps to make it apparent to third
Persons that each of DFS and Ganis is an entity with assets and liabilities
distinct from those of the Depositor and that the Depositor is not a division of
DFS, Ganis or any other Person. Without limiting the foregoing, each party
hereto shall operate and conduct its respective businesses and otherwise act in
a manner which is consistent with Section 10.13 of the Transfer and Servicing
Agreement.
[SIGNATURES FOLLOW]
D-16
IN WITNESS WHEREOF, the parties hereto have caused this DFS/Ganis Transfer
Agreement to be duly executed by their respective officers as of the day and
year first above written.
DEUTSCHE FINANCIAL SERVICES CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
GANIS CREDIT CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
D-17
EXHIBIT E
GANIS/DEPOSITOR TRANSFER AGREEMENT
between
GANIS CREDIT CORPORATION,
as Transferor,
and
DEUTSCHE RECREATIONAL ASSET FUNDING CORPORATION,
as Depositor
Dated as of ____________, 199__
TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Definitions............................................. 1
SECTION 1.02. Other Definitional Provisions........................... 1
ARTICLE II
[Contribution] [Sale] of Receivables
SECTION 2.01. [Contribution] [Sale]................................... 2
SECTION 2.02. Intent of the Parties................................... 3
ARTICLE III
The Receivables
SECTION 3.01. Representations and Warranties as to Receivables........ 4
ARTICLE IV
The Transferor
SECTION 4.01. Representations of Transferor........................... 11
SECTION 4.02. Corporate Existence..................................... 12
SECTION 4.03. Liability of the Transferor............................. 12
SECTION 4.04. Indemnification......................................... 12
SECTION 4.05. Merger or Consolidation of, or Assumption of the
Obligations of, Transferor.............................. 13
SECTION 4.06. Limitation on Liability of Transferor and Others........ 13
SECTION 4.07. The Transferor May Own Notes and Certificates........... 13
ARTICLE V
Miscellaneous
SECTION 5.01. Amendment............................................... 14
SECTION 5.02. Protection of Title; Change of Name, Identity,
Corporate Structure or Location, Etc.................... 14
SECTION 5.03. Notices................................................. 15
E-i
SECTION 5.04. Assignment.............................................. 15
SECTION 5.05. Limitations on Rights of Others......................... 16
SECTION 5.06. Severability............................................ 16
SECTION 5.07. Separate Counterparts................................... 16
SECTION 5.08. Headings................................................ 16
SECTION 5.09. Governing Law; Submission to Jurisdiction............... 16
SECTION 5.10. Nonpetition Covenants................................... 16
SECTION 5.11. Waiver.................................................. 17
SECTION 5.12. Separate Corporate Existence............................ 17
E-ii
GANIS/DEPOSITOR TRANSFER AGREEMENT dated as of _____________, 199_ (this
"Agreement") between DEUTSCHE RECREATIONAL ASSET FUNDING CORPORATION, a Nevada
corporation (the "Depositor") and GANIS CREDIT CORPORATION, a Delaware
corporation ("Ganis" or the "Transferor").
WHEREAS, the Depositor desires to acquire receivables from the Transferor
arising in connection with recreational vehicle retail installment sale
contracts and loan contracts;
WHEREAS, the Transferor is willing to [contribute] [sell] such receivables
to the Depositor; and
WHEREAS, the Transferor acquired certain of such receivables from DFS
pursuant to the DFS/Ganis Transfer Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. Except as otherwise specified herein or as the
context may otherwise require, capitalized terms used herein have the respective
meanings assigned thereto in Appendix A to the Transfer and Servicing Agreement
for all purposes of this Agreement. "Transfer and Servicing Agreement" means the
Transfer and Servicing Agreement, dated the same date as this Agreement, among
Distribution Financial Services [RV/Boat] Trust 199_-_, the Depositor, and
Deutsche Financial Services Corporation, as the same may be amended, amended and
restated or otherwise modified from time to time.
SECTION 1.02. Other Definitional Provisions.
(a) All terms defined in Appendix A to the Transfer and Servicing Agreement
shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document to
the extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles. To the extent that the definitions of
accounting terms in this Agreement or in any such certificate or other document
are inconsistent with the meanings of such terms under generally accepted
accounting principles,
the definitions contained in this Agreement or in any such certificate or other
document shall control.
(c) The words "hereof", "herein", "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 contained in this Agreement are references to Articles,
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; and the term "including" shall mean "including without limitation".
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, amended and
restated or otherwise modified and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments incorporated
therein; references to a Person are also to its permitted successors and
assigns.
(f) Each reference to the "close of business" on a particular day shall
mean 5:00 p.m. Pacific Time on such day.
ARTICLE II
[Contribution] [Sale] of Receivables
SECTION 2.01. [Contribution] [Sale]. The Transferor does hereby transfer,
assign, set over and otherwise convey to the Depositor, as a [capital
contribution] [sale], without recourse (subject to the obligations of the
Transferor set forth herein), all right, title and interest of the Transferor
in, to and under (but none of the obligations of the Transferor under):
(a) all of the Receivables originated by the Transferor or acquired by the
Transferor from Dealers (all of such Receivables being referred to collectively
as the "Transferor Receivables" and individually as a "Transferor Receivable")
and all moneys received thereon on and after the Cutoff Date;
(b) the security interests in the Financed Vehicles created pursuant to the
Transferor Receivables and any other interest of the Transferor in the Financed
Vehicles;
(c) any proceeds with respect to the Transferor Receivables under any
Insurance Policies;
(d) any proceeds from recourse to Dealers with respect to Transferor
Receivables;
E-2
(e) any Financed Vehicle, relating to a Transferor Receivable, acquired in
repossession;
(f) the contents of the Receivable Files with respect to Transferor
Receivables and all rights, benefits and proceeds arising therefrom or in
connection therewith;
(g) all funds on deposit from time to time in the Trust Accounts, and all
investments and proceeds thereof (including all income thereon);
(h) the DFS/Ganis Transfer Agreement;
(i) the DFS Conveyed Property; and
(j) the proceeds of any and all of the foregoing.
The Receivables and other items covered by clauses (a)-(j) of this Section
2.01 shall be referred to collectively as the "Transferor Conveyed Property".
SECTION 2.02. Intent of the Parties. (a) The Transferor and the Depositor
intend that the conveyance by the Transferor to the Depositor of the right,
title and interest of the Transferor in, to and under the Receivables and the
other Transferor Conveyed Property pursuant to this Agreement shall constitute a
[capital contribution] [sale] and not a loan. However, in the event that,
notwithstanding the intent of the parties, such conveyance is deemed to be a
transfer for security and not a [capital contribution] [sale], then (i) the
Transferor shall be deemed to have granted, and in such event does hereby grant,
to the Depositor a first priority security interest in all of its right, title
and interest in, to and under the Transferor Conveyed Property, and (ii) this
Agreement shall constitute a security agreement under applicable law with
respect to such conveyance.
(b) No party hereto shall take any action that is inconsistent with the
ownership of the Transferor Conveyed Property by the Depositor, it being
understood that this sentence shall not prevent the transfer of the Transferor
Conveyed Property by the Depositor to the Issuer in accordance with the Transfer
and Servicing Agreement. Each party hereto shall inform any Person inquiring
about the Receivables that the Transferor Conveyed Property has been transferred
by the Transferor to the Depositor and by the Depositor to the Issuer. Without
limiting the generality of the foregoing, for accounting, tax and other purposes
each party hereto shall treat the transfer of Transferor Conveyed Property by
the Transferor to the Depositor as a [capital contribution] [sale] by the
Transferor to the Depositor. Notwithstanding any other provision of this
Agreement, no party hereto shall have any recourse to DFS, the Transferor, the
Depositor or the Servicer on account of the financial inability of any Obligor
to make payments in respect of a Receivable.
E-3
ARTICLE III
The Receivables
---------------
SECTION 3.0 Representations and Warranties as to Receivables. DFS has made
representations and warranties set forth in Section 3.01 of the DFS/Ganis
Transfer Agreement, and has consented to the assignment by the Transferor to the
Depositor and by the Depositor to the Issuer of the Transferor's rights with
respect thereto. Pursuant to Section 2.01 of this Agreement, the Transferor has
transferred to the Depositor all of the Transferor's right, title and interest
in, to and under the DFS/Ganis Transfer Agreement, which shall be understood to
include the representations and warranties of DFS therein, upon which the
Depositor relies in accepting the Receivables, together with all rights of the
Transferor with respect to any breach thereof, including the right to require
DFS to purchase Receivables in accordance with the DFS/Ganis Transfer Agreement.
The Transferor makes the following representations and warranties as to the
Receivables, on which representations and warranties each of the Depositor and
the Issuer is deemed to have relied in acquiring the Receivables. Such
representations and warranties speak as of the execution and delivery of this
Agreement and as of the Closing Date but shall survive the transfer and
assignment of the Receivables to the Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
(i) Characteristics of Receivables. All of the Receivables (other than
the DFS Receivables) were originated by the Transferor or acquired by the
Transferor from Dealers. Each Transferor Receivable (A) was fully and
properly executed by the parties thereto, (B) contains customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for realization against the collateral security,
(C) is fully amortizing and provides for level periodic payments which, if
made when due, shall fully amortize the Amount Financed over the original
term and (D) provides for, in the event that such Transferor Receivable is
prepaid in full, payment of an amount that fully pays the Principal Balance
and includes accrued but unpaid interest at least through the date of
prepayment calculated at a rate at least equal to its Annual Percentage
Rate. Each Transferor Receivable provides that payments thereon are to be
applied in accordance with the Simple Interest Method. If such Transferor
Receivable was originated by a Dealer, such Receivable, to the knowledge of
the Transferor, (A) was originated by the Dealer for the retail sale of a
Financed Vehicle in the ordinary course of such Dealer's business, (B) was
purchased by the Transferor from such Dealer for new value under a Dealer
Agreement and (C) was validly assigned by the Dealer to the Transferor. To
the knowledge of the Transferor, such Dealer had all necessary licenses and
permits to originate Transferor Receivables in the state where such Dealer
was located. If such Transferor Receivable was originated by the
Transferor, such Transferor Receivable was originated for value by the
Transferor in the ordinary course of its business to finance the purchase
of, or refinance, the related Financed Vehicle by the
E-4
related Obligor. The Transferor had all necessary licenses and permits to
originate or purchase such Transferor Receivable.
(ii) No Fraud or Misrepresentation. To the knowledge of the
Transferor, each Transferor Receivable originated by a Dealer was
originated by the Dealer and sold by the Dealer to the Transferor without
any fraud or misrepresentation on the part of such Dealer.
(iii) Compliance with Law. To the knowledge of the Transferor, all
requirements of applicable federal, state and local laws, and regulations
thereunder (including, without limitation, usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the Xxxxxxxx-Xxxx Warranty
Act, the Federal Reserve Board's Regulations "B" and "Z", the Soldiers' and
Sailors' Civil Relief Act of 1940, state motor vehicle retail installment
sales acts and lending acts and state adaptations of the National Consumer
Act and of the Uniform Consumer Credit Code and other consumer credit laws
and equal credit opportunity and disclosure laws) in respect of all of the
Transferor Receivables and each and every sale of Financed Vehicles
relating thereto, have been complied with in all material respects, and
each Transferor Receivable and the sale of the Financed Vehicle evidenced
by each Transferor Receivable complied at the time it was originated or
made and now complies in all material respects with all applicable legal
requirements.
(iv) Origination. Each Transferor Receivable was originated in the
United States.
(v) Binding Obligation. Each Transferor Receivable represents the
genuine, legal, valid and binding payment obligation of the Obligor
thereon, enforceable by the holder thereof in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of creditors'
rights generally and by equitable limitations on the availability of
specific remedies, regardless of whether such enforceability is considered
in a proceeding in equity or at law; and all parties to each Transferor
Receivable had full legal capacity to execute and deliver such Transferor
Receivable and all other documents related thereto and to grant the
security interest purported to be granted thereby.
(vi) No Government Obligor. No Obligor of a Transferor Receivable is
the United States of America or any State or any agency, department,
subdivision or instrumentality thereof.
(vii) Obligor Bankruptcy. At the Cutoff Date, no Obligor had been
identified on the records of the Transferor as being the subject of a
current bankruptcy proceeding.
E-5
(viii) Schedule of Receivables. The information with respect to
Transferor Receivables set forth in the Schedule of Receivables is true and
correct in all material respects as of the close of business on the Cutoff
Date.
(ix) Marking Records. By the Closing Date, the Transferor shall have
caused the portions of its electronic ledger relating to the Receivables to
be clearly and unambiguously marked to show that the Receivables have been
transferred absolutely from DFS to the Transferor (in the case of the DFS
Receivables), from the Transferor to the Depositor and from the Depositor
to the Trust.
(x) Computer Tape. The Computer Tape was complete and accurate as of
the Cutoff Date and includes a description of the same Receivables that are
described in the Schedule of Receivables.
(xi) Chattel Paper. The Transferor Receivables constitute chattel
paper within the meaning of the UCC as in effect in the states in which the
Obligors reside.
(xii) One Original. There is only one original executed copy of each
Transferor Receivable.
(xiii) Receivable Files Complete. There exists a Receivable File
pertaining to each Transferor Receivable and, to the knowledge of the
Transferor, such Receivable File contains (a) a fully executed original of
the Transferor Receivable, with a fully executed assignment thereof in
blank or from the related Dealer to the Transferor, as the case may be, if
such Transferor Receivable was acquired by the Transferor from a Dealer,
(b) a certificate of physical damage insurance, application form for such
insurance signed by the Obligor or a signed representation letter from the
Obligor named in the Transferor Receivable pursuant to which the Obligor
has agreed to obtain physical damage insurance for the Financed Vehicle, or
copies thereof, (c) the Lien Certificate or a copy of the application
therefor or a certification from the Servicer that it has received
confirmation from an authorized official of the appropriate governmental
office of the existence of the first lien of the Transferor with respect to
the related Financed Vehicle and (d) a credit application signed by the
Obligor, or a copy thereof. Each of such documents which is required to be
signed by the Obligor has been signed by the Obligor in the appropriate
spaces. Each of the foregoing documents has been correctly prepared. The
complete file for each Transferor Receivable currently is in the possession
of the Servicer.
(xiv) Receivables in Force. No Transferor Receivable has been
satisfied, subordinated or rescinded, and the Financed Vehicle securing
each such Transferor Receivable has not been released from the lien of the
related Transferor Receivable in whole or in part. No provisions of any
Transferor Receivable have been waived, altered or modified (except that
DFS as servicer may have, for administrative purposes, modified the due
date of a Transferor Receivable to a different date in the month, which
E-6
modification is reflected in its servicing records) in any respect since
its origination, except by instruments or documents identified in the
Receivable File. No Transferor Receivable has been modified as a result of
application of the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
(xv) Lawful Assignment. No Transferor Receivable was originated in,
or is subject to the laws of, any jurisdiction the laws of which (a) would
make unlawful, void or voidable the transfer and assignment of such
Transferor Receivable under this Agreement or the pledge of such Transferor
Receivable under the Indenture or (b) would impair the validity or
enforceability of any Transferor Receivable because of any such transfer,
assignment or pledge.
(xvi) Good Title. No Transferor Receivable has been sold,
transferred, assigned or pledged by the Transferor except pursuant to this
Agreement; immediately prior to the conveyance of the Receivables by the
Transferor to the Depositor pursuant to this Agreement, the Transferor had
good and indefeasible title to the Receivables, free and clear of any Lien.
No Dealer has a participation in, or other right to receive, payments or
proceeds in respect of any Transferor Receivable. The Transferor has not
taken any action to convey any right to any Person that would result in
such Person having a right to payments received under the related Insurance
Policies or the related Dealer Agreements or to payments due under such
Transferor Receivables.
(xvii) Security Interest in Financed Vehicle. Each Transferor
Receivable has created a valid, binding and enforceable first priority
security interest in favor of the Transferor in the related Financed
Vehicle, which is in full force and effect. Each Lien Certificate contained
in the Receivables Files shows the Transferor named as the original secured
party under each Transferor Receivable and as the holder of a first
priority security interest in such Financed Vehicle. With respect to each
Transferor Receivable for which the Lien Certificate is not contained in
the related Receivable File, the Servicer has either received written
evidence that such Lien Certificate showing the Transferor as first
lienholder has been applied for or has certified in writing in the related
Receivable File that it has received confirmation from the appropriate
governmental office of the existence of the first lien of the Transferor
with respect to the related Financed Vehicle. The security interest of the
Transferor in each such Financed Vehicle has been validly assigned by the
Transferor to the Depositor pursuant to this Agreement. Each Transferor
Receivable is secured by an enforceable and perfected first priority
security interest in the Financed Vehicle in the name of the Transferor as
secured party, which security interest is prior to all other Liens upon and
security interests in such Financed Vehicle which now exist or may
hereafter arise or be created.
(xviii) Filings Made; Valid Security Interest. All filings
(including, without limitation, UCC filings) required to be made by any
Person and actions required to be taken or performed by any Person in any
jurisdiction to give the Depositor a first priority perfected ownership
interest in the Receivables and the proceeds thereof have been made,
E-7
taken or performed, subject to the transfer thereof by the Depositor to the
Issuer. At the Closing Date the Depositor shall have a valid, subsisting
and enforceable first priority ownership interest in each Receivable and
the proceeds thereof, subject to the transfer thereof by the Depositor to
the Issuer.
(xix) No Impairment. The Transferor has not done and shall not do
anything to convey any right to any Person that would result in such Person
having a right to payments due under a Receivable or otherwise to impair
the rights of the Trust in any Receivable or the proceeds thereof.
(xx) No Release. No Transferor Receivable is assumable by another
Person in a manner which would release the Obligor thereof from such
Obligor's obligations to the Transferor with respect to such Transferor
Receivable.
(xxi) No Defenses. No Transferor Receivable is subject to any right
of rescission, setoff, counterclaim or defense and, to the knowledge of the
Transferor, no such right has been asserted or threatened with respect to
any Transferor Receivable. The operation of the terms of any Transferor
Receivable or the exercise of any right thereunder shall not render the
Transferor Receivable unenforceable in whole or in part or subject to any
right of rescission, setoff, counterclaim or defense, and to the knowledge
of the Transferor, no such right of rescission, setoff, counterclaim or
defense has been asserted with respect thereto.
(xxii) No Default. To the knowledge of the Transferor, there has been
no default, breach, violation or event permitting acceleration under the
terms of any Transferor Receivable (other than payment delinquencies of not
more than 59 days), and no condition exists or event has occurred and is
continuing that with notice, the lapse of time or both would constitute a
default, breach, violation or event permitting acceleration under the terms
of any Transferor Receivable, and there has been no waiver of any of the
foregoing. As of the Cutoff Date, no Financed Vehicle relating to any
Transferor Receivable had been repossessed.
(xxiii) Insurance. Each Transferor Receivable requires the Obligor to
maintain physical loss and damage insurance, naming the Transferor and its
successors and assigns as additional insured parties, and each Transferor
Receivable permits the holder thereof to obtain physical loss and damage
insurance at the expense of the Obligor if the Obligor fails to do so. No
Financed Vehicle relating to any Transferor Receivable was insured under a
policy of force-placed insurance on the Cutoff Date.
(xxiv) Past Due. At the Cutoff Date, no Transferor Receivable was
more than 59 days past due.
(xxv) No Liens. There are no Liens or claims which have been filed,
and, to the knowledge of the Transferor, none pending or threatened to be
filed, for work, labor,
E-8
materials or unpaid state or federal taxes affecting the Financed Vehicle
securing any Transferor Receivable which are or may become liens prior or
equal to the lien of the Transferor Receivable.
(xxvi) Remaining Principal Balance. At the Cutoff Date, the
Principal Balance of each Transferor Receivable set forth in the Schedule
of Receivables is true and accurate in all material respects.
(xxvii) Final Scheduled Maturity Date. No Transferor Receivable has
a final maturity later than [ ].
(xxviii) Certain Characteristics. (A) Each Transferor Receivable had
a remaining maturity, as of the Cutoff Date, of at least 1 month but not
more than [ ] months; (B) each Transferor Receivable had an original
maturity of at least [ ] months but not more than [ ] months; (C) each
Transferor Receivable had an original principal balance of at least $[ ]
and not more than $[ ]; (D) each Transferor Receivable had a Principal
Balance as of the Cutoff Date of at least $[ ] and not more than $[ ];
(E) each Transferor Receivable has an Annual Percentage Rate of at least
[ ]% and not more than [ ]%; (F) [ ]% of the Receivables when
originated were secured by new Financed Vehicles; (G) no funds have been
advanced by the Transferor, any Dealer, or any Person acting on behalf of
any of them in order to cause any Transferor Receivable to qualify under
paragraph (xxv) above; (H) no Transferor Receivable has a Final Scheduled
Maturity Date on or before [ ] or later than [ ]; (I) as of the
Cutoff Date, other than California ([ ]%), Florida ([ ]%), Oregon ([ ]%)
and Texas ([ ]%), no State represented more than 5% by outstanding Pool
Balance with respect to the location of the Financed Vehicles; and (J) the
Principal Balance of each Transferor Receivable set forth in Schedule of
Receivables is true and accurate in all material respects as of the Cutoff
Date.
For purposes of determining whether the Transferor is obligated to
purchase a Transferor Receivable on account of a breach of representation
and warranty pursuant to this Section 3.01 or indemnify in respect of such
breach pursuant to the last paragraph of this Section 3.01, the
determination as to whether a representation or warranty that is made to
the knowledge of the Transferor has been breached shall be made without
regard to such knowledge of the Transferor as if such representation and
warranty were not qualified by the knowledge of the Transferor.
Upon discovery by any party hereto of a breach of any of the
representations and warranties of the Transferor set forth in this Section
or of DFS set forth in Section 3.01 of the DFS/Ganis Transfer Agreement, in
each case which materially and adversely affects the value of the
Receivables or the interest therein of the Issuer or the Indenture Trustee
(or which materially and adversely affects the interest of the Issuer or
the Indenture Trustee in the related Receivable in the case of a
representation and warranty relating to a particular Receivable), the party
discovering such breach shall give prompt written notice
E-9
to the other parties hereto. On the last day of the Collection Period
following the Collection Period during which the Transferor discovers or
receives notice of any such breach of any such representation or warranty,
if such breach shall not have been cured in all material respects by such
last day, then the Transferor shall purchase (and, if applicable, the
Transferor shall enforce the obligation of DFS, under the DFS/Ganis
Transfer Agreement, to purchase) such Receivable from the Issuer (or from
the Depositor, if the Depositor is required to purchase such Receivable
pursuant to Section 3.01 of the Transfer and Servicing Agreement) as of
such last day at a price equal to the Purchase Amount of such Receivable,
which price the Transferor shall remit in the manner specified in Section
5.05 of the Transfer and Servicing Agreement[; provided, that, with respect
to the representation set forth in paragraph (xiii) above, such purchase
shall be required with respect to a Receivable only if any resulting breach
is not cured (it being understood that if the related Lien Certificate has
been duly applied for from the applicable governmental offices as evidenced
by a copy of the application therefor, the receipt of such Lien Certificate
shall not be required to cure a breach of the applicable representation and
warranty) within 90 days after completion of the review and examination of
the Receivable File for such Receivable pursuant to Section 3.02 of the
Transfer and Servicing Agreement]. Subject to the indemnification
provisions contained in the last paragraph of this Section, the sole remedy
of the Depositor, the Issuer, the Owner Trustee or the Indenture Trustee
with respect to a breach of representations and warranties of the
Transferor set forth in this Section shall be to require the Transferor to
purchase Receivables pursuant to this Section, subject to the conditions
contained herein; it being understood that this sentence shall not limit
the right of the parties to the Transfer and Servicing Agreement to enforce
(or to cause the Transferor to enforce) the obligation of DFS to purchase
Receivables pursuant to the DFS/Ganis Transfer Agreement.
The Transferor shall indemnify the Depositor, the Issuer, the Owner
Trustee and the Indenture Trustee and hold each harmless against any loss,
damages, penalties, fines, forfeitures, legal fees and related costs,
judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of the representations and warranties of the Transferor contained in this
Agreement; provided that the Transferor shall not be liable for any
indirect damages or for any loss, damage, penalty, fine, forfeiture, legal
fees and related costs, judgments and other costs and expenses caused by
the wilful misconduct of the Depositor, the Issuer, the Owner Trustee or
the Indenture Trustee.
E-10
ARTICLE IV
The Transferor
--------------
SECTION 4.01. Representations of Transferor. The Transferor makes the
following representations on which each of the Depositor and the Issuer is
deemed to have relied in acquiring the Receivables. The representations speak as
of the execution and delivery of this Agreement and as of the Closing Date, in
the case of the Receivables, and shall survive the transfer of the Receivables
to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
(a) Organization and Good Standing. The Transferor is duly organized and
validly existing as a corporation in good standing under the laws of the State
of Delaware, with the corporate power and authority to own its properties and to
conduct its business as such properties are currently owned and such business is
presently conducted, and had at all relevant times, and has, the corporate
power, authority and legal right to acquire and own the Receivables.
(b) Due Qualification. The Transferor is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of property
or the conduct of its business shall require such qualifications.
(c) Power and Authority. The Transferor has the corporate power and
authority to execute and deliver this Agreement and to carry out its respective
terms; the Transferor has full power and authority to transfer and assign the
property to be transferred and assigned to the Depositor, and the Transferor
shall have duly authorized such transfer and assignment by all necessary
corporate action; and the execution, delivery and performance of this Agreement
by the Transferor has been duly authorized by the Transferor by all necessary
corporate action.
(d) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of the Transferor enforceable in accordance with its terms.
(e) No Violation. The consummation of the transactions contemplated by this
Agreement by the Transferor and the fulfillment of the terms hereof by the
Transferor do not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or bylaws of the Transferor, or any
indenture, agreement or other instrument to which the Transferor is a party or
by which it is bound; or result in the creation or imposition of any Lien upon
any of its properties pursuant to the terms of any such indenture, agreement or
other instrument (other than pursuant to the Basic Documents); or violate any
law or, to the best of the Transferor's knowledge, any order, rule or regulation
applicable to the Transferor of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Transferor or its properties.
E-11
(f) No Proceedings. To the Transferor's best knowledge, there are no
proceedings or investigations pending or threatened before any court, regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Transferor or its properties: (i) asserting the invalidity
of this Agreement, the Indenture or any of the other Basic Documents, the Notes
or the Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated by this
Agreement, the Indenture or any of the other Basic Documents, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Transferor of its obligations under, or the validity or
enforceability of, this Agreement, the Indenture, any of the other Basic
Documents, the Notes or the Certificates or (iv) which might adversely affect
the federal or state income tax attributes of the Notes or the Certificates.
(g) Chief Executive Office. The chief executive office of the Transferor is
located at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000.
SECTION 4.02. Corporate Existence. During the term of this Agreement, the
Transferor shall keep in full force and effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation and shall obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the Basic Documents
and each other instrument or agreement necessary or appropriate to the proper
administration of this Agreement and the transactions contemplated hereby. In
addition, all transactions and dealings between the Transferor and DFS, and
between the Transferor and the Depositor, shall be conducted on an arm's-length
basis.
SECTION 4.03. Liability of the Transferor. The Transferor shall be liable
in accordance herewith only to the extent of the obligations specifically
undertaken by the Transferor under this Agreement.
SECTION 4.04. Indemnification. (a) The Transferor shall indemnify, defend
and hold harmless the Depositor against any taxes that may at any time be
asserted against the Depositor with respect to the transactions contemplated
herein and in the other Basic Documents including any sales, gross receipts,
general corporation, tangible personal property, privilege or license taxes (but
not including any taxes asserted with respect to, and as of the date of, the
transfer of the Receivables to the Depositor or the issuance and original sale
of the Notes and the Certificates, or asserted with respect to ownership of the
Receivables, or federal or other income taxes arising out of distributions on
the Notes and the Certificates) and costs and expenses in defending against the
same.
(b) The Transferor shall indemnify, defend and hold harmless the Depositor
and any of the officers, directors, employees and agents of the Depositor from
and against any loss, liability or expense incurred by reason of the
Transferor's willful misfeasance, bad faith or negligence in the performance of
its duties under this Agreement, or by reason of reckless disregard of its
obligations and duties under this Agreement.
E-12
Indemnification under this Section shall survive termination of this
Agreement and the other Basic Documents and shall include reasonable fees and
expenses of counsel and expenses of litigation. If the Transferor shall have
made any indemnity payments pursuant to this Section and the Person to or on
behalf of whom such payments are made thereafter shall collect any of such
amounts from others, such Person shall promptly repay such amounts to the
Transferor, without interest.
SECTION 4.05. Merger or Consolidation of, or Assumption of the Obligations
of, Transferor. Any Person (a) into which the Transferor may be merged or
consolidated, (b) which may result from any merger or consolidation to which the
Transferor shall be a party or (c) which may succeed to the properties and
assets of the Transferor substantially as a whole, which Person in any of the
foregoing cases executes an agreement of assumption to perform every obligation
of the Transferor under this Agreement, shall be the successor to the Transferor
hereunder without the execution or filing of any document or any further act by
any of the parties to this Agreement; provided, however, that (i) immediately
after giving effect to such transaction, no representation or warranty made by
the Transferor in Section 3.01 shall have been breached (unless the applicable
breach shall have been cured in all material respects, or the applicable
Receivable shall have been purchased in accordance therewith), (ii) the
Transferor shall have delivered to the Depositor, the Owner Trustee and the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel each
stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section and that all conditions precedent, if any,
provided for in this Agreement relating to such transaction have been complied
with, (iii) the Transferor shall have delivered to the Owner Trustee and the
Indenture Trustee an Opinion of Counsel either (A) stating that, in the opinion
of such counsel, all financing statements and continuation statements and
amendments thereto have been executed and filed that are necessary fully to
preserve and protect the interest of the Owner Trustee and Indenture Trustee,
respectively, in the Receivables and reciting the details of such filings, or
(B) stating that, in the opinion of such counsel, no such action shall be
necessary to preserve and protect such interests. Notwithstanding anything
herein to the contrary, the execution of the foregoing agreement of assumption
and compliance with clauses (i), (ii), and (iii) above shall be conditions to
the consummation of the transactions referred to in clauses (a), (b) or (c)
above.
SECTION 4.06. Limitation on Liability of Transferor and Others. The
Transferor and any director, officer, employee or agent of the Transferor may
rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Transferor shall not be under any obligation to appear
in, prosecute or defend any legal action that shall not be incidental to its
obligations under this Agreement, and that in its opinion may involve it in any
expense or liability.
SECTION 4.07. The Transferor May Own Notes and Certificates. The Transferor
and any Affiliate thereof may in its individual or any other capacity become the
owner or pledgee of
E-13
Notes and Certificates with the same rights as it would have if it were not the
Transferor or an Affiliate thereof, except as expressly provided herein or in
any other Basic Document.
ARTICLE V
Miscellaneous
-------------
SECTION 5.01. Amendment. This Agreement may be amended by the parties
hereto, with the consent of the Indenture Trustee, but without the consent of
any other Person; provided, however, that, unless the Rating Agency Condition
shall have been satisfied with respect thereto, such action shall not (as
evidenced by an Opinion of Counsel delivered to the Owner Trustee and the
Indenture Trustee) adversely affect in any material respect the interests of any
Noteholder or Certificateholder.
Promptly after the execution of any such amendment or consent, the
Depositor shall furnish written notification of the substance of such amendment
or consent to the Indenture Trustee and each of the Rating Agencies.
Prior to the execution of or the consent to any amendment to this
Agreement, the Indenture Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement. The Indenture Trustee may, but shall not be
obligated to, enter into or consent to any such amendment which affects the
Indenture Trustee's own rights, duties or immunities under this Agreement or
otherwise.
SECTION 5.02. Protection of Title; Change of Name, Identity, Corporate
Structure or Location, Etc.
(a) The Transferor shall execute and file such financing statements and
cause to be executed and filed such continuation statements, all in such manner
and in such places as may be required by law fully to preserve, maintain and
protect the interest of the Depositor, the Issuer and of the Indenture Trustee
in the Receivables and in the proceeds thereof. The Transferor shall deliver (or
cause to be delivered) to the Owner Trustee and the Indenture Trustee file-
stamped copies of, or filing receipts for, any document filed as provided above,
as soon as available following such filing.
(b) The Transferor shall not change its name, identity or corporate
structure in any manner that would, could or might make any financing statement
or continuation statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of Section 9-402(7) of the UCC, unless it shall
have given the Depositor, the Owner Trustee and the Indenture Trustee at least
five days' prior written notice thereof and shall have promptly filed
appropriate amendments to all previously filed financing statements or
continuation statements.
E-14
(c) The Transferor shall give the Depositor, the Owner Trustee and the
Indenture Trustee at least 60 days' prior written notice of any relocation of
its chief 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 promptly file any such amendment or new financing statement.
(d) If at any time the Transferor shall propose to sell, grant a security
interest in, or otherwise transfer any interest in recreational vehicle
receivables to any prospective purchaser, lender or other transferee, the
Transferor shall give (or shall cause the Servicer to give) to such prospective
purchaser, lender or other transferee computer tapes, records or printouts
(including any restored from backup archives) that, if they shall refer in any
manner whatsoever to any Receivable, shall indicate clearly that such Receivable
has been transferred by the Transferor to the Depositor and by the Depositor to
the Issuer and is owned by the Issuer and has been pledged to the Indenture
Trustee.
SECTION 5.03. Notices. All demands, notices, directions, communications and
instructions upon, to, or by the Depositor, the Servicer, the Owner Trustee, the
Indenture Trustee or the Rating Agencies under this Agreement shall be in
writing, personally delivered or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in the
case of the Servicer (so long as DFS is the Servicer), to Deutsche Financial
Services Corporation, 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000,
Attention: Chief Legal Officer, (b) in the case of the Transferor, to Ganis
Credit Corporation, 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000,
Attention: Executive Vice President, (c) in the case of the Depositor, to
Deutsche Recreational Asset Funding Corporation, 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx.
Xxxxx, Xxxxxxxx 00000, Attention: President, (d) in the case of the Issuer or
the Owner Trustee, at the Corporate Trust Office (as defined in the Trust
Agreement), (e) in the case of the Indenture Trustee, at the Corporate Trust
Office, (f) in the case of Moody's, to Xxxxx'x Investors Service, Inc., ABS
Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and (g) in
the case of Standard & Poor's, to Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx
00000, Attention of Asset Backed Surveillance Department; or, as to each of the
foregoing, at such other address as shall be designated by written notice to the
other Persons listed in this Section.
SECTION 5.04. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 4.05 of this Agreement, this
Agreement may not be assigned by the Transferor. The Transferor hereby
acknowledges and consents to (i) the transfer by the Depositor to the Issuer
pursuant to the Transfer and Servicing Agreement of all right, title and
interest of the Depositor in, to and under (but none of the obligations of the
Depositor under) the Transferor Conveyed Property and this Agreement, including
the representations and warranties of DFS in the DFS/Ganis Transfer Agreement
and of the Transferor in this Agreement, together with all rights of the
Depositor with respect to any breach thereof, including the right to require DFS
to purchase Receivables in accordance with the DFS/Ganis Transfer Agreement and
to require the Transferor to purchase Receivables in accordance with this
E-15
Agreement, and (ii) the other terms of and transactions contemplated by the
Transfer and Servicing Agreement and the other Basic Documents.
SECTION 5.05. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of DFS, the Transferor, the Depositor, the
Servicer, the Issuer, the Owner Trustee, the Indenture Trustee and the
Noteholders, and, except as expressly provided in this Agreement, nothing in
this Agreement shall be construed to give to any other Person any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
SECTION 5.06. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 5.07. Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 5.08. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 5.09. Governing Law; Submission to Jurisdiction. THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE PERFECTION
(AND THE EFFECT OF PERFECTION OR NON-PERFECTION) OF THE INTERESTS OF ANY PERSON
IN CONVEYED PROPERTY ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK. EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE NON-
EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK, NEW YORK OVER ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THE BASIC DOCUMENTS, AND IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF THE ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE OR FEDERAL COURT, IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING.
SECTION 5.10. Nonpetition Covenants. Notwithstanding any prior termination
of this Agreement, the Transferor shall not, prior to the date which is one year
and one day after the termination of the Trust Agreement, acquiesce, petition or
otherwise invoke or cause the Issuer
E-16
to invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Issuer under any federal or state
bankruptcy, insolvency or similar law, or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Issuer or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Issuer. Notwithstanding any prior termination
of this Agreement, the Transferor shall not, prior to the date which is one year
and one day after the termination of the Trust Agreement, acquiesce, petition or
otherwise invoke or cause the Depositor to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Depositor under any federal or state bankruptcy, insolvency or similar law,
or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Depositor or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Depositor.
SECTION 5.11. Waiver. Each party hereto hereby (i) acknowledges that
Xxxxx, Xxxxx & Xxxxx represents DFS, the Transferor, the Depositor and
Affiliates of the Transferor, DFS and the Depositor in connection with the
transactions contemplated by the Basic Documents, and represents the
institutions which are the Indenture Trustee and the Owner Trustee (or
Affiliates of such institutions) in other transactions, and (ii) waives any
conflict of interest relating thereto. Notwithstanding any other provision of
this Agreement, Xxxxx, Xxxxx & Xxxxx is entitled to rely on this Section.
SECTION 5.12. Separate Corporate Existence. Each party hereto hereby
acknowledges that the Trust is entering into the transactions contemplated by
the Basic Documents in reliance upon (i) the Transferor's identity as a legal
identity separate from DFS and the Depositor and (ii) the Depositor's identity
as a legal entity separate from DFS and the Transferor. Therefore, until the
first day following the termination of the Trust Agreement on which all of the
Securities have been paid in full, each of DFS, the Transferor and the Depositor
shall take all reasonable steps to make it apparent to third Persons that each
of DFS and the Transferor is an entity with assets and liabilities distinct from
those of the Depositor and that the Depositor is not a division of DFS, the
Transferor or any other Person. Without limiting the foregoing, each party
hereto shall operate and conduct its respective businesses and otherwise act in
a manner which is consistent with Section 10.13 of the Transfer and Servicing
Agreement.
[SIGNATURES FOLLOW]
E-17
IN WITNESS WHEREOF, the parties hereto have caused this Ganis/Depositor
Transfer Agreement to be duly executed by their respective officers as of the
day and year first above written.
GANIS CREDIT CORPORATION, as Transferor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
DEUTSCHE RECREATIONAL ASSET FUNDING CORPORATION, as
Depositor
By:
------------------------------------
Name:
----------------------------------
Title
----------------------------------
E-18
