EXHIBIT 10.4
DFS/GANIS TRANSFER AGREEMENT
between
DEUTSCHE FINANCIAL SERVICES CORPORATION
and
GANIS CREDIT CORPORATION
Dated as of ____________, 199_
TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Definitions................................................ 1
SECTION 1.02. Other Definitional Provisions.............................. 1
ARTICLE II
[Contribution] [Sale] of Receivables
SECTION 2.01. [Contribution] [Sale]...................................... 2
SECTION 2.02. Intent of the Parties...................................... 3
ARTICLE III
The Receivables
SECTION 3.01. Representations and Warranties as to Receivables........... 3
ARTICLE IV
DFS
SECTION 4.02. Corporate Existence........................................11
SECTION 4.03. Liability of DFS...........................................11
SECTION 4.04. Indemnification............................................11
SECTION 4.05. Merger or Consolidation of, or Assumption of the
Obligations of, DFS........................................12
SECTION 4.06. Limitation on Liability of DFS and Others..................12
SECTION 4.07. DFS May Own Notes and Certificates.........................12
ARTICLE V
Miscellaneous
SECTION 5.01. Amendment..................................................13
SECTION 5.02. Protection of Title; Change of Name, Identity, Corporate
Structure or Location, Etc.................................13
SECTION 5.03. Notices....................................................14
SECTION 5.04. Assignment.................................................14
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SECTION 5.05. Limitations on Rights of Others...........................14
SECTION 5.06. Severability..............................................15
SECTION 5.07. Separate Counterparts.....................................15
SECTION 5.08. Headings..................................................15
SECTION 5.09. Governing Law; Submission to Jurisdiction.................15
SECTION 5.10. Nonpetition Covenants.....................................15
SECTION 5.11. Waiver....................................................16
SECTION 5.12. Separate Corporate Existence..............................16
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DFS/GANIS TRANSFER AGREEMENT dated as of _____________, 199_ (this
"Agreement") between DEUTSCHE FINANCIAL SERVICES CORPORATION, a Nevada
corporation ("DFS") and GANIS CREDIT CORPORATION, a Delaware corporation
("Ganis").
WHEREAS, Ganis desires to acquire receivables from DFS arising in
connection with recreational vehicle retail installment sale contracts and loan
contracts; and
WHEREAS, DFS is willing to [contribute] such receivables to Ganis.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01. Definitions. Except as otherwise specified herein or as the
context may otherwise require, capitalized terms used herein have the respective
meanings assigned thereto in Appendix A to the Transfer and Servicing Agreement
for all purposes of this Agreement. "Transfer and Servicing Agreement" means the
Transfer and Servicing Agreement, dated the same date as this Agreement, among
Distribution Financial Services [RV/Boat] Trust 199_-_, Deutsche Recreational
Asset Funding Corporation and DFS, as the same may be amended, amended and
restated or otherwise modified from time to time.
SECTION 1.02. Other Definitional Provisions.
(a) All terms defined in Appendix A to the Transfer and Servicing Agreement
shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document to
the extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles. To the extent that the definitions of
accounting terms in this Agreement or in any such certificate or other document
are inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in any
such certificate or other document shall control.
(c) The words "hereof", "herein", "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Article, Section, Schedule and
Exhibit references contained in this
Agreement are references to Articles, Sections, Schedules and Exhibits in or to
this Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation".
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, amended and
restated or otherwise modified and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments incorporated
therein; references to a Person are also to its permitted successors and
assigns.
(f) Each reference to the "close of business" on a particular day shall
mean 5:00 p.m. Pacific Time on such day.
ARTICLE II
[Contribution] [Sale] of Receivables
------------------------------------
SECTION 2.01. [Contribution] [Sale]. DFS does hereby transfer, assign, set
over and otherwise convey to Ganis, as a [capital contribution] [sale], without
recourse (subject to the obligations of DFS set forth herein), all right, title
and interest of DFS in, to and under (but none of the obligations of DFS under):
(a) all of the Receivables originated by DFS or acquired by DFS from
Dealers (all of such Receivables being referred to collectively as the "DFS
Receivables" and individually as a "DFS Receivable") and all moneys received
thereon on and after the Cutoff Date;
(b) the security interests in the Financed Vehicles created pursuant to the
DFS Receivables and any other interest of DFS in the Financed Vehicles;
(c) any proceeds with respect to the DFS Receivables under any Insurance
Policies;
(d) any proceeds from recourse to Dealers with respect to DFS Receivables;
(e) any Financed Vehicle, relating to a DFS Receivable, acquired in
repossession;
(f) the contents of the Receivable Files with respect to DFS Receivables
and all rights, benefits and proceeds arising therefrom or in connection
therewith;
(g) all funds on deposit from time to time in the Trust Accounts, and all
investments and proceeds thereof (including all income thereon); and
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(h) the proceeds of any and all of the foregoing.
The Receivables and other items covered by clauses (a)-(h) of this Section
2.01 shall be referred to collectively as the "DFS Conveyed Property".
SECTION 2.02. Intent of the Parties. (a) DFS and Ganis intend that the
conveyance by DFS to Ganis of the right, title and interest of DFS in, to and
under the Receivables and the other DFS Conveyed Property pursuant to this
Agreement shall constitute a [capital contribution] [sale] and not a loan.
However, in the event that, notwithstanding the intent of the parties, such
conveyance is deemed to be a transfer for security and not a [capital
contribution] [sale], then (i) DFS shall be deemed to have granted, and in such
event does hereby grant, to Ganis a first priority security interest in all of
its right, title and interest in, to and under DFS Conveyed Property, and (ii)
this Agreement shall constitute a security agreement under applicable law with
respect to such conveyance.
(b) No party hereto shall take any action that is inconsistent with the
ownership of the DFS Conveyed Property by Ganis, it being understood that this
sentence shall not prevent the transfer of the DFS Conveyed Property by Ganis to
the Depositor in accordance with the Ganis/Depositor Transfer Agreement and the
transfer of the DFS Conveyed Property by the Depositor to the Issuer in
accordance with the Transfer and Servicing Agreement. Each party hereto shall
inform any Person inquiring about the Receivables that the DFS Conveyed Property
has been transferred by DFS to Ganis, by Ganis to the Depositor and by Ganis to
the Issuer. Without limiting the generality of the foregoing, for accounting,
tax and other purposes each party hereto shall treat the transfer of DFS
Conveyed Property by DFS to Ganis as a [capital contribution] [sale] by DFS to
Ganis. Notwithstanding any other provision of this Agreement, no party hereto
shall have any recourse to DFS, Ganis or the Servicer on account of the
financial inability of any Obligor to make payments in respect of a Receivable.
ARTICLE III
The Receivables
---------------
SECTION 3.01. Representations and Warranties as to Receivables.
DFS makes the following representations and warranties as to the
Receivables, on which representations and warranties each of Ganis, the
Depositor and the Issuer is deemed to have relied in acquiring the Receivables.
Such representations and warranties speak as of the execution and delivery of
this Agreement and as of the Closing Date but shall survive the transfer and
assignment of the Receivables to the Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
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(i) Characteristics of Receivables. All of the Receivables (other
than the Transferor Receivables) were originated by DFS or acquired by DFS
from Dealers. Each DFS Receivable (A) was fully and properly executed by
the parties thereto, (B) contains customary and enforceable provisions such
as to render the rights and remedies of the holder thereof adequate for
realization against the collateral security, (C) is fully amortizing and
provides for level periodic payments which, if made when due, shall fully
amortize the Amount Financed over the original term and (D) provides for,
in the event that such DFS Receivable is prepaid in full, payment of an
amount that fully pays the Principal Balance and includes accrued but
unpaid interest at least through the date of prepayment calculated at a
rate at least equal to its Annual Percentage Rate. Each DFS Receivable
provides that payments thereon are to be applied in accordance with the
Simple Interest Method. If such DFS Receivable was originated by a Dealer,
such Receivable, to the knowledge of DFS, (A) was originated by the Dealer
for the retail sale of a Financed Vehicle in the ordinary course of such
Dealer's business, (B) was purchased by DFS from such Dealer for new value
under a Dealer Agreement and (C) was validly assigned by the Dealer to DFS.
To the knowledge of DFS, such Dealer had all necessary licenses and permits
to originate DFS Receivables in the state where such Dealer was located. If
such DFS Receivable was originated by DFS, such DFS Receivable was
originated for value by DFS in the ordinary course of its business to
finance the purchase of, or refinance, the related Financed Vehicle by the
related Obligor. DFS had all necessary licenses and permits to originate or
purchase such DFS Receivable.
(ii) No Fraud or Misrepresentation. To the knowledge of DFS, each
DFS Receivable originated by a Dealer was originated by the Dealer and sold
by the Dealer to DFS without any fraud or misrepresentation on the part of
such Dealer.
(iii) Compliance with Law. To the knowledge of DFS, all requirements
of applicable federal, state and local laws, and regulations thereunder
(including, without limitation, usury laws, the Federal Truth-in- Lending
Act, the Equal Credit Opportunity Act, the Fair Credit Billing Act, the
Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal
Reserve Board's Regulations "B" and "Z", the Soldiers' and Sailors' Civil
Relief Act of 1940, state motor vehicle retail installment sales acts and
lending acts and state adaptations of the National Consumer Act and of the
Uniform Consumer Credit Code and other consumer credit laws and equal
credit opportunity and disclosure laws) in respect of all of the DFS
Receivables and each and every sale of Financed Vehicles relating thereto,
have been complied with in all material respects, and each DFS Receivable
and the sale of the Financed Vehicle evidenced by each DFS Receivable
complied at the time it was originated or made and now complies in all
material respects with all applicable legal requirements.
(iv) Origination. Each DFS Receivable was originated in the United
States.
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(v) Binding Obligation. Each DFS Receivable represents the genuine,
legal, valid and binding payment obligation of the Obligor thereon,
enforceable by the holder thereof in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights generally and
by equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a proceeding in
equity or at law; and all parties to each DFS Receivable had full legal
capacity to execute and deliver such DFS Receivable and all other documents
related thereto and to grant the security interest purported to be granted
thereby.
(vi) No Government Obligor. No Obligor of a DFS Receivable is the
United States of America or any State or any agency, department,
subdivision or instrumentality thereof.
(vii) Obligor Bankruptcy. At the Cutoff Date, no Obligor had been
identified on the records of DFS as being the subject of a current
bankruptcy proceeding.
(viii) Schedule of Receivables. The information with respect to DFS
Receivables set forth in the Schedule of Receivables is true and correct in
all material respects as of the close of business on the Cutoff Date.
(ix) Marking Records. By the Closing Date, DFS shall have caused the
portions of its electronic ledger relating to the DFS Receivables to be
clearly and unambiguously marked to show that the DFS Receivables have been
transferred absolutely from DFS to Ganis, from Ganis to the Depositor and
from the Depositor to the Trust.
(x) Computer Tape. The Computer Tape was complete and accurate as
of the Cutoff Date and includes a description of the same DFS Receivables
that are described in the Schedule of Receivables.
(xi) Chattel Paper. The DFS Receivables constitute chattel paper
within the meaning of the UCC as in effect in the states in which the
Obligors reside.
(xii) One Original. There is only one original executed copy of each
DFS Receivable.
(xiii) Receivable Files Complete. There exists a Receivable File
pertaining to each DFS Receivable and, to the knowledge of DFS , such
Receivable File contains (a) a fully executed original of the DFS
Receivable, with a fully executed assignment thereof in blank or from the
related Dealer to DFS, as the case may be, if such DFS Receivable was
acquired by DFS from a Dealer, (b) a certificate of physical damage
insurance, application form for such insurance signed by the Obligor or a
signed representation letter from the Obligor named in the DFS Receivable
pursuant to which the Obligor has
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agreed to obtain physical damage insurance for the Financed Vehicle, or
copies thereof, (c) the Lien Certificate or a copy of the application
therefor or a certification from the Servicer that it has received
confirmation from an authorized official of the appropriate governmental
office of the existence of the first lien of DFS with respect to the
related Financed Vehicle and (d) a credit application signed by the
Obligor, or a copy thereof. Each of such documents which is required to be
signed by the Obligor has been signed by the Obligor in the appropriate
spaces. Each of the foregoing documents has been correctly prepared. The
complete file for each DFS Receivable currently is in the possession of the
Servicer.
(xiv) Receivables in Force. No DFS Receivable has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such DFS
Receivable has not been released from the lien of the related DFS
Receivable in whole or in part. No provisions of any DFS Receivable have
been waived, altered or modified (except that DFS as servicer may have, for
administrative purposes, modified the due date of a DFS Receivable to a
different date in the month, which modification is reflected in its
servicing records) in any respect since its origination, except by
instruments or documents identified in the Receivable File. No DFS
Receivable has been modified as a result of application of the Soldiers'
and Sailors' Civil Relief Act of 1940, as amended.
(xv) Lawful Assignment. No DFS Receivable was originated in, or is
subject to the laws of, any jurisdiction the laws of which (a) would make
unlawful, void or voidable the transfer and assignment of such DFS
Receivable under this Agreement or the pledge of such DFS Receivable under
the Indenture or (b) would impair the validity or enforceability of any DFS
Receivable because of any such transfer, assignment or pledge.
(xvi) Good Title. No DFS Receivable has been sold, transferred,
assigned or pledged by DFS except pursuant to this Agreement; immediately
prior to the conveyance of the DFS Receivables by DFS to Ganis pursuant to
this Agreement, DFS had good and indefeasible title to the DFS Receivables,
free and clear of any Lien. No Dealer has a participation in, or other
right to receive, payments or proceeds in respect of any DFS Receivable.
DFS has not taken any action to convey any right to any Person that would
result in such Person having a right to payments received under the related
Insurance Policies or the related Dealer Agreements or to payments due
under such DFS Receivables.
(xvii) Security Interest in Financed Vehicle. Each DFS Receivable has
created a valid, binding and enforceable first priority security interest
in favor of DFS in the related Financed Vehicle, which is in full force and
effect. Each Lien Certificate contained in the Receivables Files shows DFS
named as the original secured party under each DFS Receivable and as the
holder of a first priority security interest in such Financed Vehicle. With
respect to each DFS Receivable for which the Lien Certificate is not
contained in the related Receivable File, the Servicer has either received
written
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evidence that such Lien Certificate showing DFS as first lienholder has
been applied for or has certified in writing in the related Receivable File
that it has received confirmation from the appropriate governmental office
of the existence of the first lien of DFS with respect to the related
Financed Vehicle. The security interest of DFS in each such Financed
Vehicle has been validly assigned by DFS to Ganis pursuant to this
Agreement. Each DFS Receivable is secured by an enforceable and perfected
first priority security interest in the Financed Vehicle in the name of DFS
as secured party, which security interest is prior to all other Liens upon
and security interests in such Financed Vehicle which now exist or may
hereafter arise or be created.
(xviii) All Filings Made; Valid Security Interest. All filings
(including, without limitation, UCC filings) required to be made by any
Person and actions required to be taken or performed by any Person in any
jurisdiction to give Ganis a first priority perfected ownership interest in
the DFS Receivables and the proceeds thereof have been made, taken or
performed, subject to the transfer thereof by Ganis to the Depositor. At
the Closing Date Ganis shall have a valid, subsisting and enforceable first
priority ownership interest in each Receivable and the proceeds thereof,
subject to the transfer thereof by Ganis to the Depositor.
(xix) No Impairment. DFS has not done and shall not do anything to
convey any right to any Person that would result in such Person having a
right to payments due under a Receivable or otherwise to impair the rights
of the Trust in any Receivable or the proceeds thereof.
(xx) No Release. No DFS Receivable is assumable by another Person in
a manner which would release the Obligor thereof from such Obligor's
obligations to DFS with respect to such DFS Receivable.
(xxi) No Defenses. No DFS Receivable is subject to any right of
rescission, setoff, counterclaim or defense and, to the knowledge of DFS,
no such right has been asserted or threatened with respect to any DFS
Receivable. The operation of the terms of any DFS Receivable or the
exercise of any right thereunder shall not render the DFS Receivable
unenforceable in whole or in part or subject to any right of rescission,
setoff, counterclaim or defense, and to the knowledge of DFS, no such right
of rescission, setoff, counterclaim or defense has been asserted with
respect thereto.
(xxii) No Default. To the knowledge of DFS, there has been no default,
breach, violation or event permitting acceleration under the terms of any
DFS Receivable (other than payment delinquencies of not more than 59 days),
and no condition exists or event has occurred and is continuing that with
notice, the lapse of time or both would constitute a default, breach,
violation or event permitting acceleration under the terms of any DFS
Receivable, and there has been no waiver of any of the foregoing. As of the
Cutoff Date, no Financed Vehicle relating to any DFS Receivable had been
repossessed.
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(xxiii) Insurance. Each DFS Receivable requires the Obligor to
maintain physical loss and damage insurance, naming DFS and its successors
and assigns as additional insured parties, and each DFS Receivable permits
the holder thereof to obtain physical loss and damage insurance at the
expense of the Obligor if the Obligor fails to do so. No Financed Vehicle
relating to any DFS Receivable was insured under a policy of force-placed
insurance on the Cutoff Date.
(xxiv) Past Due. At the Cutoff Date, no DFS Receivable was more than
59 days past due.
(xxv) No Liens. There are no Liens or claims which have been filed,
and, to the knowledge of DFS, none pending or threatened to be filed, for
work, labor, materials or unpaid state or federal taxes affecting the
Financed Vehicle securing any DFS Receivable which are or may become liens
prior or equal to the lien of the DFS Receivable.
(xxvi) Remaining Principal Balance. At the Cutoff Date, the Principal
Balance of each DFS Receivable set forth in the Schedule of Receivables is
true and accurate in all material respects.
(xxvii) Final Scheduled Maturity Date. No DFS Receivable has a final
maturity later than [ ].
(xxviii) Certain Characteristics. (A) Each DFS Receivable had a
remaining maturity, as of the Cutoff Date, of at least 1 month but not more
than [ ] months; (B) each DFS Receivable had an original maturity of at
least [ ] months but not more than [ ] months; (C) each DFS
Receivable had an original principal balance of at least $[ ] and not
more than $[ ]; (D) each DFS Receivable had a Principal Balance as of
the Cutoff Date of at least $[ ] and not more than $[ ]; (E) each DFS
Receivable has an Annual Percentage Rate of at least [ ]% and not more
than [ ]%; (F) [ ]% of the Receivables when originated were secured
by new Financed Vehicles; (G) no funds have been advanced by DFS, any
Dealer, or any Person acting on behalf of any of them in order to cause any
DFS Receivable to qualify under paragraph (xxv) above; (H) no DFS
Receivable has a Final Scheduled Maturity Date on or before [ ] or later
than [ ]; (I) as of the Cutoff Date, other than California ([ ]%),
Florida ([ ]%), Oregon ([ ]%) and Texas ([ ]%), no State
represented more than 5% by outstanding Pool Balance with respect to the
location of the Financed Vehicles; and (J) the Principal Balance of each
DFS Receivable set forth in Schedule of Receivables is true and accurate in
all material respects as of the Cutoff Date.
For purposes of determining whether DFS is obligated to purchase a DFS
Receivable on account of a breach of a representation and warranty pursuant
to this Section 3.01 or indemnify in respect of such breach pursuant to the
last paragraph of this Section 3.01, the determination as to whether a
representation or warranty that is made to
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the knowledge of DFS has been breached shall be made without regard to such
knowledge of DFS as if such representation and warranty were not qualified
by the knowledge of DFS.
Upon discovery by any party hereto of a breach of any of the
representations and warranties of DFS set forth in this Section, which
materially and adversely affects the value of the Receivables or the
interest therein of the Issuer or the Indenture Trustee (or which
materially and adversely affects the interest of the Issuer or the
Indenture Trustee in the related Receivable in the case of a representation
and warranty relating to a particular Receivable), the party discovering
such breach shall give prompt written notice to the other parties hereto.
On the last day of the Collection Period following the Collection Period
during which DFS discovers or receives notice of any such breach of any
such representation or warranty, if such breach shall not have been cured
in all material respects by such last day, then DFS shall purchase such
Receivable from the Issuer (or from the Depositor, if the Depositor is
required to purchase such Receivable pursuant to Section 3.01 of the
Transfer and Servicing Agreement) as of such last day at a price equal to
the Purchase Amount of such Receivable, which price DFS shall remit in the
manner specified in Section 5.05 of the Transfer and Servicing Agreement[;
provided, that, with respect to the representation set forth in paragraph
(xiii) above, such purchase shall be required with respect to a Receivable
only if any resulting breach is not cured (it being understood that if the
related Lien Certificate has been duly applied for from the applicable
governmental offices as evidenced by a copy of the application therefor,
the receipt of such Lien Certificate shall not be required to cure a breach
of the applicable representation and warranty) within 90 days after
completion of the review and examination of the Receivable File for such
Receivable pursuant to Section 3.02 of the Transfer and Servicing
Agreement]. Subject to the indemnification provisions contained in the last
paragraph of this Section, the sole remedy of Ganis, the Depositor, the
Issuer, the Owner Trustee or the Indenture Trustee with respect to a breach
of representations and warranties of DFS set forth in this Section shall be
to require DFS to purchase Receivables pursuant to this Section, subject to
the conditions contained herein.
DFS shall indemnify Ganis, the Depositor, the Issuer, the Owner
Trustee and the Indenture Trustee and hold each harmless against any loss,
damages, penalties, fines, forfeitures, legal fees and related costs,
judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of the representations and warranties of DFS contained in this Agreement;
provided that DFS shall not be liable for any indirect damages or for any
loss, damage, penalty, fine, forfeiture, legal fees and related costs,
judgments and other costs and expenses caused by the wilful misconduct of
Ganis, the Depositor, the Issuer, the Owner Trustee or the Indenture
Trustee.
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ARTICLE IV
DFS
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SECTION 4.01. Representations of DFS. DFS makes the following
representations on which each of Ganis, the Depositor and the Issuer is deemed
to have relied in acquiring the Receivables. The representations speak as of the
execution and delivery of this Agreement and as of the Closing Date, in the case
of the Receivables, and shall survive the transfer of the Receivables to the
Issuer and the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
(a) Organization and Good Standing. DFS is duly organized and validly
existing as a corporation in good standing under the laws of the State of
Nevada, with the corporate power and authority to own its properties and to
conduct its business as such properties are currently owned and such business is
presently conducted, and had at all relevant times, and has, the corporate
power, authority and legal right to acquire and own the Receivables.
(b) Due Qualification. DFS is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals, in all jurisdictions in which the ownership or lease of property or
the conduct of its business shall require such qualifications.
(c) Power and Authority. DFS has the corporate power and authority to
execute and deliver this Agreement and to carry out its respective terms; DFS
has full power and authority to transfer and assign the property to be
transferred and assigned to Ganis, and DFS shall have duly authorized such
transfer and assignment by all necessary corporate action; and the execution,
delivery and performance of this Agreement by DFS has been duly authorized by
DFS by all necessary corporate action.
(d) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of DFS enforceable in accordance with its terms.
(e) No Violation. The consummation of the transactions contemplated by this
Agreement by DFS and the fulfillment of the terms hereof by DFS do not conflict
with, result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the articles of
incorporation or bylaws of DFS, or any indenture, agreement or other instrument
to which DFS is a party or by which it is bound; or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than pursuant to the Basic
Documents); or violate any law or, to the best of DFS's knowledge, any order,
rule or regulation applicable to DFS of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over DFS or its properties.
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(f) No Proceedings. To DFS's best knowledge, there are no proceedings or
investigations pending or threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over DFS or its properties: (i) asserting the invalidity of this Agreement, the
Indenture or any of the other Basic Documents, the Notes or the Certificates,
(ii) seeking to prevent the issuance of the Notes or the Certificates or the
consummation of any of the transactions contemplated by this Agreement, the
Indenture or any of the other Basic Documents, (iii) seeking any determination
or ruling that might materially and adversely affect the performance by DFS of
its obligations under, or the validity or enforceability of, this Agreement, the
Indenture, any of the other Basic Documents, the Notes or the Certificates or
(iv) which might adversely affect the federal or state income tax attributes of
the Notes or the Certificates.
(g) Chief Executive Office. The chief executive office of DFS is located at
000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000.
SECTION 4.02. Corporate Existence. During the term of this Agreement, DFS
shall keep in full force and effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction of its incorporation and shall
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Basic Documents and each other instrument
or agreement necessary or appropriate to the proper administration of this
Agreement and the transactions contemplated hereby. In addition, all
transactions and dealings between the Depositor and DFS, and between DFS and
Ganis, shall be conducted on an arm's-length basis.
SECTION 4.03. Liability of DFS. DFS shall be liable in accordance herewith
only to the extent of the obligations specifically undertaken by DFS under this
Agreement.
SECTION 4.04. Indemnification. (a) DFS shall indemnify, defend and hold
harmless Ganis against any taxes that may at any time be asserted against Ganis
with respect to the transactions contemplated herein and in the other Basic
Documents including any sales, gross receipts, general corporation, tangible
personal property, privilege or license taxes (but not including any taxes
asserted with respect to, and as of the date of, the transfer of the Receivables
to Ganis or the issuance and original sale of the Notes and the Certificates, or
asserted with respect to ownership of the Receivables, or federal or other
income taxes arising out of distributions on the Notes and the Certificates) and
costs and expenses in defending against the same.
(b) DFS shall indemnify, defend and hold harmless Ganis and any of the
officers, directors, employees and agents of Ganis from and against any loss,
liability or expense incurred by reason of DFS's willful misfeasance, bad faith
or negligence in the performance of its duties under this Agreement, or by
reason of reckless disregard of its obligations and duties under this Agreement.
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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 DFS shall have made any
indemnity payments pursuant to this Section and the Person to or on behalf of
whom such payments are made thereafter shall collect any of such amounts from
others, such Person shall promptly repay such amounts to DFS, without interest.
SECTION 4.05. Merger or Consolidation of, or Assumption of the Obligations
of, DFS. Any Person (a) into which DFS may be merged or consolidated, (b) which
may result from any merger or consolidation to which DFS shall be a party or (c)
which may succeed to the properties and assets of DFS substantially as a whole,
which Person in any of the foregoing cases executes an agreement of assumption
to perform every obligation of DFS under this Agreement, shall be the successor
to DFS hereunder without the execution or filing of any document or any further
act by any of the parties to this Agreement; provided, however, that (i)
immediately after giving effect to such transaction, no representation or
warranty made by DFS in Section 3.01 shall have been breached (unless the
applicable breach shall have been cured in all material respects, or the
applicable Receivable shall have been purchased in accordance therewith), (ii)
DFS shall have delivered to Ganis, the Owner Trustee and the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply with
this Section and that all conditions precedent, if any, provided for in this
Agreement relating to such transaction have been complied with, (iii) DFS shall
have delivered to the Owner Trustee and the Indenture Trustee an Opinion of
Counsel either (A) stating that, in the opinion of such counsel, all financing
statements and continuation statements and amendments thereto have been executed
and filed that are necessary fully to preserve and protect the interest of the
Owner Trustee and Indenture Trustee, respectively, in the DFS Receivables and
reciting the details of such filings, or (B) stating that, in the opinion of
such counsel, no such action shall be necessary to preserve and protect such
interests. Notwithstanding anything herein to the contrary, the execution of the
foregoing agreement of assumption and compliance with clauses (i), (ii), and
(iii) above shall be conditions to the consummation of the transactions referred
to in clauses (a), (b) or (c) above.
SECTION 4.06. Limitation on Liability of DFS and Others. DFS and any
director, officer, employee or agent of DFS may rely in good faith on the advice
of counsel or on any document of any kind, prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. DFS shall not
be under any obligation to appear in, prosecute or defend any legal action that
shall not be incidental to its obligations under this Agreement, and that in its
opinion may involve it in any expense or liability.
SECTION 4.07. DFS May Own Notes and Certificates. DFS and any Affiliate
thereof may in its individual or any other capacity become the owner or pledgee
of Notes and Certificates with the same rights as it would have if it were not
DFS or an Affiliate thereof, except as expressly provided herein or in any other
Basic Document.
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ARTICLE V
Miscellaneous
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SECTION 5.01. Amendment. This Agreement may be amended by the parties
hereto, with the consent of the Indenture Trustee, but without the consent of
any other Person; provided, however, that, unless the Rating Agency Condition
shall have been satisfied with respect thereto, such action shall not (as
evidenced by an Opinion of Counsel delivered to the Owner Trustee and the
Indenture Trustee) adversely affect in any material respect the interests of any
Noteholder or Certificateholder.
Promptly after the execution of any such amendment or consent, Ganis shall
furnish written notification of the substance of such amendment or consent to
the Indenture Trustee and each of the Rating Agencies.
Prior to the execution of or the consent to any amendment to this
Agreement, the Indenture Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement. The Indenture Trustee may, but shall not be
obligated to, enter into or consent to any such amendment which affects the
Indenture Trustee's own rights, duties or immunities under this Agreement or
otherwise.
SECTION 5.02. Protection of Title; Change of Name, Identity, Corporate
Structure or Location, Etc.
(a) DFS shall execute and file such financing statements and cause to be
executed and filed such continuation statements, all in such manner and in such
places as may be required by law fully to preserve, maintain and protect the
interest of Ganis, the Issuer and of the Indenture Trustee in the Receivables
and in the proceeds thereof. DFS shall deliver (or cause to be delivered) to the
Owner Trustee and the Indenture Trustee file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as available
following such filing.
(b) DFS shall not change its name, identity or corporate structure in any
manner that would, could or might make any financing statement or continuation
statement filed in accordance with paragraph (a) above seriously misleading
within the meaning of Section 9-402(7) of the UCC, unless it shall have given
Ganis, the Owner Trustee and the Indenture Trustee at least five days' prior
written notice thereof and shall have promptly filed appropriate amendments to
all previously filed financing statements or continuation statements.
(c) DFS shall give Ganis, the Owner Trustee and the Indenture Trustee at
least 60 days' prior written notice of any relocation of its chief executive
office if, as a result of such relocation, the applicable provisions of the UCC
would require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall promptly file
any such amendment or new financing statement.
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(d) If at any time DFS shall propose to sell, grant a security interest
in, or otherwise transfer any interest in recreational vehicle receivables to
any prospective purchaser, lender or other transferee, DFS shall give (or shall
cause the Servicer to give) to such prospective purchaser, lender or other
transferee computer tapes, records or printouts (including any restored from
backup archives) that, if they shall refer in any manner whatsoever to any DFS
Receivable, shall indicate clearly that such DFS Receivable has been transferred
by DFS to Ganis and by Ganis to the Issuer and is owned by the Issuer and has
been pledged to the Indenture Trustee.
SECTION 5.03. Notices. All demands, notices, directions, communications
and instructions upon, to, or by DFS, Ganis, the Servicer, the Owner Trustee,
the Indenture Trustee or the Rating Agencies under this Agreement shall be in
writing, personally delivered or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in the
case of DFS, to Deutsche Financial Services Corporation, 000 Xxxxxxxxx Xxxxxx
Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Chief Legal Officer, (b) in the
case of Ganis, to Ganis Credit Corporation, 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000, Attention: Executive Vice President, (c) in the case of
the Depositor, to Deutsche Recreational Asset Funding Corporation, 000 Xxxxxxxxx
Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: President, (d) in the case
of the Issuer or the Owner Trustee, at the Corporate Trust Office (as defined in
the Trust Agreement), (e) in the case of the Indenture Trustee, at the Corporate
Trust Office, (f) in the case of Moody's, to Xxxxx'x Investors Service, Inc.,
ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and (g)
in the case of Standard & Poor's, to Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx,
Xxx Xxxx 00000, Attention of Asset Backed Surveillance Department; or, as to
each of the foregoing, at such other address as shall be designated by written
notice to the other Persons listed in this Section.
SECTION 5.04. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 4.05 of this Agreement, this
Agreement may not be assigned by DFS. DFS hereby acknowledges and consents to
(i) the transfer by Ganis to the Depositor pursuant to the Ganis/Depositor
Transfer Agreement of all right, title and interest of Ganis in, to and under
(but none of the obligations of Ganis under) the DFS Conveyed Property and this
Agreement, (ii) the transfer by Ganis to the Issuer pursuant to the Transfer and
Servicing Agreement of all right, title and interest of Ganis in, to and under
(but none of the obligations of the Depositor under) the DFS Conveyed Property
and this Agreement, including the representations and warranties of DFS in this
Agreement, together with all rights of Ganis with respect to any breach thereof,
including the right to require DFS to purchase Receivables in accordance with
this Agreement, and (iii) the other terms of and transactions contemplated by
the Transfer and Servicing Agreement and the other Basic Documents.
SECTION 5.05. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of DFS, Ganis, the Depositor, the Servicer,
the Issuer, the Owner Trustee, the Indenture Trustee and the Noteholders, and,
except as expressly provided in this Agreement, nothing in this Agreement shall
be construed to give to any other Person any legal or equitable
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right, remedy or claim under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 5.06. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 5.07. Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 5.08. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 5.09. Governing Law; Submission to Jurisdiction. THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE PERFECTION
(AND THE EFFECT OF PERFECTION OR NON-PERFECTION) OF THE INTERESTS OF ANY PERSON
IN CONVEYED PROPERTY ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK. EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE NON-
EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK, NEW YORK OVER ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THE BASIC DOCUMENTS, AND IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF THE ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE OR FEDERAL COURT, IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING.
SECTION 5.10. Nonpetition Covenants. Notwithstanding any prior termination
of this Agreement, DFS shall not, prior to the date which is one year and one
day after the termination of the Trust Agreement, acquiesce, petition or
otherwise invoke or cause the Issuer to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Issuer under any federal or state bankruptcy, insolvency or similar law, or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
Notwithstanding any prior termination of this Agreement, DFS shall not, prior to
the date which is one year and one day after the termination of the Trust
Agreement, acquiesce, petition or otherwise invoke or cause the Depositor to
invoke the process of any court
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or government authority for the purpose of commencing or sustaining a case
against the Depositor under any federal or state bankruptcy, insolvency or
similar law, or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Depositor or any substantial part
of its property, or ordering the winding up or liquidation of the affairs of the
Depositor.
SECTION 5.11. Waiver. Each party hereto hereby (i) acknowledges that
Xxxxx, Xxxxx & Xxxxx represents DFS, the Transferor, the Depositor and
Affiliates of the Transferor, DFS and the Depositor in connection with the
transactions contemplated by the Basic Documents, and represents the
institutions which are the Indenture Trustee and the Owner Trustee (or
Affiliates of such institutions) in other transactions, and (ii) waives any
conflict of interest relating thereto. Notwithstanding any other provision of
this Agreement, Xxxxx, Xxxxx & Xxxxx is entitled to rely on this Section.
SECTION 5.12. Separate Corporate Existence. Each party hereto hereby
acknowledges that the Trust is entering into the transactions contemplated by
the Basic Documents in reliance upon (i) DFS's identity as a legal identity
separate from the Depositor and (ii) Ganis's identity as a legal entity separate
from the Depositor. Therefore, until the first day following the termination of
the Trust Agreement on which all of the Securities have been paid in full, each
party hereto shall take all reasonable steps to make it apparent to third
Persons that each of DFS and Ganis is an entity with assets and liabilities
distinct from those of the Depositor and that the Depositor is not a division of
DFS, Ganis or any other Person. Without limiting the foregoing, each party
hereto shall operate and conduct its respective businesses and otherwise act in
a manner which is consistent with Section 10.13 of the Transfer and Servicing
Agreement.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this DFS/Ganis Transfer
Agreement to be duly executed by their respective officers as of the day and
year first above written.
DEUTSCHE FINANCIAL SERVICES CORPORATION
By:
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Name:
----------------------------------
Title:
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GANIS CREDIT CORPORATION
By:
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Name:
----------------------------------
Title:
---------------------------------
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