EXHIBIT 10.3
FORM OF RECEIVABLES TRANSFER AGREEMENT
between
GANIS CREDIT CORPORATION
as Transferor,
and
DEUTSCHE RECREATIONAL ASSET FUNDING CORPORATION
as Depositor
Dated as of __________, 199_
ARTICLE I
Certain Definitions
ARTICLE II
Conveyance of Receivables
SECTION 2.01. Conveyance of Receivables....................................... 2
SECTION 2.02. The Closing..................................................... 3
ARTICLE III
Representations and Warranties
SECTION 3.01. Representations and Warranties of the Depositor................. 3
SECTION 3.02. Representations and Warranties of Transferor.................... 4
ARTICLE IV
Conditions
SECTION 4.01. Conditions to Obligation of the Depositor....................... 9
SECTION 4.02. Conditions to Obligation of the Transferor......................10
ARTICLE V
Covenants of the Transferor
SECTION 5.01. Protection of Right, Title and Interest.........................10
SECTION 5.02. Other Liens or Interests........................................11
SECTION 5.03. Costs and Expenses..............................................11
SECTION 5.04. Indemnification.................................................11
ARTICLE VI
Miscellaneous Provisions
SECTION 6.01. Obligations of Transferor.......................................11
SECTION 6.02. Purchase Events.................................................11
SECTION 6.03. Depositor Assignment of Purchased Receivables...................12
(SECTION 6.04. Transfer to the Issuer.........................................12
(SECTION 6.04. Transfer to the Trust..........................................12
SECTION 6.05. Amendment.......................................................12
SECTION 6.06. Waivers.........................................................13
SECTION 6.07. Notices.........................................................13
SECTION 6.08. Costs and Expenses..................................... 13
SECTION 6.09. Representations of the Transferor and the Depositor.... 13
SECTION 6.10. Confidential Information............................... 13
SECTION 6.11. Headings and Cross-References.......................... 13
SECTION 6.12. Governing Law.......................................... 14
SECTION 6.13. Counterparts........................................... 14
EXHIBIT A............................................................ A-1
SCHEDULE I........................................................... I-1
SCHEDULE II..........................................................II-1
RECEIVABLES TRANSFER AGREEMENT dated as of ______________, 199_, between
GANIS CREDIT CORPORATION, a Delaware corporation, as Transferor and DEUTSCHE
RECREATIONAL ASSET FUNDING CORPORATION, a Nevada corporation, as Depositor.
RECITALS
WHEREAS in the regular course of its business, the Transferor has acquired
certain (boat) (recreational vehicle) retail installment sale contracts secured
by new and used (boats, boat motors and accompanying trailers) (recreational
vehicles);
WHEREAS the Transferor and the Depositor wish to set forth the terms
pursuant to which such contracts are to be transferred by the Transferor to the
Depositor; and
WHEREAS the Depositor intends, concurrently with its transfers from time to
time hereunder, to convey all of its right, title and interest in and to
$______________ of such contracts to Distribution Financial Services [RV/Boat]
Trust 199_-_ (the"Issuer") pursuant to a (Transfer and Servicing Agreement dated
as of _____________, 199 (the "Transfer and Servicing Agreement"), by and among
(_________________) Trust 199_, as Issuer, Deutsche Recreational Asset Funding
Corporation, as Depositor, Deutsche Financial Services Corporation, as Servicer
and _______________, as Indenture Trustee) (Pooling and Servicing Agreement
dated as of ___________,199 (the "Pooling and Servicing Agreement") by and among
Deutsche Recreational Asset Funding Corporation, as Depositor, Deutsche
Financial Services Corporation, as Servicer, and ___________________________, as
Trustee).
NOW, THEREFORE, in consideration of the foregoing, other good and valuable
consideration and the mutual terms and covenants contained herein, the parties
hereto agree as follows:
ARTICLE I
Certain Definitions
Terms not defined in this Agreement shall have the meanings assigned
thereto in the (Transfer and Servicing Agreement) (Pooling and Servicing
Agreement). As used in this Agreement, the following terms shall, unless the
context otherwise requires, have the following meanings (such meanings to be
equally applicable to the singular and plural forms of the terms defined):
"Agreement" shall mean this Receivables Transfer Agreement, as the same may
be amended, amended and restated, or otherwise modified from time to time.
"Assignment" shall mean the document of assignment substantially in the
form attached to this Agreement as Exhibit A.
"Conveyance Date" shall mean the Cutoff Date.
"Depositor" shall mean Deutsche Recreational Asset Funding Corporation, a
Nevada corporation, and its successors and assigns.
("Pooling and Servicing Agreement" shall have the meaning set forth in the
recitals.)
"Purchase Event" shall have the meaning specified in Section 6.02.
"Receivables" shall mean any Contract listed on Schedule I hereto (which
Schedule may be in the form of microfiche).
"Schedule of Receivables" shall mean the list of Receivables annexed hereto
as Schedule I.
("Transfer and Servicing Agreement" shall have the meaning set forth in the
recitals.)
"Transfer Date" shall mean the Closing Date.
"Transferor" shall mean Ganis Credit Corporation, a Delaware corporation,
and its successors and assigns.
ARTICLE II
Conveyance of Receivables
SECTION 2.01. Conveyance of Receivables. (a) In consideration of the
Depositor's delivery to or upon the order of the Transferor on the Closing
Date of $______________, the Transferor does hereby, transfer, assign, set over
and otherwise convey to the Depositor, without recourse (subject to the
obligations herein) all right, title, and interest of the Transferor in and to:
(i) the Receivables and all moneys received thereon on or
after________________, 199_;
(ii) the security interests in the Financed Assets and any
accessions thereto granted by Obligors pursuant to the Receivables and any
other interest of the Transferor in such Financed Assets;
(iii) any Liquidation Proceeds and any other proceeds with respect to
the Receivables claims on any physical damage, credit life or disability
insurance policies covering
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Financed Assets or Obligors, including any vendor's single interest or other
collateral protection insurance policy;
(iv) any property that shall have secured a Receivable and that
shall have been acquired by or on behalf of the Transferor;
(v) all documents and other items contained in the Receivable
Files; and
(vi) the proceeds of any and all of the foregoing.
(b) The Transferor and the Depositor intend that the transfer of assets by
the Transferor to the Depositor pursuant to this Agreement be an absolute
conveyance of the ownership interest in such assets to the Depositor, rather
than the mere granting of a security interest to secure a borrowing. In the
event, however, that such transfer is deemed not to be a sale but to be of a
mere security interest to secure a borrowing, the Transferor shall be deemed to
have hereby granted to the Depositor a perfected first priority security
interest in all such assets, and this Agreement shall constitute a security
agreement under applicable law. Pursuant to the (Transfer and Servicing
Agreement)(Pooling and Servicing Agreement) and Section 6.04 hereof, the
Depositor may transfer and assign to the Issuer (i) all or any portion of the
assets assigned to the Depositor hereunder, (ii) all or any portion of the
Depositor's rights against the Transferor under this Agreement and (iii) all
proceeds thereof. Such assignment may be made by the Depositor with or without
assignment by the Depositor of its rights under this Agreement, and without
further notice to or acknowledgment from the Transferor. The Transferor waives,
to the extent permitted under applicable law, all claims, causes of action and
remedies, whether legal or equitable (including any right of setoff), against
the Depositor or any assignee of the Depositor relating to such action by the
Depositor in connection with the transactions contemplated by the (Transfer and
Servicing Agreement) (Pooling and Servicing Agreement).
SECTION 2.02. The Closing. The transfer of the Receivables shall take place
at a closing at the offices of ___________,____________________________ on the
Closing Date, simultaneously with the closing under ((a) the Transfer and
Servicing Agreement and (b) the Indenture)(the Pooling and Servicing Agreement).
ARTICLE III
Representations and Warranties
SECTION 3.01. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants as follows to the Transferor as of the
date hereof and the Transfer Date:
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(a) Organization and Good Standing. The Depositor has been duly under the
laws of the State of Nevada, with the power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is presently conducted.
(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.
(c) Power and Authority. The Depositor has the power and authority to
execute and deliver this Agreement and to carry out its terms; the Depositor had
at all relevant times, and has, the power, authority and legal right to acquire
and own the Receivables; and the execution, delivery and performance of this
Agreement have been duly authorized by the Depositor by all necessary corporate
action.
(d) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof 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 or both) 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.
(e) No Proceedings. There are no proceedings or investigations pending or,
to the Depositor's knowledge, threatened against the Depositor 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, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or (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.
SECTION 3.02. Representations and Warranties of Transferor. (a) The
Transferor hereby represents and warrants as follows to the Depositor as of the
date hereof and as of the Transfer Date:
(1) Organization and Good Standing. The Transferor has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with the power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted.
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(2) 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.
(3) Power and Authority. The Transferor has the power and authority
to execute and deliver this Agreement and the other Basic Documents to which it
is a party and to carry out their respective terms; the Transferor had at all
relevant times, and has, full power, authority and legal right to transfer and
assign the property transferred, transferred and assigned to the purchaser
hereby and has duly authorized such sale, transfer and assignment to the
Depositor by all necessary corporate action; and the execution, delivery and
performance of this Agreement and the other Basic Documents to which the
Transferor is a party have been duly authorized by the Transferor by all
necessary corporate action.
(4) No Violation. Upon giving effect to the consent described in
Section 3.02(b)(14), the consummation of the transactions contemplated by this
Agreement and the other Basic Documents to which the Transferor is a party and
the fulfillment of their respective terms 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 or both) 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 this
Agreement), 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.
(5) No Proceedings. There are no proceedings or investigations
pending or, to the Transferor's knowledge, threatened against the Transferor
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 or any other Basic Document to
which the Transferor is a party, (ii) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or any other Basic Document
to which the Transferor is a party or (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 or
any other Basic Document to which the Transferor is a party.
(6) Valid Transfer, Binding Obligations. This Agreement and the other
Basic Documents to which the Transferor is a party, when duly executed and
delivered by the other parties hereto and thereto, shall constitute legal, valid
and binding obligations of the Transferor, enforceable against the Transferor in
accordance with their respective terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization
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and similar laws now or hereafter in effect relating to or affecting creditors'
rights generally and to general principles of equity (whether applied in a
proceeding at law or in equity).
(7) Chief Executive Office. The chief executive office of the
Transferor is located at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000.
(8) No Consents. The Transferor is not required to obtain the consent
of any other party or any consent, license, approval, registration,
authorization, or declaration of or with any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity, or
enforceability of this Agreement or any other Basic Document to which it is a
party that has not already been obtained.
(b) The Transferor makes the following representations and warranties with
respect to the Receivables, on which the Depositor relies in accepting the
Receivables and in transferring the Receivables to the (Issuer under the
Transfer and Servicing Agreement, and on which the Issuer relies in pledging the
same to the Indenture Trustee) (Trustee under the Pooling and Servicing
Agreement). Such representations and warranties speak as of the execution and
delivery of this Agreement as of the Closing Date.
(1) Characteristics of Receivables. Each Receivable (A) was
originated in the United States by a Dealer for the retail sale of a Financed
Asset in the ordinary course of such Dealer's business in accordance with the
Transferor's credit policies, was fully and properly executed by the parties
thereto, was purchased by the Transferor from such Dealer under an existing
Dealer Agreement and was validly assigned by such Dealer to the Transferor,
(B)has created or shall create a valid, subsisting and enforceable first
priority security interest in favor of the Transferor in the Financed Asset,
which security interest is assignable by the Transferor to the Depositor, and by
the Depositor to the Issuer, (C) contains customary and enforceable provisions
such that the rights and remedies of the holder thereof are adequate for
realization against the collateral of the benefits of the security and (D)
provides for level periodic payments (provided that the payment in the last
month of the term of the Receivable may be different from the level payments)
that fully amortize the Amount Financed by maturity and yield interest at the
APR.
(2) Compliance with Law. Each Receivable and the sale of the related
Financed Asset complied at the time it was originated or made, and at the time
of execution of this Agreement complies, in all material respects with all
requirements of applicable federal, state and local laws and regulations
thereunder, including 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, 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.
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(3) Binding Obligation. Each 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 (A) as enforceability
thereof 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 (B) as such
Receivable may be modified by the application after the Transfer Date of the
Soldiers' and Sailors' Civil Relief Act of 1940, as amended.
(4) No Government Obligor. No Receivable is due from the United
States of America or any State or any agency, department, subdivision or
instrumentality thereof.
(5) Obligor Bankruptcy. No Obligor had been identified on the
records of the Transferor as being the subject of a current bankruptcy
proceeding.
(6) Schedule of Receivables . The information set forth in Schedule
I to this Agreement is true and correct in all material respects as of the close
of business on the Cutoff Date.
(7) Marking Records. By the Transfer Date, the Transferor will have
caused its records relating to each Receivable, including any computer records,
to be clearly and unambiguously marked to show that the Receivables have been
transferred to the Depositor by the Transferor and transferred and assigned by
the Depositor to the Issuer in accordance with the terms of the (Transfer and
Servicing Agreement and pledged by the Issuer to the Indenture Trustee in
accordance with the terms of the Indenture) (Pooling and Servicing Agreement).
(8) Computer Tape. The computer tape regarding the Receivables made
available by the Transferor to the Depositor is complete and accurate in all
respects as of the Conveyance Date.
(9) No Adverse Selection. No selection procedures believed by the
Transferor to be adverse to the (Noteholders) (or Certificateholders) were
utilized in selecting the Receivables.
(10) Chattel Paper. The Receivables constitute chattel paper within
the meaning of the UCC as in effect in the State of ______________.
(11) One Original. There is only one original executed copy of each
Receivable.
(12) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Asset been released from the
lien of the related Receivable in whole or in part. None of the terms of any
Receivable has been waived, altered or modified in
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any respect since its origination, except by instruments or documents identified
in the related Receivable File. No Receivable has been modified as a result of
the application of the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
(13) Lawful Assignment. No Receivable has been originated in, or is
subject to the laws of, any jurisdiction the laws of which would make unlawful,
void or voidable the transfer and assignment of such Receivable under this
Agreement or (the Transfer and Servicing Agreement or the pledge of such
Receivable under the Indenture) (the Pooling and Servicing Agreement).
(14) Title. It is the intention of the Transferor that the transfers
and assignments herein contemplated constitute transfers of the Receivables from
the Transferor to the Depositor and that the beneficial interest in and title to
the Receivables not be part of the debtor's estate in the event of the filing of
a bankruptcy petition by or against the Transferor under any bankruptcy law. No
Receivable has been transferred, assigned or pledged by the Transferor to any
Person other than to the Depositor or pursuant to this Agreement ((or by the
Depositor to the Issuer pursuant to the Transfer and Servicing Agreement))((or
by the Depositor to the Trustee pursuant to the Pooling and Servicing
Agreement)). Immediately prior to the transfers and assignments herein
contemplated, the Transferor has good and marketable title to each Receivable
free and clear of all Liens and, immediately upon the transfer thereof, the
Depositor shall have good and marketable title to each Receivable, free and
clear of all Liens.
(15) Security Interest in Financed Asset. Immediately prior to its
assignment and transfer to the Depositor pursuant to this Agreement, each
Receivable shall be secured by a validly perfected first priority security
interest in the related Financed Asset in favor of the Transferor as secured
party, or all necessary and appropriate actions have been commenced that will
result in the valid perfection of a first priority security interest in such
Financed Asset in favor of the Transferor as secured party.
(16) All Filings Made. All filings (including UCC filings) required
to be made in any jurisdiction to give the Depositor a first perfected ownership
interest in the Receivables have been made.
(17) No Defenses. No Receivable is subject to any right of
rescission, setoff, counterclaim or defense, and no such right has been asserted
or threatened with respect to any Receivable.
(18) No Default. There has been no default, breach, violation or
event permitting acceleration under the terms of any Receivable (other than
payment delinquencies of not more than __ 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 Receivable, and there has been no waiver of any of the
foregoing. As of the Cutoff Date, no Financed Asset has been repossessed.
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(19) Insurance. The Transferor, in accordance with its customary
procedures, has determined that the Obligor has obtained physical damage
insurance covering each Financed Asset and, under the terms of the related
contract, the Obligor is required to maintain such insurance.
(20) Final Scheduled Maturity Date. No Receivable has a final
scheduled payment date after ___________________.
(21) Certain Characteristics of the Receivables. As of the Conveyance
Date, (A) each Receivable had an original maturity of not more than __ months;
(B) no Receivable was more than __ days past due; and (C) no funds have been
advanced by the Transferor, any Dealer or anyone acting on behalf of either of
them in order to cause any Receivable to qualify under clause(B) above.
ARTICLE IV
Conditions
SECTION 4.01. Conditions to Obligation of the Depositor. The obligation of
the Depositor to purchase the Receivables is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Transferor hereunder shall be true and correct on the Transfer
Date with the same effect as if then made, and the Transferor shall have
performed all obligations to be performed by it hereunder on or prior to the
Transfer Date.
(b) Computer Files Marked. The Transferor shall, at its own expense, on or
prior to the Transfer Date, indicate in its computer files that the Receivables
have been transferred to the Depositor pursuant to this Agreement and deliver to
the Depositor the Schedule of Receivables, certified by the Transferor's
President, a Vice President or the Treasurer to be true, correct and complete.
(c) Documents To Be Delivered by the Transferor on the Transfer Date.
(1) The Assignment. On the Transfer Date, the Transferor will execute
and deliver an Assignment with respect to the Receivables, substantially in the
form of Exhibit A hereto.
(2) Evidence of UCC Filing. On or prior to the Transfer Date, the
Transferor shall record and file, at its own expense, a UCC-1 financing
statement in each jurisdiction in which required by applicable law, executed by
the Transferor, in favor of the Depositor, describing the Receivables and the
other assets assigned to the Depositor pursuant to Section 2.01 hereof, meeting
the requirements of the laws of each such jurisdiction and in such manner as is
necessary to perfect the transfer, assignment and conveyance of the Receivables
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and such other assets to the Depositor. The Transferor shall deliver to the
Depositor a file-stamped copy or other evidence satisfactory to the Depositor of
such filing on or prior to the Transfer Date.
(3) Other Documents. Such other documents as the Depositor may
reasonably request.
(d) Other Transactions. The transactions contemplated by the (Transfer and
Servicing Agreement, the Indenture and the Trust Agreement( (Pooling and
Servicing Agreement) to be consummated on the Transfer Date shall be consummated
on such date.
SECTION 4.02. Conditions to Obligation of the Transferor. The obligation of
the Transferor to transfer the Receivables to the Depositor is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Depositor hereunder shall be true and correct on the Transfer
Date with the same effect as if then made, and the Transferor shall have
performed all obligations to be performed by it hereunder on or prior to the
Transfer Date.
[(b) Receivables Transfer Price. On the Transfer Date, the Depositor shall
have delivered to the Transferor the purchase price specified in Section 2.01.]
ARTICLE V
Covenants of the Transferor
The Transferor agrees with the Depositor as follows:
SECTION 5.01. Protection of Right, Title and Interest. (a) Filings. The
Transferor shall cause all financing statements and continuation statements and
any other necessary documents covering the right, title and interest of the
Transferor and the Depositor, respectively, in and to the Receivables and the
other property included in the Owner Trust Estate to be promptly filed and atoll
times to be kept recorded, registered and filed, all in such manner and in such
places as may be required by law fully to preserve and protect the right, title
and interest of the Depositor hereunder in and to the Receivables and the other
property included in the Owner Trust Estate. The Transferor shall deliver to the
Depositor file stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following such
recordation, registration or filing. The Depositor shall cooperate fully with
the Transferor in connection with the obligations set forth above and will
execute any and all documents reasonably required to fulfill the intent of this
paragraph.
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(b) Name Change. If the Transferor makes any change in its name, identity
or corporate structure that would make any financing statement or continuation
statement filed in accordance with paragraph (a) above seriously misleading
within the applicable provisions of the UCC or any title statute, the Transferor
shall give the Depositor, the Indenture Trustee and the Owner Trustee written
notice thereof at least 5 days prior to such change and shall promptly file such
financing statements or amendments as may be necessary to continue the
perfection of the Depositor's interest in the property included in the Owner
Trust Estate.
SECTION 5.02. Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the Basic Documents, the Transferor shall not sell,
pledge, assign or transfer to any Person, or grant, create, incur, assume, or
suffer to exist any Lien on, or any interest in, to or under the Receivables,
and the Transferor shall defend the right, title and interest of the Depositor
in, to and under the Receivables against all claims of third parties claiming
through or under the Transferor; provided, however, that the Transferor's
obligations under this Section shall terminate upon the termination of the
Issuer pursuant to the Trust Agreement.
SECTION 5.03. Costs and Expenses. The Transferor agrees to pay all
reasonable costs and disbursements in connection with the perfection, as against
all third parties, of the Depositor's and the Issuer's right, title and interest
in and to the Receivables.
SECTION 5.04. Indemnification. The Transferor shall indemnify the Depositor
and the Issuer for any liability resulting from the failure of a Receivable to
be originated in compliance with all requirements of law and for any breach of
any of its representations and warranties contained herein. These indemnity
obligations shall be in addition to any obligation that the Transferor may
otherwise have.
ARTICLE VI
Miscellaneous Provisions
SECTION 6.01. Obligations of Transferor. The obligations of the Transferor
shall not be affected by the invalidity, illegality or irregularity of any
Receivable.
SECTION 6.02. Purchase Events. The Transferor hereby covenants and agrees
with the Depositor for the benefit of the Depositor, the (Indenture Trustee, the
Owner Trustee, (the Certificateholders) and the Noteholders)(the Trustee and the
Certificateholders) that the occurrence of a breach of any of the Transferor's
representations and warranties contained in Section 3.02(b) shall constitute an
event obligating the Transferor to purchase the Receivables to which the breach
is applicable ("Purchase Events"), at the Purchase Amount, from the Depositor or
from the Issuer, as applicable, unless any such breach shall have been cured by
the last day of the first Collection Period following the discovery or notice
thereof by or to the Transferor or the Servicer. The purchase obligation of the
Transferor shall constitute the sole
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remedy available to the Depositor, (the Indenture Trustee, the Owner Trustee,
the Issuer and the Noteholders (or the Certificateholders) (the Trustee or the
Certificateholders) against the Transferor with respect to any Purchase Event.
SECTION 6.03. Depositor Assignment of Purchased Receivables. With respect
to all Receivables repurchased by the Transferor pursuant to this Agreement, the
Depositor shall assign, without recourse, representation or warranty, to the
Transferor all of the Depositor's right, title and interest in and to such
Receivables and all security and documents relating thereto.
(SECTION 6.04. Transfer to the Issuer. The Transferor acknowledges and
agrees that (a) the Depositor will, pursuant to the Transfer and Servicing
Agreement, transfer and assign the Receivables and assign its rights under this
Agreement with respect thereto to the Issuer and the Issuer will pledge the
Receivables to the Indenture Trustee and (b) the representations and warranties
contained in this Agreement and the rights of the Depositor under this
Agreement, including under Section 6.02, are intended to benefit the Issuer, the
Noteholders (and the Certificateholders). The Transferor hereby consents to such
transfers and assignments.)
(SECTION 6.04. Transfer to the Trust. The Transferor acknowledges and
agrees that (a) the Depositor will, pursuant to the Pooling and Servicing
Agreement transfer and assign the Receivables and assign its rights under this
Agreement with respect thereto to the Trustee and (b) the representations and
warranties contained in this Agreement and the rights of the Depositor under
this Agreement, including under Section 6.02, are intended to benefit the
Certificateholders. The Transferor hereby consents to such transfers and
assignments.)
SECTION 6.05. Amendment. This Agreement may be amended from time to time,
with prior written notice to the Rating Agencies and by a written amendment duly
executed and delivered by the Transferor and the Depositor, 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
(Noteholders) (or Certificateholders); provided that such amendment shall not,
as evidenced by an Opinion of Counsel, materially and adversely affect the
interest of any (Noteholder) (or Certificateholder). This Agreement may also be
amended by the Transferor and the Depositor, with prior written notice to the
Rating Agencies and the prior written consent of (Holders of Notes evidencing at
least a majority of the Outstanding Amount of the Notes) and (Holders of
Certificates) evidencing at least a majority of the Certificate Balance
(excluding, for purposes of this Section 6.05, Certificates held by the
Transferor or any of its affiliates) 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 may (i) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that are required to be
made for the benefit of (Noteholders)(or Certificateholders) or (ii) reduce the
aforesaid
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percentage of the(Notes) or the (Certificates) that is required to
consent to any such amendment, without the consent of the Holders of all the
outstanding (Notes)and (Certificates).
SECTION 6.06. Waivers. No failure or delay on the part of the Depositor
in exercising any power, right or remedy under this Agreement or the
Assignment shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other or further
exercise thereof or the exercise of any other power, right or remedy.
SECTION 6.07. Notices. All demands, notices and communications under this
Agreement shall be in writing, personally delivered or mailed by
certified mail, return receipt requested, to: (a) in the case of the
Transferor, Ganis Credit Corporation, 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000, Attention: Executive Vice President; (b) in the case of the
Depositor, Deutsche Recreational Asset Funding Corporation, 000 Xxxxxxxxx Xxxxxx
Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: President; (c) in the case of
Moody's, Xxxxx'x Investors Service, Inc.,ABS Monitoring Department, 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; (d) in the case of Standard & Poor's, Standard
& Poor's Ratings Service, 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx 00000,
Attention: 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
parties.
SECTION 6.08. Costs and Expenses. The Transferor shall pay all expenses
incident to the performance of its obligations under this Agreement and the
Transferor agrees to pay all reasonable out-of-pocket costs and expenses of
the purchaser, excluding fees and expenses of counsel, in connection with
the perfection as against third parties of the Depositor's right, title
and interest in and to the Receivables and the enforcement of any obligation
of the Transferor hereunder.
SECTION 6.09. Representations of the Transferor and the Depositor. The
respective agreements, representations, warranties and other statements by the
Transferor and the Depositor set forth in or made pursuant to this Agreement
shall remain in full force and effect and will survive the closing under
Section 2.02 and the transfers and assignments referred to in Section 6.04.
SECTION 6.10. Confidential Information. The Depositor agrees that it will
neither use nor disclose to any Person the names and addresses of the
Obligors, except in connection with the enforcement of the Depositor's rights
hereunder, under the Receivables, under the (Transfer and Servicing
Agreement) (Pooling and Servicing Agreement) or another Basic Document, or as
required by any of the foregoing or by law.
SECTION 6.11. Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning
or interpretation of any provision of this Agreement. References in this
Agreement to section names or numbers are to such Sections of this
Agreement.
13
SECTION 6.12. Governing Law. This Agreement and the Assignment shall be
construed in accordance with the laws of the State of New York, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder or thereunder shall be determined in
accordance with such laws.
SECTION 6.13. Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date and year
first above written.
GANIS CREDIT CORPORATION
By:
----------------------------
Name:
Title:
DEUTSCHE RECREATIONAL ASSET FUNDING
CORPORATION
By:
----------------------------
Name:
Title:
15
EXHIBIT A
Form of Assignment
ASSIGNMENT
For value received, in accordance with the Receivables Transfer Agreement
dated as of ____________, 199 (the "Receivables Transfer Agreement"), between
Ganis Credit Corporation (the "Transferor") and Deutsche Recreational Asset
Funding Corporation (the "Depositor"), the Transferor does hereby assign,
transfer and otherwise convey unto the Depositor, without recourse, all right,
title and interest of the Transferor in and to (i) the Receivables and all
moneys received thereon on or after ______________, 199 ; (ii) the security
interests in the Financed Assets and any accessions thereto granted by Obligors
pursuant to the Receivables and any other interest of the Transferor in such
Financed Assets; (iii) any Liquidation Proceeds and any other proceeds with
respect to the Receivables from claims on any physical damage, credit life or
disability insurance policies covering Financed Assets or Obligors, including
any vendor's single interest or other collateral protection insurance policy;
(iv) any property that shall have secured a Receivable and that shall have been
acquired by or on behalf of the Transferor; (v) all documents and other items
contained in the Receivable Files; and (vi)proceeds of any and all of the
foregoing. The foregoing transfer does not constitute and is not intended to
result in any assumption by the Depositor of any obligation of the Transferor to
the Obligors, insurers or any other person in connection with the Receivables,
the Receivable Files, any insurance policies or any agreement or instrument
relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the Transferor contained in the
Receivables Transfer Agreement and is to be governed by the Receivables Transfer
Agreement.
Capitalized terms used and not otherwise defined herein shall have the
meaning assigned to them in the Receivables Transfer Agreement.
IN WITNESS WHEREOF, the Transferor has caused this Assignment to be duly
executed as of ________________, 199 . (______________________________),
GANIS CREDIT CORPORATION
By:
---------------------------
Name:
Title:
A-1
SCHEDULE I
Schedule of Receivables
I-1
SCHEDULE II
Location of Receivable Files
II-1
