EXHIBIT 10.3
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
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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
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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;
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(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.
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ARTICLE III
The Receivables
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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
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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.
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(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
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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,
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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,
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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
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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.
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ARTICLE IV
The Transferor
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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.
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(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.
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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
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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.
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(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
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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
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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]
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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
----------------------------------
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