Exhibit 99.1
RECEIVABLES SALE AGREEMENT
among
GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION,
as a Seller,
TRANSAMERICA COMMERCIAL FINANCE CORPORATION,
as a Seller,
BRUNSWICK ACCEPTANCE COMPANY, LLC,
as a Seller,
and
CDF FUNDING, INC.,
as Buyer
Dated as of August 12, 2004
Receivables Sale Agreement
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS.................................................... 1
Section 1.1 Definitions.............................................. 1
Section 1.2 Other Interpretive Matters............................... 11
ARTICLE II SALES......................................................... 12
Section 2.1 Sales.................................................... 12
Section 2.2 Acceptance by Buyer...................................... 13
Section 2.3 Characterization of Transfers............................ 13
Section 2.4 Purchase Price........................................... 14
Section 2.5 Adjustments.............................................. 14
Section 2.6 Addition of Accounts..................................... 14
Section 2.7 Removal of Accounts...................................... 15
Section 2.8 Additional Sellers....................................... 16
Section 2.9 Additional Originators................................... 16
ARTICLE III CONDITIONS PRECEDENT......................................... 16
Section 3.1 Conditions to Initial Transfer........................... 16
Section 3.2 Conditions to all Transfers.............................. 17
ARTICLE IV OTHER MATTERS RELATING TO SELLERS............................. 17
Section 4.1 Merger or Consolidation of, or Assumption of the
Obligations of, Sellers, etc.......................... 17
ARTICLE V BANKRUPTCY EVENTS.............................................. 18
Section 5.1 Rights upon the Occurrence of a Bankruptcy Event......... 18
ARTICLE VI REPRESENTATIONS, WARRANTIES AND COVENANTS..................... 18
Section 6.1 Representations and Warranties of Seller................. 18
Section 6.2 Affirmative Covenants of Seller.......................... 22
Section 6.3 Negative Covenants of Seller............................. 23
ARTICLE VII MISCELLANEOUS................................................ 23
Section 7.1 Notices.................................................. 23
Section 7.2 No Waiver; Remedies...................................... 25
Section 7.3 Successors and Assigns................................... 25
Section 7.4 Termination.............................................. 26
Section 7.5 Survival................................................. 26
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TABLE OF CONTENTS
(continued)
PAGE
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Section 7.6 Complete Agreement; Modification of Agreement............ 26
Section 7.7 GOVERNING LAW; CONSENT TO JURISDICTION;
WAIVER OF JURY TRIAL.................................. 26
Section 7.8 Counterparts............................................. 28
Section 7.9 Severability............................................. 28
Section 7.10 Section Titles........................................... 28
Section 7.11 No Setoff................................................ 28
Section 7.12 Further Assurances....................................... 28
Section 7.13 Accounting Changes....................................... 28
Section 7.14 No Indirect or Consequential Damages..................... 29
Section 7.15 TCFC and BAC............................................. 29
SCHEDULES
SCHEDULE 1 List of Accounts
SCHEDULE 6.1(a)(ii) Sellers' UCC Information
SCHEDULE 6.1(a)(viii) Perfection Representations and Warranties
EXHIBITS
EXHIBIT A Form of Assignment
EXHIBIT B Form of Reassignment
EXHIBIT C Form of Opinion of Counsel with Respect to Additional Accounts
-ii-
RECEIVABLES SALE AGREEMENT, dated as of August 12, 2004 (this "Agreement"),
among GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION, a Nevada corporation, as a
Seller, TRANSAMERICA COMMERCIAL FINANCE CORPORATION, a Delaware corporation, as
a Seller, BRUNSWICK ACCEPTANCE COMPANY, LLC, a Delaware limited liability
company, as a Seller, and CDF FUNDING, INC., a Delaware corporation, as Buyer
("Buyer").
In consideration of the premises and the mutual covenants hereinafter
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
"Account" means each Initial Account and each Additional Account. The term
Account includes an Additional Account only from and after its Addition Date and
includes any Removed Account only prior to its Removal Date.
"Account Schedule" means a computer file or microfiche list or other list
containing a true and complete list of Accounts, identified by account number
(or by an alpha-numeric identifier that uniquely and objectively identifies the
applicable account number pursuant to a protocol that has been provided to
Buyer) and setting forth the receivables balance for each as of (i) the
applicable Addition Cut-Off Date, in the case of an Account Schedule relating to
Additional Accounts, (ii) the Removal Notice Date, in the case of an Account
Schedule relating to Removed Accounts or (iii) the date specified therein, in
the case of any other Account Schedule. Notwithstanding the foregoing, the
initial Account Schedule does not set forth receivables balances, and any
failure to set forth receivables balances in such a file or list shall not
impair the file's or list's effectiveness as an Account Schedule.
"Accounting Changes" means, with respect to any Person, (a) changes in
accounting principles required by the promulgation of any rule, regulation,
pronouncement or opinion of the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants (or any successor thereto or
any agency with similar functions); (b) changes in accounting principles
concurred by such Person's certified public accountants; (c) purchase accounting
adjustments under A.P.B. 16 or 17 and EITF 88-16, and the application of the
accounting principles set forth in FASB 109, including the establishment of
reserves pursuant thereto and any subsequent reversal (in whole or in part) of
such reserves; and (d) the reversal of any reserves established as a result of
purchase accounting adjustments.
"Accounts Receivable" means, with respect to any Dealer, all amounts shown
on such Dealer's records as amounts payable by a customer (which customer may be
a Dealer) in respect of goods or services sold by such Dealer to such customer.
"Accounts Receivable Business" means the extensions of credit made by an
Originator to Dealers in order to finance the Accounts Receivable of such
Dealers.
"Accounts Receivable Financing Agreement" means an accounts receivable
financing agreement or accounts receivable purchase agreement entered into by an
Originator with a Dealer in connection with the Accounts Receivable Business.
"Addition Cut-Off Date" means, as to any Additional Account, the date
specified as such in the related Assignment.
"Addition Date" means, as to any Additional Account, the date specified as
such in the related Assignment.
"Additional Accounts" is defined in Section 2.6(a).
"Affiliate" means, with respect to any Person, (a) each Person that,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, five percent (5%) or more of the securities having
ordinary voting power in the election of directors of such Person, (b) each
Person that controls, is controlled by or is under common control with such
Person, or (c) each of such Person's officers, directors, joint venturers and
partners. For the purposes of this definition, "control" of a Person means the
possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"Aggregate Reassignment Amount" means, for any reassignment of the
Transferred Receivables pursuant to Section 6.1(e), the Purchase Prices paid for
such Transferred Receivables, less all Collections in respect of such
Receivables received by Buyer.
"Agreement" is defined in the preamble.
"Agreement Termination Date" is defined in Section 7.4.
"Asset Based Lending Business" means the extensions of credit made by an
Originator to Dealers in order to provide loans based on the value of certain
assets of such Dealers.
"Asset Based Lending Financing Agreement" means an asset based lending
financing agreement entered into by an Originator and a Dealer in connection
with the Asset Based Lending Business.
"Assignment" is defined in Section 2.6(c).
"Authorized Officer" means (a) with respect to any corporation or statutory
trust, the Chairman or Vice-Chairman of the Board, the President, any Vice
President, the Secretary, the Treasurer, any Assistant Secretary, any Assistant
Treasurer and each other officer or employee of such corporation or trustee of
such trust specifically authorized in resolutions of the Board of Directors of
such corporation or trustee of such trust to sign agreements, instruments or
other documents on behalf of such corporation or statutory trust in connection
with the transactions contemplated by the Related Documents, and (b) with
respect to a limited liability company, an officer or manager of such limited
liability company.
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"Bankruptcy Event" means, as to any Person, any of the following events:
(a) a case or proceeding shall have been commenced against such Person seeking a
decree or order in respect of such Person (i) under any Debtor Relief Law, (ii)
appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator
(or similar official) for any such Person or for any substantial part of such
Person's assets, or (iii) ordering the winding-up or liquidation of the affairs
of any such Person; or (b) such Person shall (i) file a petition seeking relief
under any Debtor Relief Law, (ii) consent or fail to object in a timely and
appropriate manner to the institution of proceedings thereunder or to the filing
of any such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar
official) for such Person or for any substantial part of such Person's assets,
(iii) make an assignment for the benefit of creditors, or (iv) take any
corporate or statutory trust action in furtherance of any of the foregoing.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which banks are required or permitted to be closed in the State of New York or
the state of Master Servicer's principal place of business (which, as of the
Closing Date, is the State of Connecticut).
"Buyer" is defined in the preamble.
"CDF" means GE Commercial Distribution Finance Corporation, a Delaware
corporation.
"Class" is defined in the Indenture.
"Closing Date" means August 12, 2004.
"Collateral Security" means, with respect to any Receivable, (i) the
security interest, if any, granted by or on behalf of the related Dealer with
respect thereto, including a security interest in the related Products, Accounts
Receivable or assets, (ii) all other security interests or liens and property
subject thereto from time to time purporting to secure payment of such
Receivable, whether pursuant to the agreement giving rise to such Receivable or
otherwise, together with all financing statements filed against a Dealer
describing any collateral securing such Receivable, (iii) all guarantees,
insurance and other agreements (including Floorplan Agreements and subordination
agreements with other lenders) or arrangements of whatever character from time
to time supporting or securing payment of such Receivable whether pursuant to
the agreement giving rise to such Receivable or otherwise, and (iv) all Records
in respect of such Receivable.
"Collections" means, without duplication, all payments by or on behalf of
Dealers received in respect of the Receivables (including proceeds from the
realization upon any Collateral Security) in the form of cash, checks, wire
transfers or any other form of payment. Collections that constitute Recoveries
shall be considered to be Collections of Non-Principal Receivables.
"Credit and Collection Policies" means, with respect to a Seller, such
Seller's policies and procedures relating to the Receivables, including the
policies and procedures for determining the creditworthiness of Dealers and the
extension of credit to Dealers, and relating to the
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maintenance of Accounts and collection of Receivables, as such policies and
procedures may be amended from time to time.
"Date of Processing" means, as to any transaction, the Business Day on
which the transaction is first recorded on Master Servicer's computer file of
accounts (without regard to the effective date of such recordation).
"Dealer" means a Person engaged generally in the business of purchasing
consumer or commercial goods from a manufacturer or distributor thereof and
holding such goods for sale or lease in the ordinary course of business or a
Person engaged generally in the business of manufacturing or distributing
consumer or commercial goods for sale to Dealers in the ordinary course of
business.
"Debtor Relief Laws" means Title 11 of the United States Code and all other
applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, suspension of payments, readjustment
of debt, marshalling of assets or similar debtor relief laws of the United
States, any state or any foreign country from time to time in effect, affecting
the rights of creditors generally.
"Defaulted Receivables" on any Determination Date means all Receivables
(other than Ineligible Receivables and any Designated Ineligible Receivables) in
an Account which are charged off as uncollectible on or prior to such
Determination Date in respect of the immediately preceding Monthly Period in
accordance with the Sellers' customary and usual servicing procedures for
servicing Dealer receivables comparable to the Receivables which have not been
sold to third parties.
"Delayed Funding Receivable" means a Receivable in respect of which the
related Floorplan Agreement permits an Originator to delay payment of the
purchase price of the related Product to the Manufacturer for a specified period
after the invoice date for such Product; provided that such Receivable shall be
a Delayed Funding Receivable only until such Originator funds the payment of
such purchase price.
"Designated Ineligible Receivable" means, without duplication, (i) any
Receivable that arises in an Eligible Account but was not an Eligible Receivable
at the time of its transfer to Buyer; and (ii) any Receivable that, at the time
of its transfer to Buyer has been SAU or NSF for more than ninety (90) days.
"Designated Participation Interest" is defined in Section 2.6(b).
"Determination Date" means the second Business Day preceding each Payment
Date.
"DFS Financing Trust" is defined in the Indenture.
"Eligible Account" means a revolving credit arrangement payable in U.S.
dollars between an Originator and a Dealer, which arrangement, as of the date of
determination with respect thereto: (a) is in favor of a Dealer (i) which is
doing business in the United States, (ii) which has not been identified by a
Seller as being the subject of any voluntary or involuntary bankruptcy
proceeding or liquidation proceeding, and (iii) in which neither GE Capital nor
any
4
Affiliate thereof has an equity investment; (b) is serviced by a Seller or an
Affiliate thereof; and (c) arises under a Financing Agreement that is in full
force and effect.
"Eligible Receivable" means a Receivable:
(a) that has arisen under an Eligible Account;
(b) that was created in compliance with the Credit and Collection
Policies and all Requirements of Law applicable to the related Originator,
other than those Requirements of Law the failure to comply with would not
have a material adverse effect on Buyer or any of its creditors or assigns,
and pursuant to a Financing Agreement that complies with all Requirements
of Law applicable to the related Originator, other than those Requirements
of Law the failure to comply with would not have a material adverse effect
on Buyer or any of its creditors or assigns;
(c) with respect to which all consents, licenses, approvals or
authorizations of, or registrations with, any Governmental Authority
required to be obtained or made by the related Originator in connection
with the creation of such Receivable or the execution, delivery and
performance by the related Originator of the related Financing Agreement,
have been duly obtained or made and are in full force and effect as of the
date of creation of such Receivable, but failure to comply with this clause
(c) shall not cause a Receivable not to be an Eligible Receivable if, and
to the extent that, the failure to so obtain or make any such consent,
license, approval, authorization or registration would not have a material
adverse effect on Buyer or its assigns;
(d) as to which, at the time of its transfer to Buyer, the applicable
Seller will have good and marketable title free and clear of all Liens
(other than Permitted Encumbrances);
(e) that is the subject of a valid transfer and assignment from the
applicable Seller to Buyer of all of such Seller's right, title and
interest therein;
(f) that at and after the time of transfer to Buyer is the legal,
valid and binding payment obligation of the Dealer thereof, legally
enforceable against such Dealer in accordance with its terms, except as
enforceability may be limited by applicable Debtor Relief Laws, and by
general principles of equity (whether considered in a suit at law or in
equity);
(g) that constitutes an "account", "chattel paper" or "general
intangible" within the meaning of UCC Section 9-102;
(h) as to which, at the time of its transfer to Buyer, the applicable
Seller has not taken any action which, or failed to take any action the
omission of which, would, at the time of transfer to Buyer, impair Buyer's
rights therein;
(i) that, at the time of its transfer to Buyer, has not been waived or
modified except as permitted by this Agreement;
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(j) that, at the time of its transfer to Buyer, is not subject to any
right of rescission, setoff, counterclaim or any other defense of the
Dealer (including the defense of usury), other than defenses arising out of
Debtor Relief Laws and except as the enforceability of such Receivable may
be limited by general principles of equity (whether considered in a suit at
law or equity) or as to which the applicable Seller makes an adjustment
pursuant to Section 2.5;
(k) as to which, at the time of its transfer to Buyer, the applicable
Seller has satisfied all obligations to be fulfilled by such Seller under
the related Financing Agreement as of the time it is transferred to Buyer;
and
(l) which at the time of transfer to Buyer is secured, to the extent
required by the related Financing Agreement, by, inter alia, a first
priority perfected security interest (whether by prior filing, purchase
money security interest, subordination agreement from prior filers or
otherwise) in the related Product or other assets financed by the related
advance (except that such security interest need not be a first priority
perfected security interest if (x) in the case of a Receivable arising in
an Account for which the maximum credit line is five hundred thousand
dollars ($500,000) or less (provided, that the aggregate amount of
Receivables that are permitted to be Eligible Receivables pursuant to this
clause (x) shall not exceed two percent (2%) of the Combined Outstanding
Principal Balances (as such term is defined in the Indenture) or such
higher percentage as to which the Rating Agency Condition may have been
satisfied), and (y) in the case of any other Receivable or Receivables, the
Rating Agencies rating the outstanding Series have confirmed that the
absence of a first priority perfected security interest in such Receivable
or Receivables will not result in a reduction or withdrawal of the ratings
of the outstanding Series or Classes of Series then rated by those Rating
Agencies.
Nothing in this definition shall prevent any Delayed Funding Receivable from
being an Eligible Receivable.
"Financing Agreement" means a Wholesale Financing Agreement, Accounts
Receivable Financing Agreement or Asset Based Lending Financing Agreement.
"Floorplan Agreement" means an agreement entered into by an Originator and
a Manufacturer establishing certain terms and conditions for the financing of
such Manufacturer's Dealers by such Originator, which may include such
Manufacturer's agreement, among other matters, to repurchase from, or remarket
for, such Originator Products sold by such Manufacturer to any of its Dealers
and financed by such Originator under a Wholesale Financing Agreement if such
Originator acquires possession of such Products because of a default by such
Dealer under such Wholesale Financing Agreement, whether by repossession,
voluntary surrender or other circumstances.
"Floorplan Business" means the extensions of credit made by an Originator
to Dealers in order to finance Products purchased by Dealers from Manufacturers
for sale or lease by such Dealers.
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"GAAP" means generally accepted accounting principles in the United States
of America in effect from time to time.
"GE Capital" means General Electric Capital Corporation, a Delaware
corporation.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, and any agency, department or other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Indenture" means the Master Indenture dated as of August 12, 2004 between
the Issuer and Wilmington Trust Company, as indenture trustee.
"Indenture Supplement" means a supplement to the Indenture executed and
delivered pursuant to the Indenture.
"Ineligible Account" means an Account that at the time of determination is
not an Eligible Account.
"Ineligible Receivable" is defined in Section 6.1(c).
"Initial Account" means each individual revolving credit arrangement
established by an Originator with a Dealer which was identified in the Account
Schedule delivered in connection with the execution and delivery of this
Agreement.
"Insurance Proceeds" with respect to an Account means any amounts received
pursuant to any policy of insurance which are required to be paid to an
Originator pursuant to a Wholesale Financing Agreement, Accounts Receivable
Financing Agreement or Asset Based Lending Financing Agreement.
"Issuer" means GE Dealer Floorplan Master Note Trust, a Delaware statutory
trust.
"Lien" means any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any lease
or title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of, or agreement to
give, any financing statement perfecting a security interest under the UCC or
comparable law of any jurisdiction).
"Litigation" means, with respect to any Person, any action, claim, lawsuit,
demand, investigation or proceeding pending or threatened against such Person
before any court, board, commission, agency or instrumentality of any federal,
state, local or foreign government or of any agency or subdivision thereof or
before any arbitrator or panel of arbitrators.
"Manufacturer" means a Person engaged generally in the business of
manufacturing or distributing Products for sale or lease to Dealers in the
ordinary course of business.
7
"Master Servicer" means GE Capital, in its capacity as master servicer
under the Servicing Agreement, or any other Person designated as a successor
master servicer pursuant to the Servicing Agreement.
"Material Adverse Effect" means, with respect to a Seller, a material
adverse effect on (a) the ability of such Seller to perform any of its
obligations under the Related Documents in accordance with the terms thereof,
(b) the validity or enforceability of any Related Document or the rights and
remedies of Buyer under any Related Document with respect to such Seller, or (c)
the Transferred Receivables (including the collectibility of the Transferred
Receivables and the security interests and other rights securing and supporting
the payment of the Transferred Receivables), the Financing Agreements therefor
or the ownership interests or Liens of any Seller or Buyer thereon or the
priority of such interests or Liens.
"Monthly Period" means a calendar month.
"Non-Principal Collections" means the sum of (a) Collections of interest
and all other non-principal charges (including insurance service fees and
handling fees) on the Receivables, and (b) all Recoveries.
"Non-Principal Receivables" with respect to any Account means all amounts
billed to the related Dealer in respect of interest and all other non-principal
charges.
"NSF" means, with respect to a Receivable, that a check in payment of such
Receivable has been returned because of insufficient funds and has not
thereafter been paid.
"Officer's Certificate" means, with respect to any Person, a certificate
signed by an Authorized Officer of such Person.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for, or an employee of, the Person providing the opinion.
"Originator" means a Seller or any other originator so designated pursuant
to Section 2.9.
"Originator Guaranty" means the Originator Performance Guaranty dated as of
August 12, 2004 made by GE Capital.
"Outstanding Balance" means, with respect to any Principal Receivable, the
outstanding amount of such Principal Receivable; provided, that the Outstanding
Balance of a Defaulted Receivable shall equal zero.
"Participation Agreement" means an agreement between an Originator and a
lender pursuant to which such Originator conveys to such lender an undivided
interest in certain receivables that is pari passu in all respects (other than
nonsubordinated interest strips and fees) with the undivided interest retained
by such Originator.
"Participation Interest" means the undivided interest, created pursuant to
a Participation Agreement, in a receivable in which a Receivable represents the
remaining undivided interest.
8
"Payment Date" means, except as otherwise specified in any Indenture
Supplement for the Series relating thereto, the twentieth (20th) day of each
calendar month, or if the twentieth (20th) day is not a Business Day, the next
Business Day.
"Permitted Encumbrances" means the following: (a) Liens for taxes or
assessments or other governmental charges not yet due and payable; (b) inchoate
and unperfected workers', mechanics', suppliers' or similar Liens arising in the
ordinary course of business; (c) presently existing or hereinafter created Liens
in favor of, or created by, Buyer; (d) any Lien created or permitted by any
Related Document; (e) any Lien created by any Participation Agreement; and (f)
any security interests in assets that are subordinate to the security interests
securing the related Receivables.
"Person" means any individual, sole proprietorship, partnership, joint
venture, unincorporated organization, trust (including a business trust),
association, corporation, limited liability company, institution, public benefit
corporation, joint stock company, Governmental Authority or any other entity of
whatever nature.
"Principal Collections" means Collections other than Non-Principal
Collections. Amounts paid by a Seller pursuant to Section 2.5 shall be deemed to
be Principal Collections.
"Principal Receivable" with respect to an Account means amounts shown on
the Seller's records as Receivables (other than such amounts which represent
Non-Principal Receivables) payable by the related Dealer.
"Products" means the commercial and consumer goods financed by an
Originator for Dealers.
"Purchase Date" means the Closing Date and, thereafter, each Business Day.
"Purchase Price" is defined in Section 2.4(a).
"Rating Agency" is defined in the Indenture.
"Reassignment" is defined in Section 2.7(a).
"Receivable" means, with respect to an Account, all amounts payable
(including interest, finance charges and other charges), and the obligation to
pay such amounts, by the related Dealer from time to time in respect of advances
made by an Originator to or on behalf of such Dealer in connection with the
Floorplan Business, the Accounts Receivable Business or the Asset Based Lending
Business, as the case may be, together with the group of writings evidencing
such amounts and the security interest created in connection therewith and all
of the rights, remedies, powers and privileges thereunder (including under the
related Financing Agreement); provided, that if a Participation Interest has
been created in respect of such Account, whether before or after such Account
has been designated as an Account, the amounts so payable by the related Dealer
that are allocable to such Participation Interest shall not be part of the
"Receivables" in respect of such Account. A Receivable that, prior to its
transfer to Buyer, was subject to a participation from an Originator in favor of
another Originator shall be considered a Receivable.
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"Records" means, with respect to any Receivable, all Financing Agreements
and other documents, books, records and other information (including computer
programs, tapes, disks, data processing software and related property and
rights) relating to such Receivable and the related Dealer.
"Recoveries" on any date means all amounts received, including Insurance
Proceeds, during the Monthly Period immediately preceding such date with respect
to Receivables which have previously become Defaulted Receivables.
"Related Documents" means this Agreement, the Second Tier Agreement, the
Trust Agreement, the Servicing Agreement, the Indenture, any Indenture
Supplement and all other pledges, powers of attorney, consents, assignments,
contracts, notices, and all other written matter whether heretofore, now or
hereafter executed by or on behalf of any Person, or any employee of any Person,
and delivered in connection with any of the foregoing or the transactions
contemplated thereby.
"Removed Account" means an Account that is removed from the Account
Schedule in accordance with Section 2.7.
"Removal Date" is defined in Section 2.7(a).
"Removal Notice Date" is defined in Section 2.7(a).
"Requirements of Law" means, as to any Person, the certificate of
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether federal, state or local.
"S&P" means Standard & Poor's Ratings Services, a division of The XxXxxx -
Xxxx Companies, Inc.
"S&P Condition" is defined in the Indenture.
"SAU" means, with respect to a Receivable, that if such Receivable was
originally secured by a security interest in a Product, such Product has been
sold and such Receivable is not paid in full.
"Second Tier Agreement" means the Receivables Purchase and Contribution
Agreement dated as of August 12, 2004, between Buyer and Issuer.
"Seller" means GE Commercial Distribution Finance Corporation, Transamerica
Commercial Finance Corporation, Brunswick Acceptance Company, LLC, or any
additional Person designated as a "Seller" in accordance with Section 2.8.
"Seller Termination Date" is defined in Section 7.4.
"Series" means a series of notes issued under the Indenture.
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"Servicing Agreement" means the Servicing Agreement dated as of August 12,
2004, between Master Servicer and the Issuer.
"Sub-Servicer" means any Person with whom Master Servicer enters into a
Sub-Servicing Agreement.
"Sub-Servicing Agreement" means any written contract entered into between
Master Servicer and any Sub-Servicer relating to the servicing, administration
or collection of any Transferred Receivables.
"Subsidiary" means, with respect to any Person, any corporation or other
entity (a) of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other Persons
performing similar functions are at the time directly or indirectly owned by
such Person or (b) that is directly or indirectly controlled by such Person
within the meaning of control under Section 15 of the Securities Act of 1933.
"Transfer Date" means, with respect to a Transferred Receivable, the date
on which Buyer acquires such Transferred Receivable from a Seller pursuant to
Section 2.1 or any Assignment.
"Transferred Assets" is defined in Section 2.1(a).
"Transferred Receivable" means any Receivable purchased by Buyer from a
Seller pursuant to this Agreement or any Assignment, including Principal
Receivables and Non-Principal Receivables that exist at the time of purchase of
any Principal Receivables in the same Account or that arise in an Account after
the date of purchase of Principal Receivables in the Account. However,
Receivables that are repurchased by a Seller pursuant to this Agreement or
purchased by Master Servicer pursuant to the Servicing Agreement shall cease to
be considered "Transferred Receivables" from the date of such purchase.
"Trust Agreement" means the Amended and Restated Trust Agreement dated as
of August 12, 2004, between Buyer and The Bank of New York (Delaware), as
trustee.
"UCC" means, with respect to any jurisdiction, the Uniform Commercial Code
as the same may, from time to time, be enacted and in effect in such
jurisdiction.
"United States" means the United States of America, together with its
territories and possessions.
"Wholesale Financing Agreement" means a wholesale financing agreement
entered into by an Originator and a Dealer in order to finance Products
purchased by such Dealer from a Manufacturer.
Section 1.2 Other Interpretive Matters. All terms defined directly or by
incorporation in this Agreement shall have the defined meanings when used in any
certificate or other document delivered pursuant thereto unless otherwise
defined therein. For purposes of this Agreement and all related certificates and
other documents, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms
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partly defined in this Agreement to the extent not defined, shall have the
respective meanings given to them under GAAP; (b) unless otherwise provided,
references to any month, quarter or year refer to a calendar month, quarter or
year; (c) terms defined in Article 9 of the UCC as in effect in the applicable
jurisdiction and not otherwise defined in this Agreement are used as defined in
that Article; (d) references to any amount as on deposit or outstanding on any
particular date means such amount at the close of business on such day; (e) the
words "hereof," "herein" and "hereunder" and words of similar import refer to
this Agreement (or the certificate or other document in which they are used) as
a whole and not to any particular provision of this Agreement (or such
certificate or document); (f) references to any Section, Schedule or Exhibit are
references to Sections, Schedules and Exhibits in or to this Agreement (or the
certificate or other document in which the reference is made), and references to
any paragraph, subsection, clause or other subdivision within any Section or
definition refer to such paragraph, subsection, clause or other subdivision of
such Section or definition; (g) the term "including" means "including without
limitation"; (h) references to any law or regulation refer to that law or
regulation as amended from time to time and include any successor law or
regulation; (i) references to any agreement refer to that agreement as from time
to time amended, restated or supplemented or as the terms of such agreement are
waived or modified in accordance with its terms; and (j) references to any
Person include that Person's successors and permitted assigns.
ARTICLE II
SALES
Section 2.1 Sales.
(a) By execution of this Agreement, each Seller does hereby transfer,
assign, set over and otherwise convey to Buyer, without recourse except as
provided herein, all its right, title and interest in, to and under, the
following (the "Transferred Assets"): (i) the Receivables existing at the
opening of business on the Closing Date, and thereafter created from time to
time until the Agreement Termination Date (or, if applicable, the Seller
Termination Date relating to such Seller), together with the Collateral Security
and Collections with respect thereto and related Recoveries, in each case
together with all monies due or to become due and all amounts received or
receivable with respect thereto and Insurance Proceeds relating thereto, (ii)
without limiting the generality of the foregoing or the following, all of such
Seller's rights to receive payments from any Dealer in respect of such
Receivables and (iii) all proceeds of all of the foregoing. The foregoing does
not constitute and is not intended to result in the creation or assumption by
Buyer of any obligation of any Seller or any other Person in connection with the
Accounts or the Transferred Receivables or under any agreement or instrument
relating thereto, including any obligation under the Financing Agreements, the
Floorplan Agreements or any Participation Agreement or any obligation to any
Dealer or any Manufacturer. The foregoing conveyance shall be effective (x) on
the Closing Date, as to all Transferred Assets then existing (it being
understood and agreed that, in the case of this clause (x), the Collections
transferred to Buyer shall include all Collections since July 31, 2004), and (y)
on each Purchase Date, as to all Transferred Assets arising since the prior
Purchase Date.
(b) Each Seller agrees, at its own expense, (i) on or prior to (x) the
Closing Date, in the case of the Initial Accounts, (y) the applicable Addition
Date, in the case of Additional
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Accounts, and (z) the applicable Removal Date, in the case of Removed Accounts,
to indicate, or cause to be indicated, in the appropriate computer files that
Receivables created (or reassigned, if applicable, in the case of Removed
Accounts) in connection with the Accounts have been conveyed to Buyer pursuant
to this Agreement (or conveyed to a Seller or its designee, if applicable, in
accordance with Section 2.7, in the case of Removed Accounts) by including, or
causing to be included, in such computer files a code so identifying each such
Account (or, in the case of Removed Accounts, deleting, or causing to be
deleted, such code thereafter) and (ii) on or prior to the date referred to in
clauses (i)(x), (y) or (z), as applicable, to deliver to Buyer an Account
Schedule. The initial such Account Schedule, as supplemented from time to time
to reflect Additional Accounts and Removed Accounts, shall be marked as Schedule
1 to this Agreement and is hereby incorporated into and made a part of this
Agreement. Once the code referenced in clause (i) of this paragraph has been
included with respect to any Account, each Seller further agrees not to permit
such code to be altered during the remaining term of this Agreement unless and
until (x) such Account becomes a Removed Account, or (y) such Seller shall have
delivered to Buyer at least thirty (30) days' prior written notice of its
intention to do so and has taken such action as is necessary or advisable to
cause the interest of Buyer in the Transferred Receivables to continue to be
perfected with the priority required by this Agreement.
Section 2.2 Acceptance by Buyer.
(a) Buyer hereby acknowledges its acceptance of all right, title and
interest to the property, now existing and hereafter created, conveyed to Buyer
pursuant to Section 2.1. Buyer shall maintain a copy of Schedule 1, as delivered
to it from time to time.
(b) Buyer hereby agrees not to disclose to any Person any account numbers
or other information contained in the Account Schedule marked as Schedule 1 and
delivered to Buyer, from time to time, except (i) to Master Servicer, any
Sub-Servicer or as required by a Requirement of Law applicable to Buyer, (ii) in
connection with the performance of Buyer's duties hereunder, (iii) to the
indenture trustee under the Indenture in connection with its duties or (iv) to
bona fide creditors or potential creditors of Master Servicer or a Seller for
the limited purpose of enabling any such creditor to identify Transferred
Receivables or Accounts subject to this Agreement. Buyer agrees to take such
measures as shall be reasonably requested by a Seller to protect and maintain
the security and confidentiality of such information and, in connection
therewith, shall allow each Seller or its duly authorized representatives to
inspect Buyer's security and confidentiality arrangements from time to time
during normal business hours upon prior written notice. Buyer shall promptly
notify each Seller of any request received by Buyer to disclose information of
the type described in this Section 2.2(b), which notice shall in any event be
provided no later than five (5) Business Days prior to disclosure of any such
information unless Buyer is compelled pursuant to a Requirement of Law to
disclose such information prior to the date that is five (5) Business Days after
the giving of such notice.
Section 2.3 Characterization of Transfers. The parties hereto intend that
each transfer of the Transferred Assets shall constitute a sale by each Seller
to Buyer and not a loan by Buyer to a Seller secured by the Transferred Assets.
If, contrary to the intent of the parties hereto, a court of competent
jurisdiction determines that any transaction provided for herein constitutes a
loan and not a sale of the Transferred Assets, then this Agreement shall
constitute a security agreement under applicable law and each Seller shall be
deemed to have granted, and each Seller
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hereby grants, to Buyer a security interest in and to all of such Seller's
right, title and interest in, to and under the Transferred Assets.
Section 2.4 Purchase Price.
(a) The purchase price for the Transferred Receivables and the other
Transferred Assets related thereto shall equal the fair market value of such
Transferred Receivables and other Transferred Assets as agreed upon by Buyer and
the applicable Seller prior to such sale (such amount for any Transferred
Receivables and other Transferred Assets, the "Purchase Price").
(b) The Purchase Price for any Transferred Assets sold by a Seller shall be
payable in full in cash on each Purchase Date or less frequently if so agreed
between Buyer and Seller; provided, however, that Buyer may, with respect to any
sale, offset against such Purchase Price any amounts owed by the applicable
Seller to Buyer hereunder and which remain unpaid. On each such Purchase Date or
other date set by the parties for payment, Buyer shall, upon satisfaction of the
applicable conditions set forth in Article III, make available to the applicable
Seller the Purchase Price for the applicable Transferred Assets in same day
funds.
Section 2.5 Adjustments. If on any day the outstanding amount of any
Principal Receivable is reduced because of a rebate, refund, unauthorized charge
or billing error by a Seller to a Dealer, or because such Principal Receivable
was created in respect of merchandise which was refused or returned by a Dealer,
or if the outstanding amount of any Principal Receivable is otherwise reduced by
a Seller other than on account of Collections thereof or such amount being
charged-off as uncollectible, then the applicable Seller shall compensate Buyer
for such reduction in the outstanding amount of such Principal Receivable as
provided below. Any adjustment required pursuant to the preceding sentence shall
be made not later than the second Business Day after the Date of Processing for
the event giving rise to such adjustment or less frequently if so agreed between
Buyer and the applicable Seller. The amount of each such reduction shall be
deducted from the amount of the Purchase Price payable by Buyer to such Seller
on the Purchase Date that coincides with or next follows the date of the
adjustment, and such Seller shall pay Buyer on that Purchase Date any excess of
the aggregate amount of such reductions over the aggregate Purchase Price
otherwise payable to such Seller on that Purchase Date. Notwithstanding the
foregoing, on any Purchase Date the aggregate amount of such reductions shall be
paid gross by the applicable Seller to Buyer, without netting against the
Purchase Price, to the extent that Buyer informs such Seller that Buyer requires
funds to make payments on account of such reductions under any of the Related
Documents.
Section 2.6 Addition of Accounts.
(a) Additional Accounts. From time to time, a Seller may designate
additional Eligible Accounts ("Additional Accounts") to be included as Accounts.
(b) Designated Participation Interests. In lieu of, or in addition to,
designating Additional Accounts as contemplated by subsection (a) above, a
Seller may convey to Buyer participations or trust certificates representing
undivided or beneficial interests in a pool of assets primarily consisting of
receivables arising under dealer floorplan loan credit arrangements owned by
such Seller or any of its Affiliates and collections thereon ("Designated
Participation
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Interests"). Each Seller and Buyer will enter into a supplement to this
Agreement relating to the conveyance of any Designated Participation Interest.
(c) Conditions for Additions of Additional Accounts. Any sale of
Receivables from Additional Accounts shall occur only upon satisfaction of the
following conditions (to the extent provided below):
(i) on or before the Addition Date, the applicable Seller shall have
delivered to Buyer, (x) a written assignment in substantially the form of
Exhibit A (the "Assignment"), and such Seller shall indicate in its
computer files that the Receivables created in connection with the
Additional Accounts have been transferred to Buyer, and (y) an Account
Schedule reflecting the addition of such Additional Accounts (which Account
Schedule shall be attached as a schedule to such Assignment); and
(ii) such Seller shall deliver an Opinion of Counsel with respect to
the Receivables in the Additional Accounts to Buyer (in such numbers and
with such additional addressees as Buyer may reasonably request)
substantially in the form of Exhibit C (with appropriate modifications).
Section 2.7 Removal of Accounts.
(a) From time to time, but not more frequently than once during each
Monthly Period for any Dealer, a Seller may request (which request Buyer may
deny): (i) the removal of one or more Accounts from the Account Schedule, and
(ii) if any such Account was not an Eligible Account at the time such Account
was originally added to the Account Schedule, the reassignment to such Seller or
its designee of all Buyer's right, title and interest in, to and under (A) the
Transferred Receivables then existing and thereafter created in such Account,
(B) the Collateral Security, Collections and Recoveries with respect thereto,
and (C) all monies due or to become due and all amounts received or receivable
with respect thereto and Insurance Proceeds relating thereto. Any such removal
and reassignment shall be subject to the satisfaction of the following
conditions:
(i) on or before the tenth Business Day immediately preceding the
Removal Date (the "Removal Notice Date"), the applicable Seller shall have
given Buyer written notice of such request and specifying the date for
removal of the proposed Removed Accounts (the "Removal Date");
(ii) Buyer shall have delivered its written consent for such removal
to such Seller;
(iii) on or prior to the Removal Date, such Seller shall have
delivered to Buyer a schedule listing the proposed Removed Accounts and a
schedule listing the Accounts that are not proposed to be Removed Accounts
(which schedules shall be attached as schedules to such Reassignment); and
(iv) such Seller shall have delivered to Buyer an Officer's
Certificate, dated as of the Removal Date, to the effect that (i) no
selection procedure believed by such Seller to be materially adverse to the
interest of Buyer or any of its creditors has been used in
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removing Removed Accounts; and (ii) Accounts (or administratively
convenient groups of Accounts) were chosen for removal on a random basis or
another basis not involving adverse selection that such Seller believes is
consistent with achieving derecognition of the Transferred Receivables
under GAAP.
Upon satisfaction of the above conditions (and subject to receipt by Buyer
of the reassignment price agreed upon between Buyer and the applicable Seller):
(i) Buyer shall execute and deliver to the applicable Seller or its designee a
written reassignment in substantially the form of Exhibit B (the
"Reassignment"); (ii) the Account Schedule shall be deemed to have been amended
to remove such Removed Accounts; and (iii) if such Removed Accounts were not
Eligible Accounts at the time such Accounts were originally designated as
Accounts, Buyer shall, without further action, be deemed to transfer, assign,
set over and otherwise convey to Seller or its designee, effective as of the
Removal Date, without recourse, representation or warranty, all the right, title
and interest of Buyer in and to the Transferred Receivables arising in such
Removed Accounts, the Collateral Security and Collections and Recoveries with
respect thereto, and all monies due or to become due and all amounts received or
receivable with respect thereto and Insurance Proceeds relating thereto and all
proceeds of the foregoing). In addition, Buyer shall execute such other
documents and instruments of transfer or assignment and take such other actions
as shall reasonably be requested by Seller to effect the conveyance of
Transferred Receivables pursuant to clause (iii) of the previous sentence.
Section 2.8 Additional Sellers. A Seller may designate additional or
substitute Persons to be included as Sellers by an amendment to this Agreement
upon Buyer's consent (without the consent of any other party hereto), which
consent Buyer covenants to grant if Buyer is permitted to consent to such
designation under the Second Tier Agreement.
Section 2.9 Additional Originators. A Seller may designate additional
Persons as Originators by an amendment to this Agreement upon Buyer's consent
(without the consent of any other party hereto), which consent Buyer covenants
to grant if Buyer is permitted to consent to such designation under the Second
Tier Agreement.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions to Initial Transfer. The initial sale or conveyance
hereunder shall be subject to satisfaction of each of the following conditions
precedent (any one or more of which may be waived in writing by Buyer) as of the
Closing Date:
(a) Documents. This Agreement or counterparts hereof shall have been duly
executed by, and delivered to, the initial Sellers and Buyer, and Buyer shall
have received such documents, instruments, agreements and legal opinions as
Buyer shall reasonably request in connection with the transactions contemplated
by this Agreement, each in form and substance reasonably satisfactory to Buyer.
(b) Governmental Approvals. Buyer shall have received satisfactory evidence
that the initial Sellers have obtained all consents and approvals of all
Persons, including all requisite
16
Governmental Authorities, if any, required for the initial Sellers to execute,
deliver and perform this Agreement and to consummate the transactions
contemplated hereby.
(c) Compliance with Laws. Each initial Seller shall be in compliance with
all applicable foreign, federal, state and local laws and regulations, except to
the extent that the failure to so comply, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
Section 3.2 Conditions to all Transfers. Each sale by a Seller hereunder
(including the initial sale) shall be subject to satisfaction of the following
further conditions precedent (any one or more of which, except clause (b) below,
may be waived in writing by Buyer and upon satisfaction of the S&P Condition) as
of the Transfer Date therefor:
(a) the representations and warranties of such Seller contained herein or
in any other Related Document required to be made on such Transfer Date shall be
true and correct in all material respects as of such Transfer Date, both before
and after giving effect to such sale; and
(b) such Seller shall be in compliance in all material respects with each
of its covenants and other agreements set forth herein.
The consummation by a Seller of the sale, as applicable, of Transferred Assets
on any Transfer Date shall be deemed to constitute, as of any such Transfer
Date, a representation and warranty by such Seller that the conditions in
clauses (a) and (b) of this Section 3.2 have been satisfied as of such Transfer
Date.
ARTICLE IV
OTHER MATTERS RELATING TO SELLERS
Section 4.1 Merger or Consolidation of, or Assumption of the Obligations
of, Sellers, etc.
(a) A Seller shall not consolidate with or merge into any other Person or
convey or transfer its properties and assets substantially as an entirety to any
Person unless:
(i) the Person formed by such consolidation or into which such Seller
is merged or the Person which acquires by conveyance or transfer the
properties and assets of such Seller substantially as an entirety shall be,
if such Seller is not the surviving entity, an entity organized and
existing under the laws of the United States of America or any State or the
District of Columbia, and, if such Seller is not the surviving entity, such
entity shall expressly assume, by an agreement supplemental hereto,
executed and delivered to Buyer, in form reasonably satisfactory to Buyer,
the performance of every covenant and obligation of such Seller hereunder;
(ii) such Seller has delivered to Buyer (A) an Officer's Certificate
stating that such consolidation, merger, conveyance or transfer and such
supplemental agreement comply with this Section and that all conditions
precedent herein provided for relating to such transaction have been
complied with, and (B) an Opinion of Counsel to the effect
17
that such supplemental agreement is a valid and binding obligation of such
surviving entity enforceable against such surviving entity in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally from time to time in effect and
except as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity);
(iii) if such Seller is not the surviving entity, (A) the surviving
entity shall file a new UCC financing statement with respect to the
ownership interest of Buyer in the Transferred Assets, if any, and (B) GE
Capital confirms in writing to Buyer that the Originator Guaranty applies
to the surviving entity; and
(iv) prior written notice shall have been delivered to Buyer and each
Rating Agency with respect to such merger, conveyance or transfer.
(b) This Section 4.1 shall not be construed to prohibit or in any way limit
a Seller's ability to effectuate any consolidation or merger pursuant to which
such Seller would be the surviving entity.
(c) The obligations of a Seller hereunder shall not be assignable nor shall
any Person succeed to the obligations of a Seller hereunder except with
satisfaction of the S&P Condition and in each case in accordance with (i) the
provisions of the foregoing paragraphs, (ii) Section 2.8 or (iii) conveyances,
mergers, consolidations, assumptions, sales or transfers to other entities (1)
for which such Seller delivers an Officer's Certificate to Buyer indicating that
such Seller reasonably believes that such action will not result in a Material
Adverse Effect, (2) which meet the requirements of clause (ii) of paragraph (a)
and (3) for which such purchaser, transferee, pledgee or entity shall expressly
assume, in an agreement supplemental hereto, executed and delivered to Buyer in
writing in form satisfactory to Buyer, the performance of every covenant and
obligation of such Seller thereby conveyed.
ARTICLE V
BANKRUPTCY EVENTS
Section 5.1 Rights upon the Occurrence of a Bankruptcy Event. If a
Bankruptcy Event occurs with respect to a Seller, such Seller shall, on the day
any such event occurs, immediately cease to transfer Receivables to Buyer and
shall promptly give notice of such event to the indenture trustee under the
Indenture and Buyer. If a Bankruptcy Event occurs with respect to Buyer, Buyer
shall cease to purchase Receivables from the Sellers. Notwithstanding any
cessation of the transfer to Buyer of additional Receivables, Receivables
transferred to Buyer prior to the occurrence of such Bankruptcy Event, and
Collections in respect of such Receivables, shall continue to be property of
Buyer.
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.1 Representations and Warranties of Seller.
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(a) To induce Buyer to accept the Transferred Assets, each Seller severally
makes the following representations and warranties to Buyer, as of the Closing
Date (in the case of the initial Sellers) and, to the extent applicable, on each
subsequent Transfer Date following the date on which such Seller became a
Seller.
(i) Valid Existence; Power and Authority. Such Seller (A) is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization; (B) is duly qualified to conduct business and
is in good standing in each other jurisdiction where its ownership or lease
of property or the conduct of its business requires such qualification and
where the failure to be so qualified or in good standing would have a
Material Adverse Effect; (C) has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement; and (D)
is able to perform its obligations under this Agreement.
(ii) UCC Information. The true legal name of such Seller as registered
in the jurisdiction of its organization and the current location of such
Seller's jurisdiction of organization are set forth in Schedule 6.1(a)(ii)
and such name and location have not changed within the past twelve (12)
months. In addition, Schedule 6.1(a)(ii) lists such Seller's (A) federal
employer identification number and (B) organizational identification number
as designated by the jurisdiction of its organization.
(iii) Authorization of Transaction; No Violation. The execution,
delivery and performance by such Seller of this Agreement and the other
Related Documents to which such Seller is a party and, without limiting the
foregoing, the creation of all ownership interests provided for herein: (A)
have been duly authorized by all necessary action on the part of such
Seller, and (B) do not violate any provision of any law or regulation of
any Governmental Authority, or contractual or restrictions binding on such
Seller, except where such violations, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(iv) Enforceability. On or prior to the Closing Date, each of the
Related Documents to which a Seller is a party shall have been duly
executed and delivered by such Seller and each such Related Document shall
then constitute a legal, valid and binding obligation of such Seller
enforceable against it in accordance with its terms, subject to bankruptcy,
receivership, conservatorship, insolvency, reorganization, moratorium and
other similar laws of general applicability relating to or affecting
creditors' rights and to general principles of equity.
(v) No Proceedings. There are no proceedings or, to the best knowledge
of such Seller, investigations, pending or threatened against such Seller,
before any Governmental Authority (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, (iii) seeking any
determination or ruling that, in the reasonable judgment of such Seller,
would materially and adversely affect the performance by such Seller of its
obligations under this Agreement or (iv) seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Agreement.
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(vi) Accuracy of Certain Information. All written factual information
heretofore furnished by such Seller to Buyer with respect to the
Transferred Receivables for the purposes of, or in connection with, this
Agreement was true and correct in all material respects on the date as of
which such information was stated or certified.
(vii) Use of Proceeds. No proceeds received by such Seller under this
Agreement will be used by it for any purpose that violates Regulation U of
the Federal Reserve Board.
(viii) Transferred Receivables. With respect to each Transferred
Receivable relating to such Seller, such Seller represents and warrants
that as of the Transfer Date for such Transferred Receivable:
(A) such Transferred Receivable satisfies the criteria for an
Eligible Receivable as of such Transfer Date;
(B) all authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required
to be obtained, effected or given by such Seller in connection with
the conveyance by such Seller of such Transferred Receivable to Buyer
have been duly obtained, effected or given and are in full force and
effect; and
(C) the additional representations and warranties set forth in
Schedule 6.1(a)(viii) are true and correct.
The representations and warranties described in this Section 6.1(a) shall
survive the sale of the Transferred Assets to Buyer, any subsequent assignment
or sale of the Transferred Assets by Buyer, and the termination of this
Agreement and the other Related Documents and shall continue until the payment
in full of all Transferred Assets.
(b) Upon discovery by a Seller or Buyer of a breach of any of the
representations and warranties by such Seller set forth in this Section 6.1, the
party discovering such breach shall give prompt written notice to the other.
Each Seller agrees to cooperate with Buyer in attempting to cure any such
breach.
(c) If any representation or warranty of a Seller contained in Section
6.1(a)(viii) is not true and correct in any material respect as of the date
specified therein with respect to any Transferred Receivable or any Account and
as a result of such breach Buyer's interest in such Transferred Receivable or
Account is materially and adversely affected, including if Buyer's rights in, to
or under such Transferred Receivables or the proceeds of such Transferred
Receivables are impaired or such proceeds are not available for any reason to
Buyer free and clear of any Lien other than Permitted Encumbrances, unless cured
within sixty (60) days (or such longer period, not in excess of one hundred
twenty (120) days, as may be agreed to by Buyer) after the earlier to occur of
the discovery thereof by such Seller or receipt by such Seller of notice thereof
given by Buyer, then such Transferred Receivable shall be designated an
"Ineligible Receivable;" provided, that such Transferred Receivables will not be
deemed to be Ineligible Receivables but will be deemed Eligible Receivables if,
on any day prior to the end of such sixty (60) day or longer period, (i) the
relevant representation and warranty shall be true and
20
correct in all material respects as if made on such day and (ii) such Seller
shall have delivered an Officer's Certificate describing the nature of such
breach and the manner in which the relevant representation and warranty became
true and correct.
(d) On the first Purchase Date that coincides with or falls after the date
on which any Transferred Receivable is designated as an Ineligible Receivable,
the applicable Seller shall repurchase such Ineligible Receivable from Buyer as
provided below. The repurchase price for the Ineligible Receivables in any
Account shall equal the Purchase Price paid for such Ineligible Receivables,
less any Principal Collections received on that Receivable from the Closing Date
or relevant Transfer Date, as applicable. On any Purchase Date the aggregate
amount of such repurchase prices then payable may be netted against the Purchase
Price then payable, unless Buyer informs such Seller that Buyer requires funds
to make payments on account of the related Ineligible Receivables under any of
the Related Documents, in which case such amounts shall be paid gross.
(e) If any representation or warranty of a Seller contained in Section
6.1(a)(i), 6.1(a)(ii), 6.1(a)(iii) or 6.1(a)(iv) of this Agreement is not true
and correct in any material respect and such breach has a material adverse
effect on the Transferred Receivables transferred to Buyer by such Seller or the
availability of the proceeds thereof to Buyer, such Seller shall be obligated to
accept a reassignment of such Transferred Receivables, if such breach and any
material adverse effect caused by such breach is not cured within sixty (60)
days (or within such longer period, not in excess of one hundred fifty (150)
days, as may be agreed to by Buyer), after the earlier to occur of the discovery
thereof by such Seller or receipt by such Seller of notice thereof given by
Buyer, on the terms set forth below; provided, that such Transferred Receivables
will not be reassigned to such Seller if, on any day prior to the end of such
sixty (60) day or longer period (i) the relevant representation and warranty
shall be true and correct in all material respects as if made on such day and
(ii) such Seller shall have delivered an Officer's Certificate describing the
nature of such breach and the manner in which the relevant representation and
warranty became true and correct. In connection with a reassignment pursuant to
the preceding sentence, such Seller shall pay to Buyer in immediately available
funds not later than 12:00 noon, New York City time, on the first Payment Date
following the Monthly Period in which such reassignment obligation arises, in
payment for such reassignment, an amount equal to the Aggregate Reassignment
Amount. The payment of such deposit amount in immediately available funds shall
otherwise be considered payment in full of all of such Transferred Receivables.
(f) Upon the payment, if any, required to be made to Buyer as provided in
Section 6.1(d) or 6.1(e), Buyer shall automatically and without further action
be deemed to transfer, assign, set over and otherwise convey to the applicable
Seller or its designee, without recourse, representation or warranty, all the
right, title and interest of Buyer in and to the applicable Transferred
Receivables, all moneys due or to become due and all amounts received with
respect thereto and all proceeds thereof. Buyer shall execute such documents and
instruments of transfer or assignment and take such other actions as shall
reasonably be requested by such Seller to effect the conveyance of such
Transferred Receivables pursuant to this Section.
21
Section 6.2 Affirmative Covenants of Seller. Each Seller severally
covenants and agrees that, unless otherwise consented to by Buyer, from and
after the Closing Date (or the relevant Transfer Date, as applicable) and until
the date after the Agreement Termination Date or, if applicable, the Seller
Termination Date relating to such Seller, when the Outstanding Balance of all
Transferred Receivables relating to such Seller have been reduced to zero:
(a) Account Allocations. If such Seller is unable for any reason to
transfer Transferred Receivables to Buyer in accordance with the provisions of
this Agreement (including by reason of the application of the provisions of
Section 5.1 or an order by any Governmental Authority that such Seller not
transfer any additional Receivables to Buyer) then, in any such event, such
Seller agrees to allocate and pay to Buyer or Master Servicer on its behalf,
after the date of such inability, all Collections with respect to Transferred
Receivables previously sold by such Seller to Buyer.
(b) Notice of Material Event. Each Seller shall promptly inform Buyer in
writing of the occurrence of any of the following with respect to such Seller,
in each case setting forth the details thereof and what action, if any, such
Seller proposes to take with respect thereto:
(i) any Litigation commenced or threatened against such Seller or with
respect to or in connection with all or any substantial portion of the
Transferred Assets or developments in such Litigation, in each case, that
such Seller believes has a reasonable risk of being determined adversely
and having a Material Adverse Effect;
(ii) the commencement of a proceeding against such Seller seeking a
decree or order in respect of Seller (A) under any Debtor Relief Laws, (B)
appointing a custodian, receiver, liquidator, assignee, trustee or
sequestrator (or similar official) for such Seller or for any substantial
part of such Seller's assets, or (C) ordering the winding-up or liquidation
of the affairs of such Seller; or
(iii) such Seller's failure to comply with any of its obligations
under this Agreement.
(c) Notice of Liens. Each Seller shall notify Buyer promptly after becoming
aware of any Lien on any Transferred Asset other than Permitted Encumbrances.
(d) Information for Reports. Each Seller shall promptly deliver any
material written information, documents, records or reports with respect to the
Transferred Receivables that Buyer shall reasonably request.
(e) Deposit of Collections. Each Seller shall transfer to Buyer or Master
Servicer on its behalf, promptly, and in any event no later than the Business
Day after receipt thereof, all Collections it may receive in respect of
Transferred Assets.
(f) Financing Agreements and Policies. Each Seller shall comply with and
perform its obligations under the Financing Agreements relating to the Accounts
and the Credit and Collection Policies except insofar as any failure to comply
or perform would not materially and adversely affect the rights of Buyer.
22
Section 6.3 Negative Covenants of Seller. Each Seller severally covenants
and agrees that, without the prior written consent of Buyer, from and after the
Closing Date (or the relevant Transfer Date, as applicable) and until the date
after the Agreement Termination Date (or, if applicable, the Seller Termination
Date relating to such Seller) when the Outstanding Balances of all Transferred
Receivables transferred hereunder by such Seller prior to such Agreement
Termination Date (or, if applicable, the Seller Termination Date relating to
such Seller) have been reduced to zero:
(a) Liens. Each Seller shall not create, incur, assume or permit to exist
any Lien, other than Permitted Encumbrances, on or with respect to the
Transferred Assets.
(b) Amendments to Financing Agreements and Credit and Collection Policies.
Such Seller shall not amend the Financing Agreements; provided, that this
sentence shall not prevent a Seller from assigning its rights in a Financing
Agreement to another Seller. Such Seller shall not amend its Credit and
Collection Policies if such amendment would be adverse in any material respect
to Buyer.
(c) UCC Matters. Such Seller shall not change its state of organization or
formation or its name such that any financing statement filed to perfect Buyer's
interests under this Agreement would become seriously misleading, unless such
Seller shall have given Buyer not less than thirty (30) days' prior written
notice of such change.
(d) No Proceedings. From and after the Closing Date and until the date one
year plus one day following the date on which all amounts due with respect to
securities rated by a rating agency that were issued by any entity holding
Transferred Assets or an interest therein have been paid in full in cash, such
Seller shall not, directly or indirectly, institute or cause to be instituted
against Buyer any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceeding under any Debtor Relief Laws;
provided, that the foregoing shall not in any way limit such Seller's right to
pursue any other creditor rights or remedies that such Seller may have under any
applicable law.
(e) Sale Characterization. For accounting purposes, such Seller shall not
account for the transactions contemplated by this Agreement in any manner other
than, with respect to the sale of each Transferred Receivable, as a true sale
and absolute assignment of its full right, title and ownership interest in the
related Transferred Assets to Buyer. Such Seller shall also maintain its records
and books of account in a manner which clearly reflects each such sale of the
Transferred Receivables to Buyer.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any party hereto
by any other party hereto, or whenever any party hereto desires to give or serve
upon any other party hereto any communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or
23
other communication shall be in writing and shall be deemed to have been validly
served, given or delivered (a) upon the earlier of actual receipt and three (3)
Business Days after deposit in the United States mail, registered or certified
mail, return receipt requested, with proper postage prepaid, (b) upon
transmission, when sent by telecopy or other similar facsimile transmission
(with such telecopy or facsimile promptly confirmed by delivery of a copy by
personal delivery or United States mail as otherwise provided in this Section
7.1), (c) one (1) Business Day after deposit with a reputable overnight courier
with all charges prepaid or (d) when delivered, if hand-delivered by messenger,
all of which shall be addressed to the party to be notified and sent to the
address or facsimile number set forth below or to such other address (or
facsimile number) as may be substituted by notice given as herein provided. The
giving of any notice required hereunder may be waived in writing by the party
entitled to receive such notice. Failure or delay in delivering copies of any
notice, demand, request, consent, approval, declaration or other communication
to any Person (other than Buyer) designated in any written communication
provided hereunder to receive copies shall in no way adversely affect the
effectiveness of such notice, demand, request, consent, approval, declaration or
other communication. Notwithstanding the foregoing, whenever it is provided
herein that a notice is to be given to any other party hereto by a specific
time, such notice shall be effective only if actually received by such party
prior to such time, and if such notice is received after such time or on a day
other than a Business Day, such notice shall be effective only on the
immediately succeeding Business Day.
If to a Seller:
GE Commercial Distribution Finance Corporation
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Transamerica Commercial Finance Corporation
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or
Brunswick Acceptance Company, LLC
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile (000) 000-0000
If to Buyer:
24
CDF Funding, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Manager - Securitization
Telephone: (000) 000-0000
With a copy to:
General Electric Capital Corporation
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Portfolio Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 7.2 No Waiver; Remedies.
(a) The failure of any party hereto, at any time or times, to require
strict performance by any other party hereto of any provision of this Agreement
shall not waive, affect or diminish any right of such party thereafter to demand
strict compliance and performance with this Agreement. Any suspension or waiver
of any breach or default hereunder shall not suspend, waive or affect any other
breach or default whether the same is prior or subsequent thereto and whether of
the same or a different type. None of the undertakings, agreements, warranties,
covenants and representations of any party contained in this Agreement, and no
breach or default by any party under this Agreement, shall be deemed to have
been suspended or waived or amended by any other party hereto unless such waiver
or suspension or amendment is by an instrument in writing signed by an officer
of or other duly authorized signatory of such party and, in the case of a
suspension or waiver, directed to the defaulting party specifying such
suspension or waiver.
(b) Each party's rights and remedies under this Agreement shall be
cumulative and nonexclusive of any other rights and remedies that such party may
have under any other agreement, including the other Related Documents, by
operation of law or otherwise.
Section 7.3 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of each Seller and Buyer and their respective
successors and permitted assigns, except as otherwise provided herein. Except as
provided below and in Sections 2.8 or 4.1 of this Agreement, a Seller may not
assign, transfer, hypothecate or otherwise convey its rights, benefits,
obligations or duties hereunder without having obtained the prior express
written consent of Buyer and having met the S&P Condition. Any such purported
assignment, transfer, hypothecation or other conveyance by such Seller without
the prior express written consent of Buyer shall be void. Each Seller
acknowledges that under the Second Tier Agreement, Buyer will assign its rights
granted hereunder to the Issuer, and upon such assignment the Issuer shall have,
to the extent of such assignment, all rights of Buyer hereunder and such
transferee may in turn transfer such rights. The terms and provisions of this
Agreement are for the purpose of defining the relative rights and obligations of
each Seller and Buyer with respect to the
25
transactions contemplated hereby and no Person shall be a third-party
beneficiary of any of the terms and provisions of this Agreement.
Section 7.4 Termination. This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms, and
shall remain in full force and effect until the termination of the Issuer (such
date, the "Agreement Termination Date"). A Seller may cease to be a party to
this Agreement on a date selected by such Seller upon prior notice thereof to
Buyer and to S&P (such date, with respect to such Seller, being the "Seller
Termination Date").
Section 7.5 Survival. Except as otherwise expressly provided herein or in
any other Related Document, no termination or cancellation (regardless of cause
or procedure) of any agreement made by a Seller under this Agreement shall in
any way affect or impair the obligations, duties and liabilities of such Seller
or the rights of such Seller relating to any unpaid portion of any and all
obligations of such Seller to Buyer, due or not due, liquidated, contingent or
unliquidated or any transaction or event occurring prior to such termination, or
any transaction or event, the performance of which is required after the
Agreement Termination Date (or, if applicable, the Seller Termination Date
relating to such Seller). Except as otherwise expressly provided herein or in
any other Related Document, all undertakings, agreements, covenants, warranties
and representations of or binding upon a Seller, and all rights of such Seller
hereunder shall not terminate or expire, but rather shall survive any such
termination or cancellation and shall continue in full force and effect until
the date after the Agreement Termination Date (or, if applicable, the Seller
Termination Date relating to such Seller) when the Outstanding Balances of all
Transferred Receivables transferred hereunder by such Seller prior to such
Agreement Termination Date (or, if applicable, the Seller Termination Date
relating to such Seller) have been reduced to zero; provided, that the rights
and remedies pursuant to the provisions of Sections 2.5, 6.3(d), 7.3, 7.11 and
7.12 shall be continuing and shall survive any termination of this Agreement.
Section 7.6 Complete Agreement; Modification of Agreement. This Agreement
constitutes the complete agreement between the parties with respect to the
subject matter hereof, supersedes all prior agreements and understandings
relating to the subject matter hereof and thereof, and may not be modified,
altered or amended except by written agreement of the parties hereto; provided,
that if an amendment, modification or alteration affects one or more Sellers but
not all of the Sellers, only the affected Seller or affected Sellers shall be
required to sign such amendment, modification or alteration. The S&P Condition
shall be satisfied in the case of any amendment, modification or alteration of
this Agreement.
Section 7.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL
RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF
26
LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL
COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF
MANHATTAN IN NEW YORK CITY; PROVIDED FURTHER, THAT NOTHING IN THIS AGREEMENT
SHALL BE DEEMED OR OPERATE TO PRECLUDE BUYER FROM BRINGING SUIT OR TAKING OTHER
LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE RECEIVABLES OR ANY
SECURITY FOR THE OBLIGATIONS OF A SELLER ARISING HEREUNDER OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF BUYER. EACH PARTY HERETO SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY
SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY
MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF
AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL
SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR
SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS
DETERMINED IN ACCORDANCE WITH SECTION 7.1 AND THAT SERVICE SO MADE SHALL BE
DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR
THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID.
NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN
27
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 7.8 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement.
Section 7.9 Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
Section 7.10 Section Titles. The section titles and table of contents
contained in this Agreement are provided for ease of reference only and shall be
without substantive meaning or content of any kind whatsoever and are not a part
of the agreement between the parties hereto.
Section 7.11 No Setoff. A Seller's obligations under this Agreement shall
not be affected by any right of setoff, counterclaim, recoupment, defense or
other right such Seller might have against Buyer, all of which rights are hereby
expressly waived by such Seller.
Section 7.12 Further Assurances.
(a) Each Seller shall, at its sole cost and expense, upon request of Buyer,
promptly and duly authorize, execute and/or deliver, as applicable, any and all
further instruments and documents and take such further actions that Buyer may
reasonably request to carry out more effectively the provisions and purposes of
this Agreement or to obtain the full benefits of this Agreement and of the
rights and powers herein granted, including authorizing and filing any financing
or continuation statements under the UCC with respect to the ownership interest
of Buyer created by this Agreement. Each Seller hereby authorizes Buyer to file
any such financing or continuation statements without the signature of such
Seller to the extent permitted by applicable law. A carbon, photographic or
other reproduction of this Agreement or of any notice or financing statement
covering the Transferred Assets or any part thereof shall be sufficient as a
notice or financing statement where permitted by law. If any amount payable
under or in connection with any of the Transferred Assets is or shall become
evidenced by any instrument, such instrument, other than checks and notes
received in the ordinary course of business, shall be duly endorsed in a manner
satisfactory to Buyer immediately upon such Seller's receipt thereof and
promptly delivered to or at the direction of Buyer.
(b) If a Seller fails to perform any agreement or obligation under this
Section 7.12, Buyer may (but shall not be required to) itself perform, or cause
performance of, such agreement or obligation, and the reasonable expenses of
Buyer incurred in connection therewith shall be payable by such Seller upon
demand of Buyer.
Section 7.13 Accounting Changes. If any Accounting Changes occur and such
changes result in a change in the standards or terms used herein, then the
parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such Accounting Changes with the desired
result that the criteria for evaluating the financial condition of such Persons
and their Subsidiaries shall be the same after such Accounting Changes as if
such
28
Accounting Changes had not been made. If the parties hereto agree upon the
required amendments to this Agreement, then after appropriate amendments have
been executed and the underlying Accounting Change with respect thereto has been
implemented, any reference to GAAP contained herein shall, only to the extent of
such Accounting Change, refer to GAAP consistently applied after giving effect
to the implementation of such Accounting Change. If such parties cannot agree
upon the required amendments within thirty (30) days following the date of
implementation of any Accounting Change, then all financial statements delivered
and all standards and terms used herein shall be prepared, delivered and used
without regard to the underlying Accounting Change.
Section 7.14 No Indirect or Consequential Damages. NO PARTY TO THIS
AGREEMENT SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS AGREEMENT,
ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER
PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF ANY
TRANSACTION CONTEMPLATED HEREUNDER.
Section 7.15 TCFC and BAC. TCFC hereby releases and terminates any Lien in
favor of TCFC on any Transferred Assets relating to BAC (the "BAC Transferred
Assets"), including any Lien on the BAC Transferred Assets arising under the
Credit and Security Agreement, dated as of October 24, 2002, between BAC and
TCFC. TCFC hereby authorizes the filing of one or more UCC financing statement
amendments with respect to BAC reflecting such release and termination. The BAC
Transferred Assets shall not be subject to any servicing agreement between TCFC
and BAC, including the TCFC Services Agreement, dated as of October 24, 2002,
between BAC and TCFC.
[SIGNATURES FOLLOW]
29
IN WITNESS WHEREOF, each Seller and Buyer have caused this Receivables Sale
Agreement to be duly executed as of the day and year first above written.
GE COMMERCIAL DISTRIBUTION FINANCE
CORPORATION, as a Seller
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President &
Chief Financial Officer
S-1
TRANSAMERICA COMMERCIAL FINANCE
CORPORATION, as a Seller
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director & Treasurer
S-2
BRUNSWICK ACCEPTANCE COMPANY, LLC,
as a Seller
By: Brunswick Financial Services Corporation,
as a member
By: /s/ Xxxx X. Peak
------------------------------------
Name: Xxxx X. Peak
Title: Authorized Signatory
By: Transamerica Ventures, LLC,
as a member
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Authorized Signatory
S-3
CDF FUNDING, INC., as Buyer
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
S-4
SCHEDULE 1
LIST OF ACCOUNTS
The initial Account Schedule consists of a compact disk delivered to Buyer
and Indenture Trustee listing Accounts and related information as of July 31,
2004.
Sch. 1-1
SCHEDULE 6.1(a)(ii)
UCC INFORMATION
A. Transamerica Commercial Finance Corporation
1. Legal Name
Transamerica Commercial Finance Corporation
2. Jurisdiction of Organization
Delaware
3. Federal Employer Identification Number
00-0000000
4. Organizational Identification Number
2141782
B. GE Commercial Distribution Finance Corporation
1. Legal Name
GE Commercial Distribution Finance Corporation
2. Jurisdiction of Organization
Nevada
3. Federal Employer Identification Number
00-0000000
4. Organizational Identification Number
C1718-1969
Sch. 6.1(a)(ii)-1
C. Brunswick Acceptance Company, LLC
1. Legal Name
Brunswick Acceptance Company, LLC
2. Jurisdiction of Organization
Delaware
3. Federal Employer Identification Number
00-0000000
4. Organizational Identification Number
3582970
Sch. 6.1(a)(ii)-2
SCHEDULE 6.1(a)(viii)
PERFECTION REPRESENTATIONS AND WARRANTIES
1. General. This Agreement creates a valid and continuing ownership
interest in Buyer with respect to all of such Seller's right, title and interest
in, to and under the Transferred Assets which (a) is enforceable against
creditors of and purchasers from such Seller, as such enforceability may be
limited by applicable law, now or hereafter in effect, and by general principles
of equity (whether considered in a suit at law or in equity), and (b) will be
prior to all other Liens (other than Permitted Encumbrances) in such property.
2. Characterization. The Receivables constitute "accounts", "general
intangibles" or "chattel paper" within the meaning of UCC Section 9-102.
3. Creation. Immediately prior to its conveyance of the Transferred Assets
pursuant to this Agreement, such Seller owns and has good and marketable title
to such Transferred Assets free and clear of any Lien, claim or encumbrance of
any Person (other than Permitted Encumbrances).
4. Perfection. Such Seller has caused, or will have caused within ten (10)
days after the Closing Date or any applicable Addition Date, the filing of all
appropriate financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect Buyer's ownership of such
Transferred Assets. Except as contemplated by clause (l) of the definition of
"Eligible Receivable," such Seller has taken all steps necessary to perfect its
security interest against the related Dealer in the property securing the
related Receivables.
5. Priority. Other than the ownership interests transferred to Buyer
pursuant to this Agreement, such Seller has not pledged, assigned, sold, granted
a security interest in, or otherwise conveyed any of the Transferred Assets
except as permitted by this Agreement. Such Seller has not authorized the filing
of and is not aware of any financing statements against such Seller that include
a description of collateral covering the Transferred Assets other than any
financing statement (i) in favor of Buyer and its assignees, (ii) that has been
terminated (or, in the case of the BAC Transferred Assets referred to in Section
7.15, that will be amended within ten (10) days after the Closing Date in order
to reflect the release of security interest described in Section 7.15), or (iii)
that has been granted pursuant to the terms of the Related Documents. None of
the chattel paper that constitutes or evidences the Receivables has any marks or
notations indicating that they have been pledged, assigned or otherwise conveyed
to any Person other than Buyer. Such Seller is not aware of any judgment lien,
ERISA lien or tax lien filings against it.
6. Survival of Perfection Representations. Notwithstanding any other
provision of this Agreement or any other Related Document, the representations
contained in this Schedule 6.1(a)(viii) shall be continuing and remain in full
force and effect.
7. No Waiver. The parties to this Agreement: (i) shall not, without the
consent of the other parties, waive any of the representations and warranties in
this Schedule 6.1(a)(viii) (the "Perfection Representations"); (ii) shall
provide the other parties with prompt written notice
Sch. 6.1(a)(viii)-1
of any breach of the Perfection Representations; and (iii) shall not, without
the consent of S&P (if S&P is then rating any outstanding Series) waive a breach
of any of the Perfection Representations.
8. Seller to Maintain Perfection and Priority. Each Seller covenants that,
in order to evidence the interests of such Seller and Buyer under this
Agreement, such Seller shall take such action, or execute and deliver such
instruments (other than effecting a Filing (as defined below), unless such
Filing is effected in accordance with this paragraph) as may be necessary or
advisable (including such actions as are requested by Buyer) to maintain and
perfect, as a first priority interest, Buyer's ownership of the Transferred
Assets. Such Seller shall, from time to time and within the time limits
established by law, prepare and present to Buyer for Buyer to authorize (based
in reliance on the Opinion of Counsel hereinafter provided for in this
paragraph) such Seller to file, all financing statements, amendments,
continuations, financing statements in lieu of a continuation statement,
terminations, partial terminations, releases or partial releases, or any other
filings necessary or advisable to continue, maintain and perfect Buyer's
ownership of the Transferred Assets as a first-priority interest (each a
"Filing"). Such Seller shall present each such Filing to Buyer together with (x)
an Opinion of Counsel to the effect that such Filing (i) satisfies all
requirements and conditions to such Filing in this Agreement and (ii) satisfies
the requirements for a Filing of such type under the UCC in the applicable
jurisdiction, and (y) a form of authorization for Buyer's signature. Upon
receipt of such Opinion of Counsel and form of authorization, Buyer shall
promptly authorize in writing such Seller to, and such Seller shall, effect such
Filing under the UCC. Notwithstanding anything else in this Agreement to the
contrary, such Seller shall not have any authority to effect a Filing without
obtaining written authorization from Buyer in accordance with this paragraph.
9. Miscellaneous. All financing statements filed against such Seller in
favor of Buyer in connection herewith describing the Transferred Assets contain
a statement to the following effect: "A purchase of or security interest in any
collateral described in this financing statement will violate the rights of the
secured party."
Sch. 6.1(a)(viii)-2
EXHIBIT A
FORM OF ASSIGNMENT
(As required by Section 2.6(c) of the Agreement)
ASSIGNMENT No._______ OF RECEIVABLES IN ADDITIONAL ACCOUNTS (this "Assignment")
dated as of ____________, by and between [GE COMMERCIAL DISTRIBUTION FINANCE
CORPORATION] [TRANSAMERICA COMMERCIAL FINANCE CORPORATION] [BRUNSWICK ACCEPTANCE
COMPANY, LLC], as seller ("Seller") and CDF FUNDING, INC., as buyer ("Buyer"),
pursuant to the Agreement referred to below.
WITNESSETH:
WHEREAS, Seller and Buyer are parties to the Receivables Sale Agreement,
dated as of August 12, 2004 (as it may be amended, restated, supplemented or
otherwise modified from time to time, the "Agreement"); and
WHEREAS, pursuant to the Agreement, Seller wishes to designate Additional
Accounts to be included as Accounts and to convey the Transferred Receivables in
such Additional Accounts that have been designated "Additional Accounts"
pursuant to the Agreement, whether now existing or hereafter created, to Buyer
(as each such term is defined in the Agreement); and
WHEREAS, Buyer is willing to accept such designation and conveyance subject
to the terms and conditions hereof;
NOW, THEREFORE, Seller and Buyer hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein shall
have such defined meanings when used herein, unless otherwise defined herein.
"Addition Date" means, with respect to the Additional Accounts
designated hereby, [_________________], 20[__].
"Addition Cut-Off Date" means, with respect to Additional Accounts
designated hereby, [________], 20[__].
"Transferred Property" is defined in Section 3(a).
2. Designation of Additional Accounts. The Accounts listed on Schedule 1 to
this Assignment have been designated "Additional Accounts" pursuant to the
Agreement. Schedule 1 to this Assignment, as of the Addition Date, shall
supplement Schedule 1 to the Agreement as required by Section 2.1(b) of the
Agreement.
3. Conveyance of Receivables.
(a) Seller does hereby transfer, assign, set over and otherwise
convey, without recourse except as set forth in this Assignment and the
Agreement, to Buyer, all its right, title
Xxx. X-0
and interest in, to and under the following (the "Transferred Property"): the
Receivables in such Additional Accounts existing at the close of business on the
Addition Date and thereafter created from time to time until the Agreement
Termination Date (or, if applicable, the Seller Termination Date with respect to
such Seller), the Collateral Security and Collections with respect thereto and
related Recoveries, together with all monies due or to become due and all
amounts received or receivable with respect thereto and Insurance Proceeds
relating thereto and all proceeds of the foregoing. The foregoing does not
constitute and is not intended to result in the creation or assumption by Buyer
of any obligation of any Seller or any other Person in connection with the
Accounts or the Transferred Receivables or under any agreement or instrument
relating thereto, including any obligation under any Financing Agreement, any
Floorplan Agreement, or any Participation Agreement, or any obligation to any
Dealer or any Manufacturer.
(b) Seller agrees to record and file, at its own expense, financing
statements (and continuation statements when applicable) with respect to the
Receivables in Additional Accounts existing on the Addition Date and thereafter
created meeting the requirements of applicable state law in such manner and in
such jurisdictions as are necessary to perfect, and maintain perfection of,
Buyer's ownership of such Receivables, and to deliver a file-stamped copy of
each such financing statement or other evidence of such filing to Buyer within
ten (10) days of the Addition Date. Buyer shall be under no obligation
whatsoever to file such financing or continuation statements or to make any
other filing under the UCC in connection with such sale and assignment.
(c) In connection with such assignment, Seller further agrees, at its
own expense, on or prior to the date of this Assignment, to indicate and cause
Master Servicer to indicate in the appropriate computer files that Receivables
created in connection with the Additional Accounts and designated hereby have
been conveyed to Buyer pursuant to the Agreement and this Assignment.
(d) The parties hereto intend that the transfer of the Transferred
Property by Seller to Buyer shall constitute a sale by Seller to Buyer and not a
loan by Buyer to Seller secured by the Transferred Property. If, contrary to the
intent of the parties hereto, a court of competent jurisdiction determines that
any transaction provided for herein constitutes a loan and not a sale of the
Transferred Property, then this Assignment shall constitute a security agreement
under applicable law and Seller shall be deemed to have granted, and Seller
hereby grants, to Buyer a security interest in and to all of Seller's right,
title and interest in, to and under the Transferred Property.
4. Acceptance by Buyer. Buyer hereby acknowledges its acceptance of all
right, title and interest to the property, existing on the Addition Date and
thereafter created, conveyed to Buyer pursuant to Section 3(a) of this
Assignment. Buyer further acknowledges that, prior to or simultaneously with the
execution and delivery of this Assignment, Seller delivered to it the Account
Schedule described in Section 2 of this Assignment.
5. Representations and Warranties of Seller. Seller hereby represents and
warrants to Buyer as of the Addition Date:
Exh. A-2
(a) This Assignment constitutes a legal, valid and binding obligation
of Seller enforceable against Seller in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity);
(b) each of the Transferred Receivables satisfies the criteria for an
Eligible Receivable as of the Addition Cut-Off Date;
(c) each Additional Account is, as of the Addition Cut-Off Date, an
Eligible Account;
(d) no selection procedures believed by Seller to be materially
adverse to the interests of Buyer or any of its creditors were utilized in
selecting the Additional Accounts from the available Eligible Accounts;
(e) as of the Addition Date, Seller is solvent;
(f) the Account Schedule delivered pursuant to this Assignment is an
accurate and complete listing in all material respects of all the Accounts as of
the related Addition Cut-Off Date, and the information contained therein with
respect to the identity of such Accounts and the Transferred Receivables
existing in such Accounts, is true and correct in all material respects as of
the Addition Cut-Off Date;
(g) the Agreement and this Assignment transfer ownership to Buyer of
the Transferred Property, and upon filing of the financing statements described
herein and, in the case of Transferred Receivables thereafter created, upon the
creation thereof, such ownership will be perfected and prior to all Liens (other
than Permitted Encumbrances) in the Transferred Property;
(h) the Transferred Receivables constitute "accounts", "chattel paper"
or "general intangibles" within the meaning of UCC Section 9-102;
(i) immediately prior to the conveyance of the Receivables pursuant to
this Agreement, Seller owns and has good and marketable title to the Receivables
free and clear of any Lien, claim or encumbrance of any Person (other than
Permitted Encumbrances); and
(j) subject to Permitted Encumbrances, other than the transfer and
assignment to Buyer pursuant to this Assignment, Seller had not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed any of the
Transferred Receivables. Seller has not authorized the filing of and is not
aware of any UCC financing statements against Seller that included a description
of collateral covering the Transferred Receivables.
6. Amendment of the Agreement. The Agreement is hereby amended to provide
that all references therein to "this Agreement" and "herein" shall be deemed
from and after the Addition Date to be a dual reference to the Agreement as
supplemented by this Assignment. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and
Exh. A-3
conditions of the Agreement shall remain unamended and shall continue to be, and
shall remain, in full force and effect in accordance with its terms.
7. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
8. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS ASSIGNMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL
RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS
THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS ASSIGNMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO
THIS ASSIGNMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS
FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH
OF MANHATTAN IN NEW YORK CITY. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE
TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH
PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON
LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED
IN ACCORDANCE WITH SECTION 7.1 OF THE AGREEMENT AND THAT SERVICE SO MADE SHALL
BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR
THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID.
NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
Exh. A-4
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS ASSIGNMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Exh. A-5
IN WITNESS WHEREOF, the undersigned have caused this Assignment to be duly
executed and delivered on the day and year first above written.
[GE COMMERCIAL DISTRIBUTION FINANCE
CORPORATION]
[TRANSAMERICA COMMERCIAL FINANCE
CORPORATION]
[BRUNSWICK ACCEPTANCE COMPANY, LLC],
as Seller
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Exh. A-6
CDF FUNDING, INC., as Buyer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Exh. A-7
Schedule 1
to Assignment
ADDITIONAL ACCOUNTS
Exh. A-8
EXHIBIT B
FORM OF REASSIGNMENT
(As required by Section 2.7 of the Agreement)
REASSIGNMENT No. _______ ("Reassignment") dated as of _________, by and
between [GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION] [TRANSAMERICA
COMMERCIAL FINANCE CORPORATION] [BRUNSWICK ACCEPTANCE COMPANY, LLC], as seller
(the "Seller"), and CDF FUNDING, INC., as buyer (the "Buyer"), pursuant to the
Agreement referred to below.
WITNESSETH:
WHEREAS Seller and Buyer are parties to the Receivables Sale Agreement,
dated as of August 12, 2004 (as it may be amended, restated, supplemented or
otherwise modified from time to time, the "Agreement");
WHEREAS pursuant to the Agreement, the parties hereto desire to remove
certain Accounts from the Account Schedule [insert if such Accounts were not
Eligible Accounts at the time such Accounts were originally designated as
Accounts; and the parties hereto desire that Buyer reconvey to Seller the
Transferred Receivables of such Removed Accounts, whether now existing or
hereafter created];
NOW, THEREFORE, Seller and Buyer hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein shall
have such defined meanings when used herein, unless otherwise defined herein.
"Removal Date" means, with respect to the Removed Accounts designated
hereby, ___________, ____.
"Removed Accounts" means the Accounts listed on Schedule 2 to this
Reassignment.
2. Designation of Removed Accounts. Schedule 1 to this Reassignment, as of
the Removal Date, shall not include the Removed Accounts and shall supplement
Schedule 1 to the Agreement as required by Section 2.1(b) of the Agreement.
Schedule 2 to this Reassignment lists the Removed Accounts covered by this
Reassignment.
3. [This Section should be used with respect to Accounts that were not
Eligible Accounts at the time such Accounts were originally designated as
Accounts: Conveyance of Transferred Receivables. (a) Buyer does hereby transfer,
assign, set over and otherwise convey to Seller, without representation,
warranty or recourse, on and after the Removal Date, all right, title and
interest of Buyer in, to and under the Transferred Receivables existing at the
close of business on the Removal Date, and thereafter created from time to time,
in the Removed Accounts designated hereby, the Collateral Security and
Collections and Recoveries with respect
Exhibit B-1
thereto, together with all monies due or to become due and all amounts received
or receivable with respect thereto and all Insurance Proceeds related thereto
and all proceeds of the foregoing.
(b) In connection with such transfer, Buyer agrees to execute and deliver
to Seller on or prior to the date this Reassignment is delivered, applicable
termination statements prepared by Seller with respect to the Transferred
Receivables existing at the close of business on the Removal Date, and
thereafter created from time to time, in the Removed Accounts reassigned hereby
and the proceeds thereof evidencing the release by Buyer of its interest in such
Transferred Receivables, and meeting the requirements of applicable state law,
in such manner and such jurisdictions as are necessary to terminate such
interest.]
4. Representations and Warranties of Seller. Seller hereby represents and
warrants to Buyer as of the Removal Date:
(a) Legal Valid and Binding Obligation. This Reassignment constitutes a
legal, valid and binding obligation of Seller enforceable against Seller in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors' rights
in general and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity); and
(b) List of Accounts and Removed Accounts. Schedule 1 attached hereto is an
accurate and complete listing in all material respects of all the Accounts
(other than the Removed Accounts covered by this Reassignment) as of the Removal
Date. Schedule 2 attached hereto is an accurate and complete listing in all
material respects as of the Removal Date of the Removed Accounts being removed
pursuant to this Reassignment.
5. Amendment of the Agreement. The Agreement is hereby amended to provide
that all references therein to "this Agreement" and "herein" shall be deemed
from and after the Removal Date to be a dual reference to the Agreement as
supplemented by this Reassignment. Except as expressly amended hereby, all of
the representations, warranties, terms and covenants and conditions of the
Agreement shall remain unamended and shall continue to be and shall remain in
full force and effect in accordance with its terms.
6. Counterparts. This Reassignment may be executed in two or more
counterparts, and by different parties on separate counterparts), each of which
shall be an original, but all of which shall constitute one and the same
instrument.
7. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(A) THIS REASSIGNMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL
RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER
Exhibit B-2
CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES
OF AMERICA.
(B) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL
COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS REASSIGNMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO
THIS REASSIGNMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE
BOROUGH OF MANHATTAN IN NEW YORK CITY. EACH PARTY HERETO SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED
IN ACCORDANCE WITH SECTION 7.1 OF THE AGREEMENT AND THAT SERVICE SO MADE SHALL
BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR
THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID.
NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(C) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS REASSIGNMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Exhibit B-3
IN WITNESS WHEREOF, the undersigned have caused this Reassignment to be
duly executed and delivered on the day and year first above written.
[GE COMMERCIAL DISTRIBUTION FINANCE
CORPORATION]
[TRANSAMERICA COMMERCIAL FINANCE
CORPORATION]
[BRUNSWICK ACCEPTANCE COMPANY, LLC],
as Seller
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Exhibit B-4
CDF FUNDING, INC., as Buyer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Exhibit B-5
Schedule 1
to Reassignment
UPDATED ACCOUNT SCHEDULE
Exhibit B-6
Schedule 2
to Reassignment
REMOVED ACCOUNTS
Exhibit B-7
EXHIBIT C
FORM OF OPINION OF COUNSEL WITH RESPECT
TO ADDITION OF ADDITIONAL ACCOUNTS
(Provisions to be included in
Opinion of Counsel to be
delivered pursuant to
Section 2.6(c)(ii))
The opinions set forth below may be subject to appropriate qualifications,
assumptions, limitations and exceptions.
1. The provisions of the Receivables Sale Agreement are effective under the
UCC to create in favor of Buyer a security interest in Seller's rights in the
Transferred Receivables in such Additional Accounts and the identifiable
proceeds thereof (the "Specified Assets").
2. The security interest in the Specified Assets created by the Receivables
Sale Agreement will be perfected by the filing of the Financing Statement as
described and defined in such opinion.
Exhibit C-1
