99.2
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CERTIFICATE PURCHASE AGREEMENT
among
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.,
as Seller,
DEUTSCHE FINANCIAL SERVICES CORPORATION,
as Servicer
FALCON ASSET SECURITIZATION CORPORATION,
PREFERRED RECEIVABLES FUNDING CORPORATION, and
INTERNATIONAL SECURITIZATION CORPORATION,
as the Conduit Purchasers,
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent for the Purchasers,
and
THE FIRST NATIONAL BANK OF CHICAGO,
as a Committed Purchaser
dated as of June 28, 1999
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Defined Terms..........................................................1
SECTION 1.02 Other Definitional Provisions..................................................5
ARTICLE II
PURCHASE AND SALE
SECTION 2.01 Purchase and Sale of the Certificates..........................................5
SECTION 2.02 Purchase Price.................................................................5
SECTION 2.03 Purchase Procedures............................................................5
SECTION 2.04 Extension of Purchase Expiration Date..........................................7
SECTION 2.05 Reduction or Increase of Maximum Funding Amount................................7
SECTION 2.06 Calculation of Monthly Interest; Fees..........................................7
SECTION 2.07 Allocation of Tranches Other Than Pursuant to a Purchase Request...............8
SECTION 2.08 Notification as to Purchasers, Certificate Rates, Liquidity Puts and
Base Rate Trigger Events.......................................................9
ARTICLE III
CLOSING
SECTION 3.01 Closing........................................................................9
SECTION 3.02 Transactions to be Effected at the Closing....................................10
ARTICLE IV
CONDITIONS PRECEDENT TO
PURCHASE ON THE CLOSING DATE
SECTION 4.01 Performance by the Seller and Servicer........................................10
SECTION 4.02 Representations and Warranties................................................10
SECTION 4.03 Corporate Documents...........................................................10
SECTION 4.04 Opinions of Counsel to DFS and the Seller.....................................11
SECTION 4.05 Opinion of Counsel to the Trustee.............................................11
SECTION 4.06 Uniform Commercial Code Filings...............................................11
SECTION 4.07 Documents.....................................................................11
SECTION 4.08 No Actions or Proceedings.....................................................11
SECTION 4.09 Approvals and Consents........................................................11
SECTION 4.10 Officer's Certificates........................................................11
SECTION 4.11 Accounts......................................................................11
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SECTION 4.12 Reports......................................................................12
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE SELLER
SECTION 5.01 Pooling and Servicing Agreement..............................................12
SECTION 5.02 Authority, etc. .............................................................12
SECTION 5.03 Certificates.................................................................13
SECTION 5.04 Litigation...................................................................13
SECTION 5.05 The Receivables..............................................................13
SECTION 5.06 Taxes, etc. .................................................................13
SECTION 5.07 Trust Existence and Authorization............................................13
SECTION 5.08 Financial Condition of the Seller............................................14
SECTION 5.09 Use of Proceeds..............................................................14
SECTION 5.10 Securities Act...............................................................14
SECTION 5.11 Investment Company Act.......................................................14
SECTION 5.12 Full Disclosure..............................................................14
ARTICLE VA
REPRESENTATIONS AND WARRANTIES OF DFS
SECTION 5A.01 Pooling and Servicing Agreement and Receivables Contribution
and Sale Agreement...........................................................14
SECTION 5A.02 Authority, etc. .............................................................15
SECTION 5A.03 Litigation...................................................................15
SECTION 5A.04 The Receivables..............................................................15
SECTION 5A.05 Taxes, etc. .................................................................15
SECTION 5A.06 Trust Existence and Authorization............................................16
SECTION 5A.07 Financial Condition of DFS...................................................16
SECTION 5A.08 Full Disclosure..............................................................16
SECTION 5A.09 Year 2000 Plan...............................................................16
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE ADMINISTRATIVE AGENT AND THE PURCHASERS
SECTION 6.01 Organization.................................................................17
SECTION 6.02 Authority, etc. .............................................................17
SECTION 6.03 Securities Act...............................................................17
SECTION 6.04 Investment Company Act.......................................................18
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ARTICLE VII
COVENANTS OF THE SELLER
SECTION 7.01 Access to Information........................................................18
SECTION 7.02 Security Interests; Further Assurances.......................................19
SECTION 7.03 Covenants....................................................................19
SECTION 7.04 Amendments...................................................................19
ARTICLE VIIA
COVENANTS OF DFS
SECTION 7A.01 Information from DFS.........................................................19
SECTION 7A.02 Access to Information........................................................20
SECTION 7A.03 Security Interests; Further Assurances.......................................20
SECTION 7A.04 Covenants....................................................................20
SECTION 7A.05 Amendments...................................................................20
ARTICLE VIII
ADDITIONAL COVENANTS
SECTION 8.01 Legal Conditions to Closing..................................................21
SECTION 8.02 Expenses.....................................................................21
SECTION 8.03 Mutual Obligations...........................................................21
SECTION 8.04 Restrictions on Transfer.....................................................21
SECTION 8.05 Consents, etc. ..............................................................21
ARTICLE IX
INDEMNIFICATION
SECTION 9.01 Indemnification..............................................................22
SECTION 9.02 Procedure....................................................................22
SECTION 9.03 Defense of Claims............................................................22
SECTION 9.04 Indemnity for Taxes, Reserves and Expenses...................................23
SECTION 9.05 Costs, Expenses, Taxes, Breakage Payments and Increased Costs
under Certificate Purchase Agreement and Program Facility....................25
ARTICLE X
THE ADMINISTRATIVE AGENT
SECTION 10.01 Authorization and Action.....................................................26
SECTION 10.02 Administrative Agent's Reliance, etc. .......................................26
SECTION 10.03 Administrative Agent and Affiliates..........................................27
SECTION 10.04 Indemnification..............................................................27
SECTION 10.05 Purchase Decision............................................................27
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SECTION 10.06 Successor Administrative Agent..............................................28
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Amendments..................................................................28
SECTION 11.02 Notices.....................................................................28
SECTION 11.03 No Waiver; Remedies.........................................................28
SECTION 11.04 Binding Effect; Assignability...............................................29
SECTION 11.05 Provision of Documents and Information......................................30
SECTION 11.06 GOVERNING LAW...............................................................30
SECTION 11.07 No Proceedings..............................................................30
SECTION 11.08 Execution in Counterparts...................................................30
SECTION 11.09 No Recourse.................................................................30
SECTION 11.10 Limited Recourse............................................................31
SECTION 11.11 Survival....................................................................31
SECTION 11.12 Tax Characterization........................................................31
SECTION 11.13 Severability; Certificate Rate Limitation...................................31
SECTION 11.14 Headings....................................................................32
SECTION 11.15 Submission to Jurisdiction..................................................32
EXHIBIT A Form of Purchase Request
SCHEDULE I Addresses for Notice
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CERTIFICATE PURCHASE AGREEMENT ("Certificate Purchase Agreement") dated as
of June 28, 1999, among Deutsche Floorplan Receivables, L.P., as Seller (in such
capacity being referred to as the "Seller"), Deutsche Financial Services
Corporation, in its capacity as Servicer (in such capacity being referred to as
"DFS" or "Servicer"), the Conduit Purchasers, the Administrative Agent and the
Committed Purchaser named herein.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Defined Terms. Capitalized terms used herein without
definition shall have the meanings set forth in the Pooling and Servicing
Agreement (as defined below) or the Series Supplement (as defined below), as
applicable. If a term used herein without definition is defined both in the
Pooling and Servicing Agreement and the Series Supplement, it shall have the
meaning set forth in the Series Supplement. Additionally, the following terms
shall have the following meanings:
"Additional Amounts" means all amounts owed by the Seller, without
duplication, (i) pursuant to Article IX hereof, (ii) pursuant to the Fee Letter
(other than the "Arrangement Fee" and the "Commitment Fee" referred to therein)
and (iii) as Breakage Amounts.
"Administrative Agent" means FNBC in its capacity as Administrative
Agent for the Purchasers.
"Applicable Indemnifying Party" shall have the meaning set forth in
Section 9.02 hereof.
"Asset Purchase Agreement" means each asset purchase agreement dated
as of the same date as this Agreement among a Conduit Purchaser, FNBC, as Agent,
and each of the Liquidity Purchasers party thereto, as the same may from time to
time be amended and restated or otherwise modified from time to time.
"Assignment and Acceptance" means an assignment and acceptance
agreement entered into by a Purchaser, a permitted assignee and the
Administrative Agent, pursuant to which such assignee may become a party to this
Certificate Purchase Agreement.
"Base Rate Trigger Event" means, with respect to a Conduit Purchaser,
that such Conduit Purchaser is unable to raise funds through the issuance of
Commercial Paper. A Base Rate Trigger Event with respect to a Conduit Purchaser
shall cease to exist when such Conduit Purchaser becomes able to raise funds
through the issuance of Commercial Paper.
"Breakage Amounts" has the meaning specified in Section 2.07(c)
hereof.
"Closing" has the meaning specified in Section 3.01 hereof.
"Closing Date" has the meaning specified in Section 3.01 hereof.
"Commercial Paper" means, with respect to any Conduit Purchaser,
promissory notes of such Conduit Purchaser issued by such Conduit Purchaser in
the commercial paper market.
"Commission" has the meaning specified in Section 6.03 hereof.
"Commitment Fee" has the meaning specified in the Fee Letter.
"Committed Purchaser" means FNBC and each of its assigns (with respect
to its commitment to make Purchases) that shall become a party to this
Certificate Purchase Agreement pursuant to Section 11.04 hereof.
"Conduit Purchasers" means Falcon Asset Securitization Corporation, a
Delaware corporation ("Falcon"), Preferred Receivables Funding Corporation, a
Delaware corporation ("PREFCO"), International Securitization Corporation, a
Delaware corporation ("ISC"), and any of their respective permitted assigns that
is a RIC.
"DFS" means Deutsche Financial Services Corporation, a Nevada
corporation, in its capacity as Servicer.
"DFS Losses" has the meaning specified in Section 9.01(b) hereof.
"Federal Bankruptcy Code" means the bankruptcy code of the United
States of America codified in Title 11 of the United States Code.
"Fee Letter" means the agreement dated June 25, 1999 between the
Seller and the Administrative Agent setting forth certain fees payable by the
Seller in connection with the purchase of the Certificates by the Administrative
Agent for the benefit of the Purchasers.
"FNBC" means The First National Bank of Chicago, a national banking
association, and its successors.
"Governmental Actions" means any and all consents, approvals, permits,
orders, authorizations, waivers, exceptions, variances, exemptions or licenses
of, or registrations, declarations or filings with, any Governmental Authority
required under any Governmental Rules.
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"Governmental Authority" means the United States of America, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government and having jurisdiction over the applicable Person.
"Governmental Rules" means any and all laws, statutes, codes, rules,
regulations, ordinances, orders, writs, decrees and injunctions, of any
Governmental Authority and any and all legally binding conditions, standards,
prohibitions, requirements and judgments of any Governmental Authority.
"Indemnified Party" means any Purchaser, the Administrative Agent or
any of their officers, directors, employees, agents, representatives, assignees
or Affiliates.
"Initial Series 1999-1 Certificates" shall mean one or more Series
1999-1 Certificates, issued on the Closing Date in the name of the
Administrative Agent.
"ISC" has the meaning set forth in the definition of Conduit
Purchaser.
"Liquidity Agent" means FNBC in its capacity as "Agent" pursuant to an
Asset Purchase Agreement.
"Liquidity Purchasers" means each of the liquidity purchasers party to
an Asset Purchase Agreement.
"Liquidity Put" means, with respect to a Conduit Purchaser, that such
Conduit Purchaser, pursuant to its Asset Purchase Agreement, has sold to one or
more Liquidity Purchasers an interest in such Conduit Purchaser's interest in
the Series 1999-1 Certificates funded or maintained by such Conduit Purchaser at
the time of such sale.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement, as amended and restated as of October 1, 1996, among the Seller, the
Servicer, and The Chase Manhattan Bank, as Trustee, as the same may be amended,
amended and restated or otherwise modified from time to time.
"Purchase" means a purchase of a Series 1999-1 Certificate pursuant to
this Certificate Purchase Agreement.
"Purchase Date" means the date on which a Purchase occurs.
"Purchase Expiration Date" means the last day of the Commitment
Period, as such date may from time to time be modified in accordance with
Section 2.04 hereof.
"Purchase Price" has the meaning specified in Section 2.02 hereof.
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"Purchase Request" means a written request substantially in the form
of Exhibit A hereto.
"Purchaser Parties" means, collectively, the Purchasers and the
Administrative Agent.
"Purchaser Percentage" of any Committed Purchaser means (a) with
respect to FNBC, the percentage set forth on the signature page to this
Certificate Purchase Agreement as such Committed Purchaser's Purchaser
Percentage, or such percentage as reduced by any Assignment and Acceptance
entered into with an assignee, or (b) with respect to a Committed Purchaser that
has entered into an Assignment and Acceptance, the percentage set forth therein
as such Purchaser's Purchaser Percentage, or such percentage as reduced by any
Assignment and Acceptance entered into between such Committed Purchaser and an
assignee.
"Purchasers" means the Conduit Purchasers, the Liquidity Purchasers
and the Committed Purchasers.
"Put Portion" means, with respect to a Liquidity Put, the portion of
the Invested Amount corresponding to the portion of the Series 1999-1
Certificates that is funded or maintained by the Liquidity Purchasers pursuant
to such Liquidity Put.
"RIC" means a receivables investment company administered by the
Administrative Agent or an Affiliate thereof which obtains funding from the
issuance of commercial paper or other notes.
"Seller Losses" has the meaning specified in Section 9.01(a) hereof.
"Series Documents" means the Pooling and Servicing Agreement, the
Series Supplement, the Receivables Contribution and Sale Agreement and this
Certificate Purchase Agreement.
"Series Supplement" means the Series 1999-1 Supplement dated as of
June 1, 1999 among the Seller, the Servicer, and The Chase Manhattan Bank, as
Trustee, as the same may be amended, amended and restated or otherwise modified
from time to time.
"Third Party Claim" has the meaning specified in Section 9.02 hereof.
"Tranche Period" means a CP Tranche Period or a LIBO Tranche Period,
as the case may be.
"Unallocated Balance" means, as of any Business Day, the sum of (i)
the portion of the Invested Amount for which interest is then being calculated
by reference to the Base Rate, and (ii) the portion of the Invested Amount
allocated to any CP Tranche or LIBO Tranche that expires on such Business Day.
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SECTION 1.02 Other Definitional Provisions. (a) All terms defined in
this Certificate Purchase 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 herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.01, and accounting terms partially defined in Section 1.01 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 herein are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained herein shall
control.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Certificate Purchase Agreement shall refer to this
Certificate Purchase Agreement as a whole and not to any particular provision of
this Certificate Purchase Agreement; and Section, subsection, Schedule and
Exhibit references contained in this Certificate Purchase Agreement are
references to Sections, subsections, the Schedules and Exhibits in or to this
Certificate Purchase Agreement unless otherwise specified.
ARTICLE II
PURCHASE AND SALE
SECTION 2.01 Purchase and Sale of the Certificates. On the terms and
subject to the conditions set forth in this Certificate Purchase Agreement, and
in reliance on the covenants, representations, warranties and agreements herein
set forth, during the Commitment Period (i) the Seller from time to time may
offer to sell Series 1999-1 Certificates to the Administrative Agent, on behalf
of the Purchasers; and (ii) (a) the Administrative Agent, on behalf of the
Conduit Purchasers, may elect to purchase such offered Series 1999-1
Certificates, and (b) the Administrative Agent, on behalf of the Committed
Purchasers, shall purchase each such offered Series 1999-1 Certificate that the
Administrative Agent is not purchasing on behalf of the Conduit Purchasers.
SECTION 2.02 Purchase Price. Each Series 1999-1 Certificate shall be
purchased by the Administrative Agent on behalf of the applicable Purchasers,
for a price, in U.S. dollars (the "Purchase Price"), equal to 100% of the
initial principal balance of such Series 1999-1 Certificate.
SECTION 2.03 Purchase Procedures. (a) Notice. The Seller may request
a Purchase by sending the Administrative Agent (by facsimile) a Purchase Request
at least two Business Days prior to the proposed Purchase Date (or, in the case
of the first Purchase Date, on or before such Purchase Date). Each Purchase
Request shall state (i) the applicable Purchase Date; (ii) the applicable
Purchase Prices; (iii) what portion of the Invested Amount represented by such
Purchase Prices is to be allocated to the Base Rate Tranche, a CP Tranche or a
LIBO
5
Tranche; and (iv) if any portions thereof are to be allocated to a CP Tranche or
a LIBO Rate Tranche, the length of the related CP Tranche Period or LIBO Tranche
Period. Each Purchase shall be requested in an aggregate principal amount of
$5,000,000 and integral multiples of $1,000,000 in excess thereof; provided,
that a Purchase may be requested in the entire remaining Maximum Funding Amount;
provided, further, that if a Base Rate Trigger Event has occurred and is
continuing with respect to a Conduit Purchaser on a Purchase Date, the portion
of the Invested Amount that was to have been allocated to a CP Tranche
commencing on such Purchase Date with respect to such Conduit Purchaser shall be
deemed to have been allocated to the Base Rate Tranche.
(b) Purchases. On each Purchase Date identified in a Purchase Request: (i)
the Administrative Agent shall, on behalf of the Conduit Purchasers (unless the
Conduit Purchasers decline to participate in such Purchase), purchase Series
1999-1 Certificates having an aggregate outstanding principal balance equal to
the Purchase Prices specified in such Purchase Request; and (ii) to the extent
necessary to fund such Purchases, the Administrative Agent, on behalf of the
Committed Purchasers, shall purchase such Series 1999-1 Certificates on such
Purchase Date.
(c) Payment of Purchase Price. On each Purchase Date, the Administrative
Agent shall remit the aggregate Purchase Prices for the Purchases on such
Purchase Date not later than 1:00 p.m. New York City time on the Purchase Date
by wire transfer of immediately available funds in U.S. dollars to the Seller's
account no. 990101107, ABA# 000000000, maintained at Bank of America Nevada
(ref: Deutsche Floorplan Receivables, L.P.) (or such other account as may from
time to time be specified by the Seller in a notice to the Administrative
Agent).
(d) Conditions Precedent. The Purchase of the Initial Series 1999-1
Certificates shall be subject to the conditions precedent set forth in Article
IV. Each Purchase following the Purchase of the Initial Series 1999-1
Certificates shall be subject to the conditions precedent that:
(i) the Administrative Agent will have received copies of all
statements and all reports required to be delivered by the Servicer to the
Trustee after the Closing Date pursuant to Section 3.4 of the Pooling and
Servicing Agreement and Section 5.2 of the Series Supplement;
(ii) each of the representations and warranties of the Seller and the
Servicer made in the Series Documents shall be true and correct in all
material respects as of the applicable Purchase Date (except to the extent
they expressly relate to an earlier or later time); and
(iii) no Early Amortization Event (or event which, with the giving of
notice or passage of time, or both, would constitute an Early Amortization
Event) shall have occurred and be continuing.
6
In addition, no Committed Purchaser shall be required to make a portion of
any Purchase to the extent that, after giving effect thereto, (A) the portion of
the Invested Amount funded or maintained by such Committed Purchaser (in each
case pursuant to this Certificate Purchase Agreement) would exceed (B) the
result of (I) its Purchaser Percentage multiplied by (II) the excess, if any, of
(x) the Maximum Funding Amount over (y) the portion of the Invested Amount then
funded or maintained by the Conduit Purchasers.
SECTION 2.04 Extension of Purchase Expiration Date. The parties to
this Certificate Purchase Agreement may mutually agree in writing to the
extension of the Purchase Expiration Date to a date no later than 364 days
following the date of such extension; provided that the Rating Agency Condition
shall have been satisfied with respect to such extension; provided, further,
that no agreement to any such extension shall be effective with respect to a
particular Conduit Purchaser unless the available commitments of the Liquidity
Purchasers under the Asset Purchase Agreement with respect to such Conduit
Purchaser and the credit and/or liquidity coverage committed under the
program-wide credit and/or liquidity facilities for the commercial paper program
of such Conduit Purchaser will continue to be in effect after such extension in
the aggregate amounts, and for the period of the time, necessary to maintain the
then-current ratings of such Conduit Purchaser's Commercial Paper.
SECTION 2.05 Reduction or Increase of Maximum Funding Amount. (a) The
Seller may reduce in whole or in part the Maximum Funding Amount (but not below
the Invested Amount) by giving the Administrative Agent written notice thereof
at least five Business Days before such reduction is to take place; provided,
however, that any partial reduction shall be in an aggregate amount of
$30,000,000, or any integral multiples of $15,000,000 in excess thereof. Any
such reduction in the Maximum Funding Amount shall be permanent unless a
subsequent increase in the Maximum Funding Amount is made in accordance with
Section 2.05(b). The Seller shall pay the applicable Purchasers any accrued and
unpaid Commitment Fee on the date of such reduction with respect to the
reduction amount.
(b) The Seller may request an increase in the Maximum Funding Amount
by written notice to the Administrative Agent at least 30 days before the date
on which such increase is requested to become effective. No such increase will
take effect unless (i) the Administrative Agent and one or more Conduit
Purchasers agree thereto, (ii) the available commitments of the Purchasers
(other than the Conduit Purchasers) hereunder or under the Asset Purchase
Agreement and the credit and/or liquidity coverage committed under the program-
wide credit and/or liquidity facilities for the commercial paper program of each
agreeing Conduit Purchaser are increased as necessary to maintain the then-
current ratings of such Conduit Purchaser's Commercial Paper, and (iii) the
Rating Agency Condition shall have been satisfied.
SECTION 2.06 Calculation of Monthly Interest; Fees. (a) On the fifth
day of each month (or if such day is not a Business Day, the next Business Day),
the Administrative Agent (i) shall calculate the amount of Monthly Interest (and
any Additional CP Interest or Additional Base Rate Interest) for the next
Distribution Date and (ii) shall notify the Servicer of
7
the same in writing. The Servicer shall include such information in the next
Distribution Date Statement that it provides to the Trustee pursuant to Section
5.2 of the Series Supplement.
(b) On the third Business Day preceding each LIBO Payment Date, the
Administrative Agent (i) shall calculate the LIBO Interest Amount (and any
Additional LIBO Interest) for such LIBO Payment Date and (ii) shall notify the
Servicer of the same in writing. The Servicer shall include such information in
the LIBO Payment Date Statement that it provides to the Trustee in respect of
such LIBO Payment Date pursuant to Section 5.2 of the Series Supplement.
(c) The Seller agrees to pay and to instruct the Trustee to pay from
amounts distributable to the Seller all amounts payable by the Seller pursuant
to the Fee Letter to the account designated by the Administrative Agent in the
Fee Letter.
SECTION 2.07 Allocation of Tranches Other Than Pursuant to a Purchase
Request. (a) With respect to any Business Day, the Seller (or the Servicer on
its behalf) may elect to allocate all or any portion of the Unallocated Balance
to one or more CP Tranches or LIBO Tranches with CP Tranche Periods or LIBO
Tranche Periods commencing on such Business Day by giving the Administrative
Agent written or telephonic (confirmed in writing) notice thereof, which notice
must be received by the Administrative Agent (with a copy to the Trustee and the
Servicer or the Seller, as applicable) prior to 1:00 p.m., New York City time,
(x) one Business Day prior to such Business Day, in the case of a CP Tranche or
a Base Rate Tranche, or (y) three Business Days prior to such Business Day, in
the case of a LIBO Tranche. Such notice shall specify (i) the applicable
Business Day, (ii) whether such Tranche is to be a CP Tranche or a LIBO Tranche,
(iii) the CP Tranche Period for each CP Tranche and the LIBO Tranche Period for
each LIBO Tranche to which a portion of the Unallocated Balance is to be
allocated and (iv) the portion of the Unallocated Balance being allocated to
each such CP Tranche and LIBO Tranche; provided that no portion of the Invested
Amount funded by a particular Conduit Purchaser shall be allocated to a CP
Tranche with respect to such Conduit Purchaser so long as a Base Rate Trigger
Event exists with respect to such Conduit Purchaser. If the Administrative Agent
shall not have received timely notice as described above with respect to any
portion of the Unallocated Balance, such portion: (i) in the case of an expiring
CP Tranche, shall be continued as a CP Tranche for such period (not to exceed 90
days) as the Administrative Agent may select (but only, with respect to any
particular Conduit Purchaser, if no Base Rate Trigger Event shall exist with
respect to such Conduit Purchaser on the last day of the related expiring CP
Tranche Period); and (ii) in all other cases shall be continued as part of, or
shall be deemed allocated to, the Base Rate Tranche until such time as it is
reallocated in accordance with this Section 2.07(a).
(b) If a Liquidity Put has occurred, any portion of the Invested Amount
constituting the related Put Portion shall bear interest, but only following
such occurrence, at the Base Rate and shall be deemed, but only following such
occurrence, to be allocated to a Base Rate Tranche until such time as such
portion of the Invested Amount shall be reallocated pursuant to Section 2.07(a).
8
(c) If a Liquidity Put occurs on a day other than the last day of a CP
Tranche, any breakage costs actually incurred by the applicable Conduit
Purchaser relating to such Liquidity Put shall be payable by the Seller to such
Conduit Purchaser. If the reduction in the outstanding balance of the Series
1999-1 Certificates on a Principal Reduction Date pursuant to Section
4.7(a)(iii) of the Series Supplement results in breakage costs actually incurred
by Liquidity Purchasers in respect of the outstanding LIBO Tranches, such
breakage costs shall be payable by the Seller to the Administrative Agent for
the benefit of such Liquidity Purchasers. The breakage costs referred to in
this paragraph shall be referred to collectively as the "Breakage Amounts".
SECTION 2.0 Notification as to Purchasers, Certificate Rates,
Liquidity Puts and Base Rate Trigger Events.
(a) On each Purchase Date the Administrative Agent shall notify the
Seller and the Servicer as to the Purchasers on whose behalf the Administrative
Agent made Purchases on such Purchase Date. Promptly following receipt of such
notice, the Seller shall instruct the Trustee to authenticate and deliver to the
Administrative Agent the Series 1999-1 Certificates purchased on such Purchase
Date.
(b) On the fifth day of each Collection Period (or, if such fifth day
is not a Business Day, on the next Business Day), the Administrative Agent shall
notify the Servicer as to (i) the CP Rate for each CP Tranche outstanding during
the preceding Collection Period, and (ii) the Base Rate applicable to each day
during such preceding Collection Period on which part of the Invested Amount was
allocated to the Base Rate Tranche.
(c) On the first day of each LIBO Tranche Period, the Administrative
Agent shall notify the Servicer as to the LIBO Rate for such LIBO Tranche.
(d) Promptly (but in no event more than one Business Day) after the
occurrence of a Liquidity Put or a Base Rate Trigger Event, the Administrative
Agent shall notify the Servicer as to (i) the occurrence of such Liquidity Put
or Base Rate Trigger Event and (ii) the amount of any Breakage Amounts.
ARTICLE III
CLOSING
SECTION 3.01 Closing. The closing (the "Closing") of the purchase and
sale of the Initial Series 1999-1 Certificates shall take place at the offices
of Xxxxx, Xxxxx & Xxxxx in Chicago, Illinois on the date of this Certificate
Purchase Agreement, or if the conditions to closing set forth in Article IV of
this Certificate Purchase Agreement shall not have been satisfied or waived by
such date, as soon as practicable after such conditions shall have been
9
satisfied or waived, or at such other time, date and place as the parties shall
agree upon (the date of the Closing being referred to herein as the "Closing
Date").
SECTION 3.02 Transactions to be Effected at the Closing. At the
Closing (a) the Administrative Agent will deliver to the Seller funds in an
amount equal to the sum of the Purchase Prices for the Initial Series 1999-1
Certificates (by wire transfer of immediately available funds in U.S. dollars to
the bank account designated in Section 2.03(d)), net of the "Arrangement Fee"
referred to in the Fee Letter; and (b) the Seller shall instruct the Trustee to
authenticate and deliver the Initial Series 1999-1 Certificates to the
Administrative Agent in satisfaction of the Seller's obligation to the
Administrative Agent hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO
PURCHASE ON THE CLOSING DATE
The Purchase of the Initial Series 1999-1 Certificates is subject to
the satisfaction at the time of the Closing of the following conditions (any or
all of which may be waived by the Administrative Agent in its sole discretion):
SECTION 4.01 Performance by the Seller and Servicer. All the terms,
covenants, agreements and conditions of the Series Documents to be complied with
and performed by the Seller and the Servicer at or before the Closing shall have
been complied with and performed in all material respects. Without limiting the
foregoing, DFS shall have indicated in its books and records, which may include
its computer files, the matters specified in the third paragraph of Section 2.1
of the Pooling and Servicing Agreement.
SECTION 4.02 Representations and Warranties. Each of the
representations and warranties of the Seller and the Servicer made in the Series
Documents shall be true and correct in all material respects as of the time of
the Closing (except to the extent they expressly relate to an earlier or later
time).
SECTION 4.03 Corporate Documents. The Administrative Agent shall have
received copies of (a) the (i) certificate of incorporation and by-laws of DFS,
(ii) board of directors resolutions of DFS with respect to the transactions
contemplated by this Certificate Purchase Agreement, and (iii) incumbency
certificate of DFS, each certified by appropriate corporate authorities and (b)
the (i) certificate of limited partnership and agreement of limited partnership
of the Seller, (ii) board of directors resolutions of the general partner of the
Seller with respect to the transactions contemplated by this Certificate
Purchase Agreement, and (iii) incumbency certificate of the general partner of
the Seller, each certified by appropriate corporate authorities.
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SECTION 4.04 Opinions of Counsel to DFS and the Seller. Counsel to DFS
and the Seller shall have delivered to the Administrative Agent (a) favorable
opinions, dated the Closing Date and reasonably satisfactory in form and
substance to the Administrative Agent and its counsel, covering due
authorization, enforceability, true sale and non-consolidation, and perfection
matters and (b) Tax Opinions covering the matters referred to in Section
6.3(b)(vi) of the Pooling and Servicing Agreement, in each case addressed to the
Administrative Agent.
SECTION 4.05 Opinion of Counsel to the Trustee. Counsel to the Trustee
shall have delivered to the Administrative Agent a favorable opinion, dated the
Closing Date and reasonably satisfactory in form and substance to the
Administrative Agent and its counsel, and addressed to the Administrative Agent.
SECTION 4.06 Uniform Commercial Code Filings. The Administrative Agent
shall have received evidence satisfactory to it of the completion of all Uniform
Commercial Code filings as may be necessary to perfect or evidence the
assignment by DFS to the Seller and by the Seller to the Trust of their
respective ownership interests in the Receivables and the proceeds thereof and
the security interest granted pursuant to Section 2.1 of the Pooling and
Servicing Agreement.
SECTION 4.07 Documents. The Administrative Agent shall have received a
duly executed counterpart of each of the Series Documents and each and every
document or certification delivered by any party in connection with the Series
Supplement or this Certificate Purchase Agreement, and each such document shall
be in full force and effect.
SECTION 4.08 No Actions or Proceedings. No action, suit, proceeding or
investigation by or before any Governmental Authority shall have been instituted
to restrain or prohibit the consummation of, or to invalidate, the transactions
contemplated by the Series Documents and the documents related thereto in any
material respect.
SECTION 4.09 Approvals and Consents. All Governmental Actions of all
Governmental Authorities required with respect to the transactions contemplated
by the Series Documents and the other documents related thereto shall have been
obtained or made.
SECTION 4.10 Officer's Certificates. The Administrative Agent shall
have received certificates from DFS and the Seller in form and substance
reasonably satisfactory to the Administrative Agent and its counsel, dated as of
the Closing Date, certifying as to the satisfaction of the conditions set forth
in Sections 4.01 and 4.02 hereof with respect to DFS and the Seller,
respectively.
SECTION 4.11 Accounts. The Administrative Agent shall have received
evidence that the Series 1999-1 Accounts have been established in accordance
with the terms of the Pooling and Servicing Agreement and Series Supplement.
11
SECTION 4.12 Reports. The Administrative Agent shall have received
copies of (a) the most recent Distribution Date Statement provided to the
Trustee pursuant to Section 3.4 of the Pooling and Servicing Agreement and (b)
the most recent reports furnished pursuant to Section 3.6 of the Pooling and
Servicing Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby makes the following representations and warranties
to the Purchasers and the Administrative Agent, as of the Closing Date and as of
each Purchase Date, and the Purchasers and the Administrative Agent shall be
deemed to have relied on such representations and warranties in purchasing the
Initial Series 1999-1 Certificates on the Closing Date and in making (or
committing to make) each Purchase on each subsequent Purchase Date.
SECTION 5.01 Pooling and Servicing Agreement. The Seller repeats and
reaffirms to the Purchasers and the Administrative Agent the representations and
warranties of the Seller set forth in Sections 2.3 and 2.4 of the Pooling and
Servicing Agreement and represents and warrants that such representations and
warranties are true and correct in all material respects.
SECTION 5.02 Authority, etc. (a) The Seller has been duly organized
and is validly existing and in good standing as a limited partnership under the
laws of the State of Delaware, with corporate power and authority to own its
properties and to transact the business in which it is now engaged, and the
Seller is duly qualified to do business and is in good standing (or is exempt
from such requirements) in each State of the United States where the nature of
its business requires it to be so qualified and the failure to be so qualified
and in good standing would have a material adverse effect on the interests of
the Purchasers.
(b) The issuance, sale, assignment and conveyance of the
Certificates, the performance of the Seller's obligations under this Certificate
Purchase Agreement and the consummation of the transactions herein contemplated
will not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or imposition of
any Lien (other than any Lien created by the Series Documents), charge or
encumbrance upon any of the property or assets of the Seller pursuant to the
terms of, any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which it is bound or to which any of its
property or assets is subject, nor will such action result in any violation of
the provisions of its certificate of limited partnership or its agreement of
limited partnership or any Governmental Rule applicable to the Seller.
(c) No Governmental Action which has not been obtained is required by
or with respect to the Seller in connection with the execution and delivery of
the Certificates or any
12
of the Series Documents by the Seller or the consummation by the Seller of the
transactions contemplated hereby or thereby.
(d) Each of the Series Documents has been duly authorized, executed
and delivered by the Seller, and is the valid and legally binding obligation of
the Seller, enforceable against the Seller in accordance with its terms, subject
as to enforcement to bankruptcy, insolvency, reorganization, moratorium and
other similar laws of general applicability relating to or affecting creditors'
rights and to general principles of equity.
SECTION 5.03 Certificates. The Certificates have been duly and validly
authorized, and, when executed and authenticated in accordance with the terms of
the Pooling and Servicing Agreement and the Series Supplement, and delivered to
and paid for in accordance with this Certificate Purchase Agreement, will be
duly and validly issued and outstanding and will be entitled to the benefits of
the Pooling and Servicing Agreement and the Series Supplement.
SECTION 5.04 Litigation. There is no pending or, to the Seller's
knowledge, threatened action, suit or proceeding by or against the Seller before
any Governmental Authority or any arbitrator (i) with respect to the Trust, any
Series Document, the Certificates or any of the transactions contemplated herein
or therein, or (ii) with respect to the Seller which, in the case of any such
action, suit or proceeding with respect to the Seller, if adversely determined,
would have a material adverse effect on the ability of the Seller to perform its
obligations hereunder or thereunder.
SECTION 5.05 The Receivables. The Trust has a perfected interest in
the Receivables and Collateral Security free and clear of all Liens, except for
Liens permitted under Section 2.6(a) of the Pooling and Servicing Agreement. On
each Transfer Date, each Receivable conveyed to the Trust on such date is an
Eligible Receivable or, if such Receivable is not an Eligible Receivable, such
Receivable is conveyed to the Trust in accordance with Section 2.9 of the
Pooling and Servicing Agreement. Since the Closing Date, no material adverse
change has occurred in the overall credit quality of the Receivables.
SECTION 5.06 Taxes, etc. Any taxes, fees and other charges of
Governmental Authorities applicable to the Seller, except for franchise or
income taxes, in connection with the execution, delivery and performance by the
Seller of the Series Documents or otherwise applicable to the Seller in
connection with the Trust have been paid or will be paid by the Seller at or
prior to the Closing Date or Purchase Date, as applicable, to the extent then
due.
SECTION 5.07 Trust Existence and Authorization. The Trust has been
duly created and is validly existing under the laws of the State of New York.
The Seller has authorized the Trust to issue and sell the Certificates.
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SECTION 5.08 Financial Condition of the Seller. On the date hereof and
on each Purchase Date, the Seller is not insolvent or the subject of any
voluntary or involuntary bankruptcy proceeding.
SECTION 5.09 Use of Proceeds. No proceeds of a purchase hereunder will
be used by the Seller (i) for a purpose that violates or would be inconsistent
with Regulations T, U or X promulgated by the Board of Governors of the Federal
Reserve System from time to time or (ii) to acquire any security in any
transaction in violation of Section 13 or 14 of the Securities Exchange Act of
1934, as amended.
SECTION 5.10 Securities Act. The sale of the Certificates pursuant to
the terms of this Certificate Purchase Agreement, the Pooling and Servicing
Agreement and the Series Supplement will not require registration of the
Certificates under the Act.
SECTION 5.11 Investment Company Act. Neither the Trust nor the Seller
is an "investment company" or is controlled by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
SECTION 5.12 Full Disclosure. No written information furnished or to
be furnished by the Seller or any of its Affiliates, agents or representatives
to the Purchasers or the Administrative Agent for purposes of or in connection
with this Certificate Purchase Agreement, including, without limitation, any
information relating to the Accounts and Receivables, is or shall be inaccurate
in any material respect, or contains or shall contain any material misstatement
of fact, or omits or shall omit to state a material fact or any fact necessary
to make the statements contained therein not misleading, in each case as of the
date such information was or shall be stated or certified.
ARTICLE VA
REPRESENTATIONS AND WARRANTIES OF DFS
DFS hereby makes the following representations and warranties to the
Purchasers and the Administrative Agent, as of the Closing Date and as of each
Purchase Date, and the Purchasers and the Administrative Agent shall be deemed
to have relied on such representations and warranties in purchasing the
Certificates on the Closing Date and in making (or committing to make) each
Purchase on each Purchase Date.
SECTION 0X.00 Xxxxxxx and Servicing Agreement and Receivables
Contribution and Sale Agreement. DFS repeats and reaffirms to the Purchasers
and the Administrative Agent the representations, warranties and covenants of
the Servicer set forth in Section 3.3 of the Pooling and Servicing Agreement and
the representations and warranties of DFS set forth in Sections 2.2 and 2.3 of
the Receivables Contribution and Sale Agreement and represents and warrants that
all such representations and warranties are true and correct in all material
respects.
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SECTION 5A.02 Authority, etc. (a) DFS has been duly organized and is
validly existing and in good standing as a corporation under the laws of Nevada,
with corporate power and authority to own its properties and to transact the
business in which it is now engaged, and DFS is duly qualified to do business
and is in good standing (or is exempt from such requirements) in each State of
the United States where the nature of its business requires it to be so
qualified and the failure to be so qualified and in good standing would have a
material adverse effect on the interests of the Purchasers.
(b) The sale of the Receivables pursuant to the Receivables
Contribution and Sale Agreement, the servicing activities pursuant to the
Pooling and Servicing Agreement and the performance of the obligations of DFS
under this Certificate Purchase Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any Lien (other than any Lien created by the
Series Documents), charge or encumbrance upon any of the property or assets of
DFS pursuant to the terms of, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which it or any of its
Affiliates is bound or to which any of its property or assets is subject, nor
will such action result in any violation of the provisions of its Certificate of
Incorporation or By-Laws or any Governmental Rule applicable to DFS.
(c) No Governmental Action which has not been obtained is required by
or with respect to DFS in connection with any of the Series Documents.
(d) Each of the Series Documents has been duly authorized, executed
and delivered by DFS, and is the valid and legally binding obligation of DFS,
enforceable against DFS in accordance with its terms, subject as to enforcement
to bankruptcy, insolvency, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights and to general
principles of equity.
SECTION 5A.03 Litigation. There is no pending or, to the knowledge of
DFS, threatened action, suit or proceeding by or against DFS before any
Governmental Authority or any arbitrator (i) with respect to the Trust, any
Series Document or any of the transactions contemplated herein or therein, or
(ii) with respect to DFS which, in the case of any such action, suit or
proceeding with respect to DFS, if adversely determined, would have a material
adverse effect on the ability of DFS to perform its obligations hereunder or
thereunder.
SECTION 5A.04 The Receivables. DFS has serviced and administered the
Receivables in accordance with the Financing Guidelines and has not made a
change in such Financing Guidelines since the Closing Date which could have a
material adverse effect on the Purchasers.
SECTION 5A.05 Taxes, etc. Any taxes, fees and other charges of
Governmental Authorities applicable to DFS, except for franchise or income
taxes, in connection with the execution, delivery and performance by DFS of the
Series Documents or otherwise applicable to
15
DFS in connection with the Trust have been paid or will be paid by DFS at or
prior to the Closing Date or Purchase Date, as applicable, to the extent then
due.
SECTION 5A.06 Trust Existence and Authorization. The Trust has been
duly created and is validly existing under the laws of the State of New York.
SECTION 5A.07 Financial Condition of DFS. On the date hereof and on
each Purchase Date, DFS is not insolvent or the subject of any insolvency
proceeding.
SECTION 5A.08 Full Disclosure. No written information furnished or to
be furnished by DFS or its agents or representatives to the Purchasers or the
Administrative Agent for purposes of or in connection with this Certificate
Purchase Agreement, including, without limitation, any information relating to
the Accounts and Receivables and the business of DFS, is or shall be inaccurate
in any material respect, or contains or shall contain any material misstatement
of fact, or omits or shall omit to state a material fact or any fact necessary
to make the statements contained therein not misleading, in each case as of the
date such information was or shall be stated or certified.
SECTION 5A.09 Year 2000 Plan. DFS has reviewed the areas within its
business and operations that could be adversely affected by, and has developed a
plan (the "Year 2000 Plan") to address on a timely basis, the risk that computer
applications used by it to process any data related to the Series Documents may
produce materially adverse consequences in performing date-sensitive functions
involving certain dates prior to and any date after December 31, 1999 (such risk
being referred to herein as the "Year 2000 Problem"). DFS is taking or causing
to be taken reasonable measures to address the Year 2000 Problem on a timely
basis. To the best knowledge of DFS, the Year 2000 Problem will not materially
and adversely affect the interests of the Purchasers under this Certificate
Purchase Agreement, the Series Supplement and the Pooling and Servicing
Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE ADMINISTRATIVE AGENT AND THE PURCHASERS
The Administrative Agent (on behalf of itself and on behalf of the
Conduit Purchasers) and the Committed Purchasers hereby make the following
representations and warranties to the Seller and DFS, as of the Closing Date and
as of each Purchase Date, and the Seller and DFS shall be deemed to have relied
upon such representations and warranties in entering into this Certificate
Purchase Agreement and in consummating the transactions contemplated by this
Certificate Purchase Agreement (including each issuance of a Series 1999-1
Certificate).
16
SECTION 6.01 Organization. Each Purchaser Party has been duly
organized and is validly existing and in good standing under the state or
federal laws governing its incorporation or formation, with power and authority
to own its properties and to transact the business in which it is now engaged
and each Purchaser Party is duly qualified to do business and is in good
standing (or is exempt from such requirements) in each State of the United
States where the nature of its business requires it to be so qualified and the
failure to be so qualified and in good standing would have a material adverse
effect on the interests of the Seller.
SECTION 6.02 Authority, etc. Each Purchaser Party has all requisite
power and authority to enter into and perform its obligations under this
Certificate Purchase Agreement and to consummate the transactions contemplated
hereby. The execution and delivery by each Purchaser Party of this Certificate
Purchase Agreement and the consummation by each Purchaser Party of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of each Purchaser Party. This Certificate
Purchase Agreement has been duly and validly executed and delivered by each
Purchaser Party and constitutes a legal, valid and binding obligation of each
Purchaser Party, enforceable against each Purchaser Party in accordance with its
terms, subject as to enforcement to bankruptcy, reorganization, insolvency,
moratorium and other similar laws of general applicability relating to or
affecting creditors' rights and to general principles of equity. Neither the
execution and delivery by any Purchaser Party of this Certificate Purchase
Agreement nor the consummation by such Purchaser Party of any of the
transactions contemplated hereby, nor the fulfillment by any Purchaser Party of
the terms hereof, will conflict with, or violate, result in a breach of or
constitute a default under any term or provision of the Articles of
Incorporation or By-laws of any Purchaser Party or any Governmental Rule
applicable to any Purchaser Party.
SECTION 6.03 Securities Act. The Series 1999-1 Certificates purchased
by any Purchaser Party pursuant to this Certificate Purchase Agreement will be
acquired for investment only and not with a view to any distribution, resale or
other transfer thereof, except as contemplated by the next sentence. No
Purchaser Party will sell or offer to sell or otherwise transfer its interest in
any Series 1999-1 Certificate acquired by it (or any interest therein), except
(A) in accordance with Section 9.9 of the Series 1999-1 Supplement and (B) (i)
pursuant to an effective registration statement under the Act or (ii) in a
transaction exempt from the registration requirements of the Act and applicable
state securities or "blue sky" laws, to a Person who the Purchaser reasonably
believes is a qualified institutional buyer (within the meaning thereof in Rule
144A under the Act) that is aware that the resale or other transfer is being
made in reliance upon Rule 144A. Each Purchaser Party acknowledges that it has
no right to require the Seller to register under the Act, or any other
securities law, any Series 1999-1 Certificate to be acquired by any Purchaser
Party pursuant to this Certificate Purchase Agreement.
Each Purchaser Party has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of an
investment in the Series 1999-1 Certificates and each Purchase Party is able to
bear the economic risk of such investment. Each Purchaser Party has reviewed the
Pooling and Servicing Agreement and other Series
17
Documents (including the schedules and exhibits thereto) and has had the
opportunity to perform due diligence with respect thereto and to ask questions
of and receive answers from the Seller and its representatives concerning the
Seller, the Trust, the Trust Assets, the Series Documents and the Series 1999-1
Certificates. Each of the Purchaser Parties is an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
promulgated by the Securities and Exchange Commission (the "Commission") under
the Act.
Each Purchaser Party understands that the offering and sale of the
Series 1999-1 Certificates have not been and will not be registered under the
Act, and have not and will not be registered or qualified under any applicable
"blue sky" or state securities law, and that the offering and sale of the Series
1999-1 Certificates have not been reviewed by, passed on or submitted to the
Commission or any other federal or state agency or commission, securities
exchange or other regulatory body. No Purchaser Party is a Benefit Plan. No
Purchaser Party is acquiring any Series 1999-1 Certificate (or any interest in a
Series 1999-1 Certificate) directly or indirectly for the benefit of a Benefit
Plan.
SECTION 6.04 Investment Company Act. No Purchaser Party is (a)
required to register as an "investment company" or (b) controlled by an
"investment company", in each case within the meaning of the Investment Company
Act of 1940, as amended.
ARTICLE VII
COVENANTS OF THE SELLER
SECTION 7.01 Access to Information. So long as any Series 1999-1
Certificate remains outstanding, the Seller will, at any time from time to time
during regular business hours with reasonable notice to the Seller, permit the
Administrative Agent, or its agents or representatives to:
(a) examine all books, records and documents (including computer
tapes and disks) in the possession or under the control of the Seller relating
to the Receivables, and
(b) visit the offices and property of the Seller for the purpose of
examining such materials described in clause (a) above.
Except as provided in Section 11.05, any information obtained by any
Conduit Purchaser or the Administrative Agent pursuant to this Section 7.01
shall be held in confidence by the Conduit Purchasers and the Administrative
Agent unless and to the extent such information (i) has become available to the
public other than as a result of disclosure in breach of this Certificate
Purchase Agreement, (ii) is required or requested by any Governmental Authority
or in any court proceeding or (iii) is required by any Governmental Rule. In
the case of any disclosure permitted by clause (ii) or (iii), the Conduit
Purchasers and the Administrative Agent shall use commercially reasonable
efforts to (x) provide the Seller with advance notice of any
18
such disclosure and (y) cooperate with the Seller in limiting the extent or
effect of any such disclosure.
SECTION 7.02 Security Interests; Further Assurances. The Seller will
take all action reasonably necessary to maintain the Trustee's first priority
perfected ownership or security interest in the Receivables and the Collateral
Security granted pursuant to Section 2.1 of the Pooling and Servicing Agreement.
The Seller agrees to take any and all acts and to execute any and all further
instruments necessary or reasonably requested by the Administrative Agent to
more fully effect the purposes of this Agreement.
SECTION 7.03 Covenants. The Seller will duly observe and perform each
of its covenants set forth in the other Series Documents.
SECTION 7.04 Amendments. The Seller will not make, or permit any
Person to make, any material amendment, modification or change to, or provide
any material waiver under any Series Document without the prior written consent
of the Administrative Agent; provided that neither the Administrative Agent nor
any Purchaser shall unreasonably withhold or delay its consent (if applicable)
to any amendment, modification, change or waiver to or under any Series Document
if the Rating Agency Condition shall have been satisfied with respect to such
amendment, modification, change or waiver; provided, further, that neither the
consent of the Administrative Agent nor the consent of any Purchaser shall be
required for (a) the issuance of any Series after the Closing Date or (b) any
amendment contemplated by Section 13.1(a) of the Pooling and Servicing
Agreement.
ARTICLE VIIA
COVENANTS OF DFS
SECTION 7A.01 Information from DFS. So long as the Series 1999-1
Certificates remain outstanding, DFS will furnish to the Administrative Agent:
(a) a copy of each certificate, opinion, report, statement, notice or
other communication (other than investment instructions) which the Series
Documents require to be furnished by or on behalf of DFS or the Seller to the
Trustee or the Rating Agencies under any Series Document, concurrently
therewith, and promptly after receipt thereof, a copy of each notice, demand or
other communication received by or on behalf of DFS or the Seller under any
Series Document;
(b) such other information (including financial information),
documents, records or reports respecting the Trust, the Receivables, the Seller
or the Servicer as a Conduit Purchaser or Administrative Agent may from time to
time reasonably request;
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(c) promptly following the sending or filing thereof, copies of all
registration statements which the Seller or the Servicer files with the
Securities and Exchange Commission or any national securities exchange in
connection with the Trust, the Pooling and Servicing Agreement, any Series
Supplement or any Certificate; and
(d) as soon as possible and in any event within two Business Days
after the occurrence thereof, notice of each Early Amortization Event or event
which with the giving of notice or the passage of time or both would constitute
a Early Amortization Event.
SECTION 7A.02 Access to Information. So long as any Certificate
remains outstanding, DFS will, at any time from time to time during regular
business hours with reasonable notice to DFS, permit the Administrative Agent,
or its agents or representatives to:
(a) examine all books, records and documents (including computer
tapes and disks) in the possession or under the control of DFS relating to the
Receivables, and
(b) visit the offices and property of DFS for the purpose of
examining such materials described in clause (a) above.
Except as provided in Section 11.05, any information obtained by any
Purchaser or the Administrative Agent pursuant to this Section 7A.02 shall be
held in confidence by the Purchasers and the Administrative Agent unless and to
the extent such information (i) has become available to the public other than as
a result of disclosure in breach of this Certificate Purchase Agreement, (ii) is
required or requested by any Governmental Authority or in any court proceeding
or (iii) is required by any Governmental Rule. In the case of any disclosure
permitted by clause (ii) or (iii), each Purchaser and the Administrative Agent
shall use commercially reasonable efforts to (x) provide DFS with advance notice
of any such disclosure and (y) cooperate with DFS in limiting the extent or
effect of any such disclosure.
SECTION 7A.03 Security Interests; Further Assurances. DFS will take
all action necessary to maintain the Trustee's first priority perfected
ownership or security interest in the Receivables and the Collateral Security
granted pursuant to Section 2.1 of the Pooling and Servicing Agreement and the
Seller's first priority perfected ownership or security interest in the
Receivables and the Collateral Security granted pursuant to Section 2.1 of the
Receivables Contribution and Sale Agreement. DFS agrees to take any and all acts
and to execute any and all further instruments necessary or reasonably requested
by the Administrative Agent to more fully effect the purposes of this Agreement.
SECTION 7A.04 Covenants. DFS will duly observe and perform each of its
covenants set forth in the other Series Documents.
SECTION 7A.05 Amendments. DFS will not make, or permit any Person to
make, any material amendment, modification or change to, or provide any material
waiver under any Series Document without the prior written consent of the
Administrative Agent; provided
20
that neither the Administrative Agent nor any Purchaser shall unreasonably
withhold or delay its consent (if applicable) to any amendment, modification,
change or waiver to or under any Series Document if the Rating Agency Condition
shall have been satisfied with respect to such amendment, modification, change
or waiver; provided, further, that neither the consent of the Administrative
Agent nor the consent of any Purchaser shall be required for (a) the issuance of
any Series after the Closing Date or (b) any amendment contemplated by Section
13.1(a) of the Pooling and Servicing Agreement.
ARTICLE VIII
ADDITIONAL COVENANTS
SECTION 8.01 Legal Conditions to Closing. The parties hereto will take
all reasonable action necessary to obtain (and will cooperate with one another
in obtaining) any consent, authorization, permit, license, franchise, order or
approval of, or any exemption by, any Governmental Authority or any other
Person, required to be obtained or made by it in connection with any of the
transactions contemplated by this Certificate Purchase Agreement.
SECTION 8.02 Expenses. Whether or not the Closing takes place, except
as otherwise expressly provided herein or in the Fee Letter, all costs and
expenses incurred in connection with this Certificate Purchase Agreement and the
transactions contemplated hereby shall (as between the Seller and the
Purchasers) be paid by the Seller.
SECTION 8.03 Mutual Obligations. On and after the Closing, each party
hereto will do, execute and perform all such other acts, deeds and documents as
the other party may from time to time reasonably require in order to carry out
the intent of this Certificate Purchase Agreement.
SECTION 8.04 Restrictions on Transfer. The Administrative Agent agrees
that it will comply with the restrictions on transfer of the Certificates set
forth in the Pooling and Servicing Agreement and the Series Supplement and that
it will resell the Certificates only in compliance with such restrictions;
provided, however, that in accordance with Section 9.9(a) of the Series
Supplement, so long as FNBC is the Administrative Agent, the Administrative
Agent shall not be required to sign an Investment Letter in its capacity as a
Series 1999-1 Certificateholder.
SECTION 8.05 Consents, etc. Each of the Purchasers and the
Administrative Agent agrees not to unreasonably withhold or delay its consent to
any amendment or other matter requiring consent of Certificateholders under a
provision of any Series Document to the extent that such provision specifies
that such consent is not to be unreasonably withheld or delayed.
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ARTICLE IX
INDEMNIFICATION
SECTION 9.01 Indemnification. (a) The Seller hereby agrees to
indemnify and hold harmless each Indemnified Party against any and all losses,
claims, damages, liabilities or expenses (including legal and accounting fees),
other than DFS Losses (collectively, exclusive of DFS Losses, "Seller Losses"),
for (or on account of or arising from or in connection with) any breach of any
representation, warranty or covenant of the Seller in this Certificate Purchase
Agreement or in any certificate or other written material delivered pursuant
hereto, as such Seller Losses are incurred (payable promptly upon written
request).
(b) DFS hereby agrees to indemnify and hold harmless each Indemnified
Party against any and all losses, claims, damages, liabilities or expenses
(including legal and accounting fees) (collectively, "DFS Losses"), for (or on
account of or arising from or in connection with) any breach of any
representation, warranty or covenant of DFS in this Certificate Purchase
Agreement or in any certificate or other written material delivered pursuant
hereto, as such DFS Losses are incurred (payable promptly upon written request).
(c) Notwithstanding Sections 9.01(a) and (b), in no event shall any
Indemnified Party be indemnified for Seller Losses or DFS Losses to the extent
(i) resulting from the performance of the Receivables, market fluctuations, or
other similar market or investment risks associated with ownership of the
Certificates, (ii) which would otherwise be covered in Sections 9.04 and 9.05
hereof, (iii) arising from such Person's gross negligence or willful misconduct,
(iv) arising from a breach of any representation or warranty set forth in the
Pooling and Servicing Agreement, a remedy for the breach of which is provided in
Section 2.3, 2.4, 2.8 or 3.3 of the Pooling and Servicing Agreement or (v)
arising from a breach of any representation or warranty set forth in the
Receivables Contribution and Sale Agreement, a remedy for the breach of which is
provided in Section 2.2, 2.3 or 2.7 of the Receivables Contribution and Sale
Agreement.
SECTION 9.02 Procedure. In order for an Indemnified Party to be
entitled to any indemnification provided for under this Certificate Purchase
Agreement in respect of, arising out of, or involving a claim made by any Person
against the Indemnified Party (a "Third Party Claim"), such Indemnified Party
must notify DFS or the Seller, as applicable (the "Applicable Indemnifying
Party") in writing of the Third Party Claim within a reasonable time after
receipt by such Indemnified Party of written notice of the Third Party Claim
unless the Applicable Indemnifying Party shall have previously obtained actual
knowledge thereof. Thereafter, the Indemnified Party shall deliver to the
Applicable Indemnifying Party, within a reasonable time after the Indemnified
Party's receipt thereof, copies of all notices and documents (including court
papers) received by the Indemnified Party relating to the Third Party Claim.
SECTION 9.03 Defense of Claims. If a Third Party Claim is made against
an Indemnified Party, (a) the Applicable Indemnifying Party will be entitled to
participate in the
22
defense thereof and, (b) if it so chooses, to assume the defense thereof with
counsel selected by the Applicable Indemnifying Party, provided that in
connection with such assumption (i) such counsel is not reasonably objected to
by the Indemnified Party and (ii) the Applicable Indemnifying Party first admits
in writing its liability to indemnify the Indemnified Party with respect to all
elements of such claim in full. Should the Applicable Indemnifying Party so
elect to assume the defense of a Third Party Claim, the Applicable Indemnifying
Party will not be liable to the Indemnified Party for any legal expenses
subsequently incurred by the Indemnified Party in connection with the defense
thereof. If the Applicable Indemnifying Party elects to assume the defense of a
Third Party Claim, the Indemnified Party will (i) cooperate in all reasonable
respects with the Applicable Indemnifying Party in connection with such defense
and (ii) not admit any liability with respect to, or settle, compromise or
discharge, such Third Party Claim without the Applicable Indemnifying Party's
prior written consent, as the case may be. If the Applicable Indemnifying Party
shall assume the defense of any Third Party Claim, the Indemnified Party shall
be entitled to participate in (but not control) such defense with its own
counsel at its own expense. If the Applicable Indemnifying Party does not assume
the defense of any such Third Party Claim, the Indemnified Party may defend the
same in such manner as it may deem appropriate, including settling such claim or
litigation after giving notice to the Applicable Indemnifying Party of such
terms and the Applicable Indemnifying Party will promptly reimburse the
Indemnified Party upon written request. Anything contained in this Certificate
Purchase Agreement to the contrary notwithstanding, no Applicable Indemnifying
Party shall be entitled to assume the defense of any part of a Third Party Claim
that seeks an order, injunction or other equitable relief or relief for other
than money damages against the Indemnified Party.
SECTION 9.04 Indemnity for Taxes, Reserves and Expenses. (a) If after
the date hereof, the adoption of any Governmental Rule or bank regulatory
guideline or any amendment or change in the interpretation of any existing or
future Governmental Rule or bank regulatory guideline by any Governmental
Authority charged with the administration, interpretation or application
thereof, or the compliance with any directive of any Governmental Authority (in
the case of any bank regulatory guideline, whether or not having the force of
Governmental Rule):
(i) shall subject any Indemnified Party to any tax, duty, deduction
or other charge with respect to the Receivables, the Pooling and Servicing
Agreement, the Series Supplement, the Certificates, this Certificate Purchase
Agreement or payments of amounts due thereunder, or shall change the basis of
taxation of payments to any Indemnified Party of amounts payable in respect
thereof (except for changes in the rate of general corporate, franchise, net
income or other income tax (including by means of withholding) imposed on such
Indemnified Party by the United States of America, the jurisdiction in which
such Indemnified Party's principal executive office is located or any other
jurisdiction in which the Indemnified Party would be subject to such tax even if
the transactions contemplated by this Agreement had not occurred); or
23
(ii) shall impose, modify or deem applicable any reserve, capital,
special deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System)
against assets of, deposits with or for the account of, or credit extended by,
any Indemnified Party or shall impose on any Indemnified Party or on the United
States market for certificates of deposit or the London interbank market any
other condition affecting the Receivables, the Pooling and Servicing Agreement,
the Series Supplement, the Certificates, this Certificate Purchase Agreement or
payments of amounts due thereunder (including with respect to Eurocurrency
liability reserves); or
(iii) imposes upon any Indemnified Party any other cost or expense
(including, without limitation, reasonable attorneys' fees and expenses, and
expenses of litigation or preparation therefor in contesting any of the
foregoing if such a contest is requested by the Applicable Indemnifying Party)
with respect to the Receivables, the Certificates, any Series Document or
payments of amounts due hereunder or thereunder;
and the result of any of the foregoing is to increase the cost or reduce the
payments to such Indemnified Party with respect to the Receivables, the Pooling
and Servicing Agreement, the Series Supplement, the Certificates, this
Certificate Purchase Agreement or payments of amounts due thereunder or the
obligations thereunder or the funding of any Purchases with respect thereto by
any Purchaser, by an amount deemed by such Indemnified Party to be material,
then the Seller agrees to pay such Indemnified Party, within 10 days after
demand by such Indemnified Party, such additional amount or amounts as will
compensate such Indemnified Party for such increased cost or reduced payments.
(b) If any Indemnified Party shall have determined that, after the
date hereof, the adoption of any applicable Law or bank regulatory guideline
regarding capital adequacy, or any change therein, or any change in the
interpretation thereof by any Governmental Authority, or any directive regarding
capital adequacy (in the case of any bank regulatory guideline, whether or not
having the force of law) of any such Governmental Authority, has or would have
the effect of reducing the rate of return on capital of such Indemnified Party
(or its parent) as a consequence of such Indemnified Party's obligations
hereunder or with respect hereto to a level below that which such Indemnified
Party (or its parent) could have achieved but for such adoption, change, request
or directive (taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Indemnified Party to be material, then
from time to time, the Seller agrees to pay such Indemnified Party, within 10
days after demand by any such Indemnified Party, such additional amount or
amounts as will compensate such Indemnified Party (or its parent) for such
reduction.
(c) Any Indemnified Party who makes a demand for payment of increased
costs or capital pursuant to Section 9.04(a) or (b) shall promptly deliver to
the Seller a certificate setting forth in reasonable detail the computation of
such increased costs or capital and specifying the basis therefor and such other
information as may be reasonably requested by the Seller. In the absence of
manifest error, such certificate shall be conclusive and binding for all
purposes. Each Indemnified Party shall use reasonable efforts to mitigate the
effect upon the
24
Seller of any such increased costs or capital requirements; provided, it shall
not be obligated to take any action that it determines would be disadvantageous
to it or inconsistent with its policies.
SECTION 9.05 Costs, Expenses, Taxes, Breakage Payments and Increased
Costs under Certificate Purchase Agreement and Program Facility. (a) The Seller
shall be obligated to pay on demand to each Purchaser and the Administrative
Agent (i) all reasonable costs and expenses in connection with the preparation,
execution and delivery of this Certificate Purchase Agreement, the other
documents to be delivered hereunder or in connection herewith and any requested
amendments, waivers or consents or examination or visit by the Administrative
Agent pursuant to Section 7.01 or 7A.02 hereof including, without limitation,
the reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent, with respect thereto and with respect to advising the Administrative
Agent as to its rights and remedies under this Certificate Purchase Agreement
and the other documents delivered hereunder or in connection herewith and (ii)
all costs and expenses, if any, in connection with the enforcement of this
Certificate Purchase Agreement and the other documents delivered hereunder or in
connection herewith.
(b) In addition, the Seller shall be obligated to pay on demand any
and all stamp and other taxes and fees payable in connection with the execution,
delivery, filing and recording of this Certificate Purchase Agreement, the
Certificates or the other documents and agreements to be delivered hereunder,
and agrees to hold each Purchaser and its Administrative Agent harmless from and
against any liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes and fees.
(c) The Seller shall be obligated to pay to the Purchasers promptly
on request by the Administrative Agent, the amount of any Additional Amounts to
the extent not paid when required pursuant to Section 4.6 of the Series
Supplement; provided that such payment obligation of the Seller shall be
satisfied only out of funds payable to the Seller pursuant to the Series
Documents. The other provisions of this Article IX are subject to the preceding
sentence.
(d) If a Conduit Purchaser becomes obligated to compensate any
financial institution under its commercial paper program as a result of any
events or circumstances similar to those described in Sections 9.04 or 9.05(c),
such Conduit Purchaser shall promptly deliver to the Seller a certificate
setting forth in reasonable detail the computation of such amounts. In the
absence of manifest error, such certificate shall be conclusive and binding for
all purposes. The Seller shall be obligated to pay to the Conduit Purchaser,
promptly after receipt of such certificate, such additional amounts as may be
necessary to reimburse the Conduit Purchaser for any amounts so paid by the
Conduit Purchaser. With respect to amounts to be paid pursuant to this Section
9.05(d) as a result of any events or circumstances similar to those described in
Section 9.04 or 9.05(c) hereof, the Conduit Purchaser shall request the party to
be compensated to use its reasonable efforts to mitigate the effect upon the
Seller of any such increased costs or capital requirements; provided, such party
shall not be obligated to take any action that it determines would be
disadvantageous to it or inconsistent with its policies.
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ARTICLE X
THE ADMINISTRATIVE AGENT
SECTION 10.01 Authorization and Action. Each Purchaser hereby accepts
the appointment of and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. The Administrative Agent reserves the right, in
its sole discretion, to take any actions and exercise any rights or remedies
under this Certificate Purchase Agreement and any related agreements and
documents. Except for actions which the Administrative Agent is expressly
required to take pursuant to this Certificate Purchase Agreement or the
applicable Asset Purchase Agreement, the Administrative Agent shall not be
required to take any action which exposes the Administrative Agent to personal
liability or which is contrary to applicable law unless the Administrative Agent
shall receive further assurances to its satisfaction from the Purchasers, of the
indemnification obligations under Section 10.04 hereof against any and all
liability and expense which may be incurred in taking or continuing to take such
action. The Administrative Agent agrees to give to the Purchasers prompt notice
of each notice and determination given to it by the Seller, the Servicer or the
Trustee, pursuant to the terms of this Certificate Purchase Agreement, the
Pooling and Servicing Agreement or the Series Supplement. Subject to Section
10.06 hereof, the appointment and authority of the Administrative Agent
hereunder shall terminate upon (i) the payment to (a) the Purchasers of all
amounts owing to the Purchasers hereunder and (b) the Administrative Agent of
all amounts due hereunder and (ii) the Termination Date specified in the Series
Supplement.
SECTION 10.02 Administrative Agent's Reliance, etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them as
Administrative Agent under or in connection with this Certificate Purchase
Agreement or any related agreement or document, except for its or their own
gross negligence or willful misconduct. Without limiting the foregoing, the
Administrative Agent: (i) may consult with legal counsel, independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (ii) makes no warranty or
representation to the Purchasers and shall not be responsible to the Purchasers
for any statements, warranties or representations made by the Seller or DFS (in
any capacity) in connection with any Series Document; (iii) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of any Series Document on the part of the
Seller or DFS (in any capacity) or to inspect the property (including the books
and records) of the Seller or DFS (in any capacity); (iv) shall not be
responsible to any Purchaser for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Certificate Purchase
Agreement or any other instrument or document furnished pursuant hereto; and (v)
shall incur no liability under or in respect of this Certificate Purchase
Agreement by acting upon any notice (including notice by telephone),
26
consent, certificate or other instrument or writing (which may be by telex)
believed by it in good faith to be genuine and signed or sent by the proper
party or parties.
SECTION 10.03 Administrative Agent and Affiliates. FNBC and its
respective Affiliates may generally engage in any kind of business with the
Seller, DFS or any Dealer, any of their respective Affiliates and any Person who
may do business with or own securities of the Seller, DFS or any Dealer or any
of their respective Affiliates, all as if such entities were not the
Administrative Agent and without any duty to account therefor to the Purchasers.
SECTION 10.04 Indemnification. Each Purchaser (other than the Conduit
Purchasers) severally agrees to indemnify the Administrative Agent (to the
extent not reimbursed by the Seller or DFS), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Certificate Purchase Agreement or any action
taken or omitted by the Administrative Agent under this Certificate Purchase
Agreement; provided, that (i) no Purchaser shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting or arising from the
Administrative Agent's gross negligence or willful misconduct and (ii) no
Purchaser shall be liable for any amount in respect of any compromise or
settlement or any of the foregoing unless such compromise or settlement is
approved by the Conduit Purchaser and the majority of the Purchasers (other than
the Conduit Purchaser) (based on purchase commitments under the applicable Asset
Purchase Agreement). Without limitation of the generality of the foregoing, each
Purchaser (other than a Conduit Purchaser) agrees to reimburse the
Administrative Agent, promptly upon demand, for any reasonable out-of-pocket
expenses (including reasonable counsel fees) incurred by the Administrative
Agent in connection with the administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Certificate
Purchase Agreement, provided, that no Purchaser shall be responsible for the
costs and expenses of the Administrative Agent in defending itself against any
claim alleging the gross negligence or willful misconduct of the Administrative
Agent to the extent such gross negligence or willful misconduct is determined by
a court of competent jurisdiction in a final and non-appealable decision.
SECTION 10.05 Purchase Decision. Each Purchaser acknowledges that it
has, independently and without reliance upon the Administrative Agent, and based
on such documents and information as it has deemed appropriate, made its own
evaluation and decision to enter into this Certificate Purchase Agreement and to
purchase an interest in the Certificates. Each Purchaser also acknowledges that
it will, independently and without reliance upon the Administrative Agent or any
of its Affiliates, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own decisions in taking or not
taking action under this Certificate Purchase Agreement or any related
agreement, instrument or other document.
27
SECTION 10.06 Successor Administrative Agent. The Administrative Agent
may resign at any time by giving sixty days' written notice thereof to the
Purchasers, the Seller, the Servicer and the Trustee. Upon any such resignation,
the Purchasers shall have the right to appoint a successor Administrative Agent
approved by the Seller (which approval will not be unreasonably withheld or
delayed). If no successor Administrative Agent shall have been so appointed and
shall have accepted such appointment, within sixty days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Purchasers, appoint a successor
Administrative Agent. If such successor Administrative Agent is not an Affiliate
of the resigning Administrative Agent, such successor Administrative Agent shall
be subject to the Seller's prior written approval (which approval will not be
unreasonably withheld or delayed). Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations under this Certificate Purchase Agreement. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article X shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was the Administrative Agent under this
Certificate Purchase Agreement.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Amendments. No amendment or waiver of any provision of
this Certificate Purchase Agreement shall in any event be effective unless the
same shall be in writing and signed by all of the parties hereto, and then such
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. The Servicer shall give the Rating
Agencies and the Trustee (i) prior notice of any such amendment or waiver and
(ii) after the execution of any such amendment or waiver, copies thereof.
SECTION 11.02 Notices. All notices and other communications provided
for hereunder shall, unless otherwise stated herein, be in writing (including
telecopies, telegraphic, telex or cable communication) and mailed, telecopied,
telegraphed, cabled or delivered, as to each party hereto, at its address set
forth in Schedule I hereto or at such other address as shall be designated by
such party in a written notice to the other parties hereto. All such notices and
communications shall, when mailed, telecopied, telegraphed or cabled, be
effective when deposited in the mails, confirmed by telephone, delivered to the
telegraph company or delivered to the cable company, respectively. All notices
to the Trustee or the Rating Agencies shall be made in accordance with Section
13.6 of the Pooling and Servicing Agreement.
SECTION 11.03 No Waiver; Remedies. No failure on the part of any party
hereto to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver
28
thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 11.04 Binding Effect; Assignability. (a) This Certificate
Purchase Agreement shall be binding upon and inure to the benefit of the Seller,
DFS, the Administrative Agent and the Purchasers party to this Agreement and
their respective successors and assigns (including any subsequent holders of the
Certificates); provided, however, that the Seller shall not have the right to
assign its rights hereunder or any interest herein (by operation of law or
otherwise) without the prior written consent of the Administrative Agent. The
Administrative Agent agrees that it shall not transfer a Certificate without the
Seller's prior written consent, unless such transfer (x) is to a Committed
Purchaser or Liquidity Purchaser, (y) is to a RIC or (z) occurs after the
commencement of the Early Amortization Period.
(b) Each of the Purchasers and the Administrative Agent shall comply
with all of the provisions of Section 9.9 of the Supplement applicable to Series
1999-1 Certificateholders regardless of the fact that the Administrative Agent
may be the Series 1999-1 Certificateholder.
(c) Without the consent of the Seller, but subject to Section
11.04(b), each Committed Purchaser party to this Certificate Purchase Agreement
may assign all or a portion of its rights and obligations under this Certificate
Purchase Agreement to any financial or other institution acceptable to the
Administrative Agent. The parties to each such assignment shall execute and
deliver an Assignment and Acceptance to the Administrative Agent, and the
Administrative Agent shall promptly notify the Seller of such assignment. From
and after the effective date of such Assignment and Acceptance, the assigning
Committed Purchaser shall be relieved of its obligations hereunder to the extent
so assigned.
(d) Any Purchaser may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more Persons (each, a
"Participant") participating interests in all or a portion of its rights and
obligations under this Certificate Purchase Agreement. Notwithstanding any such
sale by a Purchaser of participating interests to a Participant, such
Purchaser's rights and obligations under this Certificate Purchase Agreement
shall remain unchanged, such Purchaser shall remain solely responsible for the
performance thereof, and the Seller, the Administrative Agent and the other
parties hereto shall continue to deal solely and directly with such Purchaser in
connection with such Purchaser's rights and obligations under this Certificate
Purchase Agreement. The Seller also agrees that each Participant shall be
entitled to the benefits of Article IX hereof; provided, however, that all
amounts payable by the Seller to any such Participant shall be limited to the
amounts which would have been payable to the Purchaser selling such
participating interest had such interest not been sold.
(e) This Certificate Purchase Agreement shall create and constitute
the continuing obligation of the parties hereto in accordance with its terms,
and shall remain in full
29
force and effect until such time as all amounts payable with respect to the
Certificates shall have been paid in full.
SECTION 11.05 Provision of Documents and Information. The Seller
acknowledges and agrees that the Conduit Purchasers, the Committed Purchaser and
Administrative Agent are permitted to provide to the Liquidity Purchasers,
permitted assignees and participants, the placement agents for their respective
commercial paper notes, the rating agencies with respect to such notes and other
liquidity and credit providers under their respective commercial paper programs,
opinions, certificates, documents and other information relating to the Seller,
DFS and the Receivables delivered to the Conduit Purchasers, the Committed
Purchaser or the Administrative Agent pursuant to this Certificate Purchase
Agreement.
SECTION 11.06 GOVERNING LAW. THIS CERTIFICATE PURCHASE AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS.
SECTION 11.07 No Proceedings. (a) Each party hereto agrees that so
long as any senior indebtedness of a Conduit Purchaser shall be outstanding or
there shall not have elapsed one year plus one day since the last day on which
any Commercial Paper or other senior indebtedness of a Conduit Purchaser shall
have been outstanding, it shall not file, or join in the filing of, a petition
against such Conduit Purchaser under the Federal Bankruptcy Code, or commence or
join in the commencement of any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar proceeding against such Conduit
Purchaser.
(b) Each party hereto agrees that it shall not at any time file, or
join in the filing of, a petition against the Seller or the general partner of
the Seller or the Trust under the Federal Bankruptcy Code, or commence or join
in the commencement of any bankruptcy, reorganization, arrangement, insolvency,
liquidation or other similar proceeding against the Seller or the general
partner of the Seller or the Trust.
SECTION 11.08 Execution in Counterparts. This Certificate Purchase
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same agreement.
SECTION 11.09 No Recourse. The obligations of any Purchaser under this
Certificate Purchase Agreement, or any other agreement, instrument, document or
certificate executed and delivered by or issued by such Purchaser or any officer
thereof are solely the corporate or partnership obligations of such Purchaser.
No recourse shall be had for payment of any fee or other obligation or claim
arising out of or relating to this Certificate Purchase Agreement or any other
agreement, instrument, document or certificate executed and delivered or issued
by such Purchaser or any officer thereof in connection therewith, against any
stockholder, limited partner, employee, officer, director or incorporator of
such Purchaser.
30
SECTION 11.10 Limited Recourse. The obligations of the Seller under
this Certificate Purchase Agreement and the other Series Documents are solely
the limited partnership obligations of the Seller. No recourse shall be had for
the payment of any fee or other obligation or claim arising out of or relating
to this Certificate Purchase Agreement or the other Series Documents or any
other agreement, instrument, document or certificate executed and delivered or
issued by the Seller or by any partner of the Seller or any officer thereof in
connection herewith or therewith, against any stockholder, employee, officer or
director of the Seller or of any partner of the Seller.
Without limiting the generality of the foregoing, and notwithstanding
any other provision of this Certificate Purchase Agreement, (i) the Seller shall
have no liability for any obligation of DFS or for any claim against DFS, and
(ii) DFS shall have no liability for any obligation of the Seller or for any
claim against the Seller.
SECTION 11.11 Survival. All representations, warranties, covenants,
and indemnifications contained in this Certificate Purchase Agreement,
including, without limitation, Article IX and Sections 11.07, 11.09 and 11.10,
and in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the sale, transfer or repayment of the
Certificates.
SECTION 11.12 Tax Characterization. Each party to this Certificate
Purchase Agreement (a) acknowledges and agrees that it is the intent of the
parties to this Certificate Purchase Agreement that, for federal, state and
local income, single business and franchise tax purposes, the Certificates will
be treated as evidence of indebtedness secured by the Receivables and proceeds
thereof and the Trust will not be characterized as an association (or publicly
traded partnership) taxable as a corporation, (b) agrees to treat the
Certificates for federal, state and local income, single business and franchise
tax purposes as indebtedness and (c) agrees that the provisions of this
Certificate Purchase Agreement and all related Series Documents shall be
construed to further these intentions of the parties.
SECTION 11.13 Severability; Certificate Rate Limitation. (a) If any
one or more of the covenants, agreements, provisions or terms of this
Certificate Purchase Agreement shall for any reason whatsoever be held invalid,
then such covenants, agreements, provisions or terms shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this
Certificate Purchase Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Certificate Purchase Agreement or
of the Series 1999-1 Certificates.
(b) Notwithstanding anything in this Certificate Purchase Agreement,
the other Series Documents or any Series 1999-1 Certificate to the contrary, if
at any time any Certificate Rate, together with all fees, charges and other
amounts which are treated as interest on the Series 1999-1 Certificates, under
applicable law (collectively the "Charges"), shall exceed the maximum lawful
rate (the "Maximum Rate") which may be contracted for, charged, taken, received
or reserved by the Series 1999-1 Certificateholders in accordance with the terms
of this Certificate Purchase Agreement, the other Series Documents or any Series
1999-1 Certificate,
31
then such Certificate Rate, together with all Charges payable in respect of the
Series 1999-1 Certificates, shall be limited to the Maximum Rate and, to the
extent lawful, such Certificate Rate and Charges that would have been payable in
respect of the Series 1999-1 Certificates, but were not payable as a result of
the operation of this Section, shall be cumulated and the Certificate Rate and
Charges payable to the Series 1999-1 Certificateholders in respect of other
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount shall have been received by the Series 1999-1
Certificateholders.
SECTION 11.14 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 11.15 Submission to Jurisdiction. Each of the parties hereto
hereby irrevocably and unconditionally: (a) submits for itself and its property
in any legal action or proceeding relating to this Certificate Purchase
Agreement, any other Series Document, any Series 1999-1 Certificate or the other
documents executed and delivered in connection herewith or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to such Person at its
address determined in accordance with Section 11.02; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to xxx in any other jurisdiction.
[SIGNATURES FOLLOW]
32
IN WITNESS WHEREOF, the parties have caused this Certificate Purchase
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P., as Seller
By DEUTSCHE FLOORPLAN RECEIVABLES, INC., its
general partner
By:______________________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
By:______________________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
DEUTSCHE FINANCIAL SERVICES CORPORATION, as
Servicer
By:______________________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
By:______________________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
S-1
FALCON ASSET SECURITIZATION CORPORATION, as a
Conduit Purchaser
By:_____________________________________________
Name:
Title: Authorized Signer
S-2
PREFERRED RECEIVABLES FUNDING CORPORATION, as a
Conduit Purchaser
By:_____________________________________________
Name:
Title: Authorized Signer
S-3
INTERNATIONAL SECURITIZATION CORPORATION, as a
Conduit Purchaser
By:____________________________________________
Name:
Title: Authorized Signer
S-4
THE FIRST NATIONAL BANK OF CHICAGO, as
Administrative Agent
By:_____________________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO, as a Committed
Purchaser
By:_____________________________________________
Name:
Title:
Purchaser Percentage: 100%
S-5
EXHIBIT A
Purchase Request
[Letterhead of Deutsche Floorplan Receivables, L.P.]
[Date]
1. Proposed Purchase Date: ___________
2. Aggregate Purchase Price(s) (lesser of minimum amount
of $5,000,000 or remaining Maximum Funding Amount)......... $__________
3. Remaining Maximum Funding Amount (after giving effect to
the requested Purchase(s))................................. $__________
4. [Specify type(s) and amount(s) of Tranche(s) and Tranche
Period(s)]................................................. $__________
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
By: Deutsche Floorplan Receivables, Inc., its
general partner
By_____________________________________________
Name___________________________________________
Title__________________________________________
By_____________________________________________
Name___________________________________________
Title__________________________________________
A-1
SCHEDULE I
Addresses for Notice
In the case of the Seller:
-------------------------
Deutsche Floorplan Receivables, L.P.
000 Xxxxxxxxx Xxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: President
In the case of the Servicer:
---------------------------
Deutsche Financial Services Corporation
000 Xxxxxxxxx Xxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Senior Vice President or Chief Legal Officer
In the case of the Administrative Agent and the Committed Purchaser:
-------------------------------------------------------------------
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx
In the case of the Conduit Purchasers:
-------------------------------------
Falcon Asset Securitization Corporation
c/o The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx
Preferred Receivables Funding Corporation
c/o The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx
International Securitization Corporation
c/o The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx
