Exhibit 10.3
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DEUTSCHE FLOORPLAN RECEIVABLES, L.P.,
as Seller,
and
CDF FINANCING, L.L.C.,
as Buyer
RECEIVABLES CONTRIBUTION AND SALE AGREEMENT
Dated as of December 31, 2002
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TABLE OF CONTENTS
PAGE
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ARTICLE I
Definitions
Section 1.1 Definitions........................................................................ 1
Section 1.2 Other Definitional Provisions...................................................... 2
ARTICLE II
Conveyance of Receivables
Section 2.1 Conveyance of Receivables.......................................................... 2
Section 2.2 Representations and Warranties of the Seller Relating to the Seller and
the Agreement...................................................................... 4
Section 2.3 Representations and Warranties of the Seller Relating to the Receivables........... 6
Section 2.4 Addition of Accounts............................................................... 7
Section 2.5 Covenants of the Seller............................................................ 9
Section 2.6 Removal of Eligible Accounts....................................................... 10
Section 2.7 Removal of Ineligible Accounts..................................................... 12
Section 2.8 Sale of Ineligible Receivables..................................................... 13
ARTICLE III
Administration and Servicing of Receivables
Section 3.1 The Servicer....................................................................... 13
Section 3.2 Servicing Compensation............................................................. 13
ARTICLE IV
Rights of Certificateholders and
Allocation and Application of Collections
Section 4.1 Allocations and Applications of Collections and Other Funds........................ 13
ARTICLE V
Other Matters Relating to the Seller
Section 5.1 Merger or Consolidation of, or Assumption of,
the Obligations of the Seller...................................................... 13
Section 5.2 Seller's Indemnification of the Buyer.............................................. 14
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TABLE OF CONTENTS
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ARTICLE VI
Termination.......................................................................................... 15
ARTICLE VII
Miscellaneous Provisions
Section 7.1 Amendment.......................................................................... 15
Section 7.2 Protection of Right, Title and Interest to Receivables............................. 16
Section 7.3 Limited Recourse................................................................... 16
Section 7.4 No Petition........................................................................ 17
Section 7.5 GOVERNING LAW...................................................................... 17
Section 7.6 Notices............................................................................ 17
Section 7.7 Severability of Provisions......................................................... 17
Section 7.8 Assignment......................................................................... 17
Section 7.9 Further Assurances................................................................. 17
Section 7.10 No Waiver; Cumulative Remedies..................................................... 18
Section 7.11 Counterparts....................................................................... 18
Section 7.12 Third-Party Beneficiaries.......................................................... 18
Section 7.13 Merger and Integration............................................................. 18
Section 7.14 Headings........................................................................... 18
Section 7.15 Submission to Jurisdiction......................................................... 18
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EXHIBITS
Exhibit A Form of Assignment of Receivables in Additional Accounts
Exhibit B Form of Reassignment of Receivables in Removed Accounts
Schedule 1 List of Accounts
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RECEIVABLES CONTRIBUTION AND SALE AGREEMENT, dated as of December 31,
2002, between DEUTSCHE FLOORPLAN RECEIVABLES, L.P., a Delaware limited
partnership (the "Limited Partnership"), as Seller ("Seller"), and CDF
FINANCING, L.L.C., a Delaware limited liability company ("LLC"), as Buyer
("Buyer").
W I T N E S S E T H:
WHEREAS, the Seller is party to the Receivables Contribution and Sale
Agreement dated as of December 1, 1993, amended and restated as of March 1,
1994, amended as of January 24, 1996, and amended and restated as of October 1,
1996 (as the same may from time to time be amended, supplemented or otherwise
modified, the "First Tier Agreement"), with GE Commercial Distribution Finance
Corporation, formally known as Deutsche Financial Services Corporation, a Nevada
corporation ("CDF");
WHEREAS, the First Tier Agreement provides for the Seller to acquire
Receivables and related assets and rights from CDF from time to time;
WHEREAS, the Seller wish to sell or contribute such Receivables and
related assets and rights from time to time to the Buyer;
WHEREAS, the Seller is party to the Amended and Restated Pooling and
Servicing Agreement dated as of April 1, 2000 (as the same may from time to time
be amended, supplemented or otherwise modified, the "Pooling and Servicing
Agreement"), among the Seller, as seller, CDF, as servicer, and Wilmington Trust
Company, as successor to The Chase Manhattan Bank, as trustee (the "Trustee");
WHEREAS, the Seller wishes to contribute to the Buyer all of the
Seller's right, title and interest in, to and under the Pooling and Servicing
Agreement;
WHEREAS, in connection herewith, the Pooling and Servicing Agreement
will be amended in order to, among other things, replace the Limited Partnership
as a party thereto with the Buyer.
NOW THEREFORE, the parties hereto agree, effective as of December 31,
2002 (the "Effective Date"), as follows:
ARTICLE I
Definitions
Section 1.1 Definitions. Capitalized terms defined in the Pooling and Servicing
Agreement and used but not otherwise defined herein shall have the meanings set
forth in the Pooling and Servicing Agreement. The rules of construction in
Sections 1.2 and 1.3 of the Pooling and Servicing Agreement shall be applied to
this Agreement. In addition, the term "Agreement" means this Receivables
Contribution and Sale Agreement, as the same may from time to time be amended,
supplemented or otherwise modified.
Section 1.2 Other Definitional Provisions. (a) The words "hereof", "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement; Article, Section, Schedule, and Exhibit references are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; and the term "including" shall mean "including without limitation".
(b) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
ARTICLE II
Conveyance of Receivables
Section 2.1 Conveyance of Receivables. By execution of this Agreement, the
Seller does hereby sell, transfer, assign, set over and otherwise convey,
without recourse (except as expressly provided herein), to the Buyer on the
first Effective Date, in the case of Accounts existing as of the Effective Date
(the "Existing Accounts"), and on the applicable Addition Date, in the case of
Additional Accounts, all of its right, title and interest in, to and under the
Receivables in each Account and all Collateral Security with respect thereto
owned by the Seller at the close of business on the Effective Date, in the case
of the Existing Accounts, and on the applicable Additional Cut-Off Date, in the
case of Additional Accounts, and all monies due or to become due and all amounts
received with respect thereto and all proceeds (including "proceeds" as defined
in the UCC and Recoveries) thereof and all of the Seller's rights, remedies,
powers and privileges with respect to such Receivables under the related
Floorplan Agreements. Subject to Article VI, as of each Business Day prior to
the earlier of (x) the occurrence of an Early Amortization Event specified in
Section 9.1(b), (c), (d), or (e) of the Pooling and Servicing Agreement and (y)
the Trust Termination Date, on which Receivables are created in the Accounts (a
"Transfer Date"), the Seller does hereby sell, transfer, assign, set over and
otherwise convey, without recourse (except as expressly provided herein), to the
Buyer, all of its right, title and interest in, to and under the Receivables in
each Account (other than any Receivables created in any Removed Account from and
after the applicable Removal Date) and all Collateral Security with respect
thereto owned by the Seller at the close of business on such Transfer Date and
not theretofore conveyed to the Buyer, all monies due or to become due and all
amounts received with respect thereto and all proceeds (including "proceeds" as
defined in the UCC and Recoveries) thereof and all of the Seller's rights,
remedies, powers and privileges with respect to such Receivables under the
related Floorplan Agreements. The foregoing sale, transfer, assignment, set-over
and conveyance and any subsequent sales, transfers, assignments, set-overs and
conveyances do not constitute, and are not intended to result in, the creation
or an assumption by the Buyer of any obligation of the Servicer, the Seller or
any other Person in connection with the Accounts, the Receivables or under any
agreement or instrument relating thereto, including any obligation under the
Financing Agreements, the Floorplan Agreements and any Participation Agreement
and any other obligation to any Dealer or Manufacturer.
On the Effective Date, the Seller hereby contributes as capital to the
Buyer (i) Receivables in the amount of three billion two hundred sixty-eight
million six hundred eighty-six
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thousand five hundred seventy-six dollars ($3,268,686,576), together with the
related Collateral Security and Floorplan Rights (defined below) and (ii) all of
the Seller's right, title and interest in, to and under the Pooling and
Servicing Agreement. Subject to Article VI, the purchase price for the
Receivables sold by the Seller to the Buyer on each Addition Date and on each
Transfer Date thereafter shall be a price agreed to by the Buyer and the Seller
at the time of acquisition by the Buyer, which price shall not, in the opinion
of the Buyer, be materially less favorable to the Buyer than prices for
transactions of a generally similar character at the time of the acquisition
taking into account the quality of such Receivables and other pertinent factors,
including, without limitation, prevailing interest rates; provided that such
consideration shall in any event not be less than reasonably equivalent value
therefor.
At its option from time to time, the Seller may convey as a capital
contribution to the Buyer Receivables together with the related Collateral
Security and Floorplan Rights (or interests in any of the foregoing).
In connection with such contributions and sales, the Seller agrees (i)
to record and file, at its own expense, a financing statement on form UCC-1 (and
continuation statements when applicable) naming the Seller as "debtor" and the
Buyer as "secured party" thereon with respect to the Receivables now existing
and hereafter created for the sale of chattel paper, accounts or general
intangibles (as defined in the UCC) meeting the requirements of applicable state
law in such manner and in such jurisdictions as are necessary to perfect the
sale and assignment of the Receivables, the Collateral Security and all of the
Seller's rights, remedies, powers and privileges with respect to such
Receivables under the related Floorplan Agreements (the "Floorplan Rights") to
the Buyer, and to perfect the contribution of any items contemplated by this
Agreement, and (ii) to deliver a file-stamped copy of such financing statements
or other evidence of such filing to the Buyer promptly following such filing. In
addition, the Seller shall cause to be timely filed in the appropriate filing
office any UCC-1 financing statement and continuation statement necessary to
perfect any sale of Receivables to the Seller. The Buyer shall be under no
obligation whatsoever to file such financing statement, or a continuation
statement to such financing statement, or to make any other filing under the UCC
in connection with such contribution and sales. The parties hereto intend that
the transfers of Receivables and other items effected by this Agreement be sales
(or, in the case of contributions, true contributions).
In connection with such contribution and sales, the Seller further
agrees, at its own expense, on or prior to the Effective Date, in the case of
Existing Accounts, the applicable Addition Date, in the case of Additional
Accounts, and the applicable Removal Date, in the case of Removed Accounts, (a)
to indicate in its books and records, which may include computer files, that the
Receivables created in connection with the Accounts (other than Removed
Accounts) have been sold, and the Collateral Security and the Floorplan Rights
assigned, to the Buyer pursuant to this Agreement and sold to the Trust pursuant
to the Pooling and Servicing Agreement for the benefit of the Certificateholders
and the other Beneficiaries and (b) to deliver to the Buyer a computer file or
microfiche or written list containing a true and complete list of all such
Accounts (other than Removed Accounts) specifying for each such Account, as of
the Effective Date, in the case of Existing Accounts, and the applicable
Additional Cut-Off Date, in the case of Additional Accounts, (i) its account
number and (ii) the aggregate amount of Principal Receivables in such Account.
Such file or list, as supplemented from time to time to
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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.
In the event that such contributions, sales and assignments are deemed
to constitute a pledge of security for a loan, it is the intent of this
Agreement that the Seller shall be deemed to have granted to the Buyer a first
priority perfected security interest in all of the Seller's right, title and
interest to and under (i) the Receivables, the Collateral Security and all
proceeds thereof and the Floorplan Agreements and (ii) the Pooling and Servicing
Agreement, and that this Agreement shall constitute a security agreement under
applicable law.
Section 2.2 Representations and Warranties of the Seller Relating to
the Seller and the Agreement. The Seller hereby represents and warrants to the
Buyer, as to itself and the Receivables being transferred and sold by it
hereunder, as of the Effective Date and as of each Closing Date that:
(a) Organization and Good Standing. The Seller is a limited
partnership duly organized and validly existing and in good standing
under the laws of the state of its organization and has, in all
material respects, full partnership power, authority and legal right to
own its properties and conduct its business as such properties are
presently owned and such business is presently conducted, and to
execute, deliver and perform its obligations under this Agreement.
(b) Due Qualification. The Seller is duly qualified to do business
and, where necessary, is in good standing as a foreign limited
partnership (or is exempt from such requirement) and has obtained all
necessary licenses and approvals in each jurisdiction in which the
conduct of its business requires such qualification except where the
failure to so qualify or obtain licenses or approvals would not have a
material adverse effect on its ability to perform its obligations
hereunder.
(c) Due Authorization. The execution and delivery of this
Agreement and the consummation of the transactions provided for or
contemplated by this Agreement have been duly authorized by the Seller
by all necessary limited partnership action on the part of the Seller
and are within its limited partnership powers.
(d) No Conflict. The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof and thereof, will not conflict with,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of
trust, or other instrument to which the Seller is a party or by which
it or its properties are bound.
(e) No Violation. The execution and delivery of this Agreement,
the performance of the transactions contemplated by this Agreement and
the fulfillment of the terms hereof and thereof applicable to the
Seller, will not conflict with or violate any material Requirements of
Law applicable to the Seller or conflict with, violate, result in any
breach of any of the material terms and provisions of, or constitute
(with or without
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notice or lapse of time or both) a material default under any
indenture, contract, agreement, mortgage, deed of trust, or other
instrument to which the Seller is a party or by which the Seller is
bound.
(f) No Proceedings. There are no proceedings or, to the best
knowledge of the Seller, investigations, pending or threatened against
the 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
the Seller, would materially and adversely affect the performance by
the Seller of its obligations under this Agreement, (iv) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement or (v) seeking to affect
adversely the income tax attributes of the Trust under the United
States federal or any state income, single business or franchise tax
systems.
(g) All Consents Required. All appraisals, authorizations,
consents, orders, approvals or other actions of any Person or of any
governmental body or official required in connection with the execution
and delivery of this Agreement, the performance of the transactions
contemplated by this Agreement, and the fulfillment of the terms hereof
or thereof, have been obtained.
(h) Enforceability. This Agreement constitutes a legal, valid and
binding obligation of the Seller enforceable against the 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).
(i) Record of Accounts. As of the Effective Date, in the case of
the Existing Accounts, as of the applicable Addition Date, in the case
of the Additional Accounts, and, as of the applicable Removal Date, in
the case of Removed Accounts, Schedule 1 to this Agreement is an
accurate and complete listing in all material respects of all the
Accounts as of the Effective Date, the applicable Additional Cut-Off
Date or the applicable Removal Date, as the case may be, and the
information contained therein with respect to the identity of such
Accounts and the Receivables existing thereunder is true and correct in
all material respects as of the Effective Date, such applicable
Additional Cut-Off Date or such Removal Date, as the case may be.
(j) Valid Transfer. This Agreement or, in the case of Additional
Accounts, the related Assignment constitutes a valid sale, transfer and
assignment to the Buyer of all right, title and interest of the Seller
in the Receivables and the Collateral Security and the proceeds
thereof. Upon the filing of the financing statements described in
Section 2.1 with the Secretary of State of the State of Nevada and, in
the case of the Receivables hereafter created and the proceeds thereof,
upon the creation thereof, the Buyer shall have a first priority
perfected ownership interest in such property. Except as otherwise
provided in the Pooling and Servicing Agreement, neither the Seller nor
any Person claiming through or under the Seller has any claim to or
interest in the Trust Assets.
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The representations and warranties set forth in this Section 2.2 shall
survive the transfer and assignment of the Receivables to the Buyer. Upon
discovery by a Seller or the Buyer of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other parties.
In the event of any breach of any of the representations and warranties
set forth in this Section 2.2 and if, in connection therewith, the Buyer shall
be obligated to purchase the Certificateholders' Interest pursuant to Section
2.3 of the Pooling and Servicing Agreement, the Seller shall repurchase the
Receivables, the Collateral Security and Floorplan Rights conveyed by it and
shall pay to the Buyer on the Business Day preceding the Distribution Date on
which such purchase of the Certificateholders' Interest is to be made an amount
equal to the purchase price for the Certificateholders' Interest as specified in
the Pooling and Servicing Agreement. The obligation of the Seller to purchase
the Receivables, the Collateral Security and Floorplan Rights pursuant to this
Section 2.2 shall constitute the sole remedy against the Seller respecting an
event of the type specified in the first sentence of this paragraph available to
the Buyer and to the Investor Certificateholders (or the Trustee on behalf of
the Investor Certificateholders).
Section 2.3 Representations and Warranties of the Seller Relating
to the Receivables.
(a) Representations and Warranties. The Seller hereby represents and
warrants to the Buyer, with respect to the Receivables conveyed by the Seller,
that:
(i) Each Receivable and all Collateral Security existing on the
Effective Date or, in the case of Additional Accounts, on the
applicable Addition Date, and on each Transfer Date, has been conveyed
to the Buyer free and clear of any Lien.
(ii) With respect to each Receivable and all Collateral Security
existing on the Effective Date or, in the case of Additional Accounts,
on the applicable Addition Date, and on each Transfer Date, all
consents, licenses, approvals or authorizations of or registrations or
declarations with any Governmental Authority required to be obtained,
effected or given by the Seller in connection with the conveyance of
such Receivable or Collateral Security to the Buyer have been duly
obtained, effected or given and are in full force and effect.
(iii) On the Effective Date, each Existing Account is an Eligible
Account and, in the case of Additional Accounts, on the applicable
Additional Cut-Off Date, each such Additional Account is an Eligible
Account.
(iv) On the Effective Date, in the case of the Existing Accounts,
and, in the case of the Additional Accounts, on the applicable
Additional Cut-Off Date, and on each Transfer Date, each Receivable
conveyed to the Buyer on such date is an Eligible Receivable or, if
such Receivable is not an Eligible Receivable, such Receivable is
conveyed to the Buyer in accordance with Section 2.8.
(v) Each Participation Agreement, if any, relating to Receivables
conveyed by the Seller permits the transfer of such Receivables to the
Buyer and the Trust and provides that the undivided interest of such
participant is pari passu in all respects (other than non-subordinated
interest strips and fees) with the remaining undivided interest in
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the related Receivables. If such Participation Agreement was created
after December 1, 1993, such Participation Agreement states that the
related undivided interest of CDF may be transferred to a
securitization vehicle and contains an agreement by the participant
that such participant shall have no rights against the securitization
vehicle or any successor servicer for such securitization vehicle,
other than in connection with funds allocable to the participant that
have been improperly withheld by the securitization vehicle.
(b) Notice of Breach. The representations and warranties set forth in
this Section 2.3 shall survive the transfer and assignment of the Receivables to
the Buyer. Upon discovery by the Seller or the Buyer of a breach of any of the
representations and warranties set forth in this Section 2.3, the party
discovering such breach shall give prompt written notice to the other parties.
(c) Repurchase. In the event any representation or warranty under
Section 2.3(a) is not true and correct as of the date specified therein with
respect to any Receivable or Account and the Buyer is, in connection therewith,
required to purchase such Receivable or all Receivables in such Account pursuant
to Section 2.4(c) of the Pooling and Servicing Agreement, then, within 30 days
(or such longer period as may be agreed to by the Buyer) of the earlier to occur
of the discovery of any such event by the Seller or the Buyer, or receipt by the
Seller or the Buyer of written notice of any such event given by the Trustee or
any Enhancement Providers, the Seller shall repurchase the Receivable or
Receivables, if any, of which the Buyer is required to accept reassignment
pursuant to the Pooling and Servicing Agreement on the Business Day preceding
the Determination Date on which such reassignment is to occur.
The Seller shall purchase each such Receivable by making a payment to
the Buyer in immediately available funds on the Business Day preceding the
Distribution Date on which such reassignment is to occur in an amount equal to
the Purchase Price for such Receivable. Upon payment of the Purchase Price, the
Buyer shall automatically and without further action be deemed to sell,
transfer, assign, set over and otherwise convey to the Seller, without recourse,
representation or warranty, all the right, title and interest of the Buyer in
and to such Receivable, all Collateral Security, the related Floorplan Rights
and all monies due or to become due with respect thereto and all proceeds
thereof. The Buyer shall execute such documents and instruments of transfer or
assignment and take such other actions as shall reasonably be requested by the
Seller to effect the conveyance of such Receivables pursuant to this Section.
The obligation of the Seller to repurchase any such Receivable shall constitute
the sole remedy respecting the event giving rise to such obligation available to
the Buyer and to the Certificateholders (or the Trustee on behalf of
Certificateholders).
Section 2.4 Addition of Accounts. (a) The Seller may from time to time
offer to voluntarily designate additional Eligible Accounts to be included as
Accounts, subject to the conditions specified in paragraph (b) below. If any
such offer is accepted by the Buyer, Receivables and Collateral Security, if
any, from such Additional Accounts shall be sold to the Buyer (or contributed to
the Buyer in accordance with Section 2.1) effective on a date (the "Addition
Date") specified in a written notice provided by the Seller (or the Servicer on
its behalf) to the Buyer and any Enhancement Providers specifying the Additional
Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition
Notice") on or before the fifth Business Day but not more than the 30th day
prior to the related Addition Date or, if the
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Automatic Addition Condition is satisfied, on the Determination Date following
the Collection Period in which such Addition Dates occur (the "Notice Date"). An
Addition Notice may relate to one or more Accounts on one or more Addition
Dates.
(b) The Seller shall be permitted to convey to the Buyer the
Receivables and all Collateral Security, if any, related thereto in any
Additional Accounts designated by the Seller as such pursuant to Section 2.4(a)
only upon satisfaction of each of the following conditions on or prior to the
related Addition Date (except for the condition in clause (vii), if applicable,
which shall be satisfied on or before the tenth Business Day after such Notice
Date):
(i) The Seller shall provide the Buyer and any Enhancement
Providers with a timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) The Seller shall have delivered to the Buyer a duly executed
written assignment (including an acceptance by the Buyer) covering the
Receivables specified in the Addition Notice in substantially the form
of Exhibit A (the "Assignment") and the computer file or microfiche or
written list required to be delivered pursuant to Section 2.1.
(iv) The Seller shall have delivered to the Buyer for deposit in
the Collection Account all Collections with respect to such Additional
Accounts since the Additional Cut-Off Date.
(v) (A) No selection procedures believed by the Seller to be
adverse to the interests of the Buyer or the Beneficiaries were used in
selecting such Additional Accounts; (B) the list of Additional Accounts
delivered pursuant to clause (iii) above is true and correct in all
material respects as of the Additional Cut-Off Date and (C) as of each
of the Notice Date and the Addition Date, neither the Seller, the Buyer
nor the Servicer are insolvent nor will have been made insolvent by
such transfer nor are aware of any pending insolvency.
(vi) If the Automatic Addition Condition is not satisfied with
respect to such addition, the Rating Agency Condition shall have been
satisfied with respect to such addition.
(vii) If (A) one or more of the Additional Accounts specified in
such Addition Notice will contain Receivables secured by a security
interest in a type of Product that has not been previously financed in
the Floorplan Business or (B) one or more of the Additional Accounts is
supported by a Floorplan Agreement with a Manufacturer that, as of the
related Addition Date, is not an Existing Manufacturer, then, whether
or not the Automatic Condition is satisfied, the Rating Agency
Condition shall have been satisfied in respect of the addition of each
Additional Account specified in clauses (A) and (B) on or prior to the
related Addition Date.
(viii) The addition of the Receivables arising in such Additional
Accounts shall not result in the occurrence of an Early Amortization
Event.
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(ix) The Seller shall have delivered to the Buyer and any
Enhancement Providers a certificate of a Vice President or more senior
officer of its general partner confirming the items set forth in
paragraphs (ii) through (vi) and (viii) above.
(x) The Seller shall have delivered to the Trustee and any
Enhancement Providers (A) an Opinion of Counsel with respect to the
Receivables in the Additional Accounts added since the last delivery of
such opinion substantially in the form of Exhibit G-2 to the Pooling
and Servicing Agreement and (B) except in the case of an addition in
connection with an addition of Receivables by the Buyer to the Trust
required by Section 2.5(a) of the Pooling and Servicing Agreement, a
Tax Opinion with respect to such addition; provided that if such
Opinion of Counsel and Tax Opinion are required to be delivered, they
shall be rendered by outside counsel no more frequently than quarterly.
(c) The Seller hereby represents and warrants as of the applicable
Addition Date as to the matters set forth in Section 2.4(b)(v). The
representations and warranties set forth in Section 2.4(b)(v) shall survive the
sale and assignment of the respective Receivables and Collateral Security, if
any, to the Buyer. Upon discovery by the Seller or the Buyer of a breach of any
of the foregoing representations and warranties, the party discovering the
breach shall give prompt written notice to the other party and to any
Enhancement Providers.
Section 2.5 Covenants of the Seller. The Seller hereby covenants that:
(a) No Liens. Except for the conveyances hereunder and the
conveyance of Participation Interests pursuant to the terms of any
Participation Agreements, the Seller will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer
to exist any Lien on, any Receivable or any Collateral Security,
whether now existing or hereafter created, or any interest therein, and
the Seller shall defend the right, title and interest of the Buyer and
the Trust in, to and under the Receivables and the Collateral Security,
whether now existing or hereafter created, against all claims of third
parties claiming through or under the Seller.
(b) Financing Agreements and Guidelines. The Seller shall comply
with and perform its servicing obligations, if any, with respect to the
Accounts and Receivables in accordance with (i) the Wholesale Financing
Agreements, Accounts Receivable Financing Agreements, Asset Based
Lending Financing Agreements and Unsecured Receivable Financing
Agreements relating to the Accounts and (ii) the Financing Guidelines,
except insofar as any failure to so comply or perform would not
materially and adversely affect the rights of the Buyer, the Trust or
any of the Beneficiaries. Subject to compliance with all Requirements
of Law, the Seller may change the terms and provisions of (i) the
Wholesale Financing Agreements, Accounts Receivable Financing
Agreements, Asset Based Lending Financing Agreements and Unsecured
Receivable Financing Agreements or (ii) the Financing Guidelines in any
respect (including the calculation of the amount or the timing of
charge-offs and the rate of the finance charge assessed thereon) only
if such change would be permitted pursuant to Section 3.1(d) of the
Pooling and Servicing Agreement.
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(c) Account Allocations. In the event that the Seller is unable
for any reason to transfer Receivables to the Buyer, then the Seller
agrees that it shall allocate, after the occurrence of such event,
payments on each Account with respect to the principal balance of such
Account first to the oldest principal balance of such Account and to
have such payments applied as Collections in accordance with the terms
of the Pooling and Servicing Agreement. The parties hereto agree that
Non-Principal Receivables, whenever created, accrued in respect of
Principal Receivables which have been conveyed to the Buyer and by the
Buyer to the Trust shall continue to be a part of the Trust
notwithstanding any cessation of the transfer of additional Principal
Receivables to the Buyer and Collections with respect thereto shall
continue to be allocated and paid in accordance with Article IV of the
Pooling and Servicing Agreement.
(d) Delivery of Collections. In the event that the Seller receives
Collections, the Seller agrees to pay the Servicer or any Successor
Servicer all payments received by the Seller in respect of the
Receivables as soon as practicable after receipt thereof by the Seller,
but in no event later than two Business Days after the receipt by the
Seller thereof.
(e) Notice of Liens. The Seller shall notify the Buyer and the
Trustee promptly after becoming aware of any Lien on any Receivable
conveyed by the Seller other that the conveyances hereunder or under
the Pooling and Servicing Agreement.
(f) Compliance with Law. The Seller hereby agrees to comply in all
material respects with all Requirements of Law applicable to the
Seller.
(g) Concentration of Risk. In order to avoid a concentration of
the risks associated with participating extensions of credit to
Dealers, the Seller may create Participation Interests in its
receivables to be sold or contributed to the Buyer in the same manner
and using the same standards as the Seller does in creating
participation interests in receivables to be retained by the Seller.
(h) Limitation on Creation of Participation Interests. The Seller
shall not create Participation Interests in its receivables to the
extent that the creation of such Participation Interests would, at the
time of such creation, cause the Pool Balance to be less than the
Required Participation Amount.
(i) Performance of Floorplan Agreements. The Seller shall perform
its obligations, if any, under each Floorplan Agreement in accordance
with the terms thereof in all material respects.
Section 2.6 Removal of Eligible Accounts. (a) On each Determination
Date on which Accounts, including all amounts then held by the Trust or
thereafter received by the Trust with respect to such Accounts, are removed from
the Trust pursuant to Section 2.7 of the Pooling and Servicing Agreement, the
Buyer shall be deemed to have offered to the Seller automatically and without
notice to or action by or on behalf of the Buyer, the right to remove Eligible
Accounts from the operation of this Agreement in the manner prescribed in
Section 2.6(b), subject to Section 2.6(d). The termination of an Account by a
Dealer upon such Dealer's payment in full of such Account shall not be a removal
of an Account under this Section.
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(b) To accept such offer and remove Accounts, including all amounts
then held by the Trust or thereafter received by the Trust with respect to such
Accounts, the Seller (or the Servicer on its behalf) shall take the following
actions and make the following determinations:
(i) not less than five Business Days prior to the Removal Date,
furnish to the Buyer, the Trustee, any Enhancement Providers and the
Rating Agencies a written notice (the "Removal Notice") specifying the
Determination Date (which may be the Determination Date on which such
notice is given) on which removal of the Receivables of one or more
Accounts (the "Removed Accounts") will occur (a "Removal Date");
(ii) from and after such Removal Date, cease to transfer to the
Buyer any and all Receivables arising in such Removed Accounts;
(iii) represent and warrant that the removal of any such Eligible
Account on any Removal Date shall not, in the reasonable belief of the
Seller, cause an Early Amortization Event to occur or cause the Pool
Balance to be less than the Required Participation Amount;
(iv) represent and warrant that no selection procedures believed
by the Seller to be adverse to the interests of the Beneficiaries were
utilized in selecting the Accounts to be removed; and
(v) on or before the fifth Business Day after the Removal Date,
furnish to the Trustee a computer file, microfiche list or other list
of the Removed Accounts that were removed on the Removal Date,
specifying for each Removed Account as of the date of the Removal
Notice its number, the aggregate amount outstanding in such Removed
Account and the aggregate amount of Principal Receivables therein and
represent that such computer file, microfiche list or other list of the
Removed Accounts is true and complete in all material respects.
(c) Subject to Section 2.6(b), on the Removal Date with respect to any
such Removed Account, such Removed Account shall be deemed removed by operation
of this Agreement for all purposes. After the Removal Date and upon the written
request of the Servicer, the Buyer, subject to Section 2.6(d), shall deliver to
the Seller a reassignment in substantially the form of Exhibit B (the
"Reassignment").
(d) Notwithstanding any other provision of this Agreement, the Buyer
shall have the right to consent or to decline to consent to any removal of
Removed Accounts (and the related Receivables) to the Seller pursuant to this
Section 2.6. If the Buyer declines to consent to any such removal of Removed
Accounts (and the related Receivables) to the Seller, the Buyer shall provide
notice thereof to the Rating Agencies.
Section 2.7 Removal of Ineligible Accounts. (a) On any date on which an
Account becomes an Ineligible Account (which shall be deemed the Removal
Commencement Date with respect to such Account), the Seller shall commence
removal of such Ineligible Account in the manner prescribed in Section 2.7(b).
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(b) With respect to each Account that becomes an Ineligible Account,
the Seller (or the Servicer on its behalf) shall take the following actions and
make the following determinations:
(i) furnish to the Buyer, the Trustee and any Enhancement
Providers a Removal Notice specifying a Removal Commencement Date and
the Ineligible Accounts to be treated as Designated Accounts;
(ii) determine on the Removal Commencement Date with respect to
such Designated Accounts the Designated Balance with respect to each
such Designated Account and amend Schedule 1 by delivering to the Buyer
a computer file or microfiche or written list containing a true and
complete list of the Removed Accounts specifying for each such Account,
as of the Removal Commencement Date, its account number, the aggregate
amount of Receivables outstanding in such Account and the Designated
Balance;
(iii) from and after such Removal Commencement Date, cease to
transfer to the Buyer any and all Receivables arising in such
Designated Accounts;
(iv) if such Account was an Ineligible Account at the time it was
originally designated as an Account, from and after such Removal
Commencement Date, allocate Collections of Principal Receivables in
respect of each Designated Account, first to the oldest outstanding
principal balance of such Designated Account, until the Removal Date
with respect thereto; and
(v) if such Account was an Ineligible Account at the time it was
originally designated as an Account, on each Business Day from and
after such Removal Commencement Date to and until the related Removal
Date, allocate (A) to the Buyer Defaulted Receivables and Collections
of Non-Principal Receivables and Collections of Non-Principal
Receivables in respect of each Designated Account, based on the ratio
of the aggregate amount of Principal Receivables in all Designated
Accounts sold to the Buyer on such Business Day to the total aggregate
amount of Principal Receivables in all such Designated Accounts on such
Business Day and (B) to the Seller, the remainder of the Defaulted
Receivables and Collections of Non-Principal Receivables in all such
Designated Accounts on such Business Day.
(c) On the Removal Date with respect to any such Designated Account,
the Seller shall cease to allocate any Collections therefor in accordance
herewith and such Designated Account shall be deemed a Removed Account. After
the Removal Date and upon the written request of the Servicer, the Buyer shall
deliver to the Seller a Reassignment; provided, however, that notwithstanding
any other provision of this Agreement, unless such Account was an Ineligible
Account at the time it was originally designated as an Account, the Reassignment
shall reassign only the Account and shall not reassign any Receivable existing
in such Account as of the related Removal Date.
Section 2.8 Sale of Ineligible Receivables. The Seller shall sell to
the Buyer on each Transfer Date any and all Receivables arising in any Eligible
Accounts that are Ineligible
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Receivables, provided that on the Cut-Off Date or, in the case of Receivables
arising in Additional Accounts, on the related Additional Cut-Off Date, and on
the applicable Transfer Date, the Account in which such Receivables arise is an
Eligible Account.
ARTICLE III
Administration and Servicing of Receivables
Section 3.1 The Servicer. CDF shall service and administer the
Receivables in accordance with the terms of the Pooling and Servicing Agreement.
Section 3.2 Servicing Compensation. As full compensation for its
servicing activities under the Pooling and Servicing Agreement, CDF shall be
entitled to receive the Servicing Fee on each Distribution Date so long as it is
the Servicer under the Pooling and Servicing Agreement. The Servicing Fee shall
be paid in accordance with the terms of the Pooling and Servicing Agreement.
ARTICLE IV
Rights of Certificateholders and
Allocation and Application of Collections
Section 4.1 Allocations and Applications of Collections and Other
Funds. The Servicer will apply all Collections with respect to the Receivables
and all funds on deposit in the Collection Account as described in Article IV of
the Pooling and Servicing Agreement.
ARTICLE V
Other Matters Relating to the Seller
Section 5.1 Merger or Consolidation of, or Assumption of, the
Obligations of the Seller. The Seller shall not consolidate with or merge into
any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(a) the corporation formed by such consolidation or into which the
Seller is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Seller substantially as an entirety shall be a
corporation organized and existing under the laws of the United States of
America or any State or the District of Columbia and, if the Seller is not the
surviving entity, such corporation shall assume, without the execution or filing
of any paper or any further act on the part of any of the parties hereto, the
performance of every covenant and obligation of the Seller hereunder; and
(b) the Seller has delivered to the Buyer and the Trustee an Officers'
Certificate each stating that such consolidation, merger, conveyance or transfer
comply with this Section 5.1 and that all conditions precedent herein provided
for relating to such transaction have been complied with.
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Section 5.2 Seller's Indemnification of the Buyer. The Seller shall
indemnify and hold harmless the Buyer, from and against any loss, liability,
expense, claim, damage or injury suffered or sustained by reason of any acts,
omissions or alleged acts or omissions arising out of activities of the Seller
pursuant to this Agreement arising out of or based on the arrangement created by
this Agreement and the activities of the Seller taken pursuant thereto,
including any judgment, award, settlement, reasonable attorneys' fees and other
costs or expenses incurred in connection with the defense of any actual or
threatened action, proceeding or claim; provided, however, that the Seller shall
not indemnify the Buyer if such acts, omissions or alleged acts or omissions
constitute fraud, gross negligence or wilful misconduct by the Buyer; and
provided further, that such Seller shall not indemnify the Buyer for any
liabilities, cost or expense of the Buyer with respect to any federal, state or
local income or franchise taxes (or any interest or penalties with respect
thereto) required to be paid by the Buyer in connection herewith to any taxing
authority. Any indemnification under this Article V shall survive the
termination of the Agreement.
ARTICLE VI
Termination
This Agreement will terminate immediately after the Trust terminates
pursuant to the Pooling and Servicing Agreement. In addition, the Buyer shall
not purchase Receivables from the Seller nor shall the Seller designate
Additional Accounts if the Seller shall become an involuntary party to (or be
made the subject of) any proceeding provided for by any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings of or
relating to the Seller or relating to all or substantially all of its property
(an "Involuntary Case") and such Involuntary Case shall have continued for a
period of ten Business Days from and including the day of receipt by the Seller
at its principal corporate office of notice of such Involuntary Case; provided,
that during such ten Business Day period, the Buyer shall suspend its purchase
of Receivables and shall hold all Collections of Principal Receivables that
would have been available to purchase Receivables in the Collection Account and
(a) if by the first Business Day after such ten Business Day period, the Buyer
has not obtained an order from the court having jurisdiction of such case or
filing which order approves the continuation of the sale of Receivables by the
Seller to the Buyer and which provides that the Buyer and any of its transferees
(including the Trustee) may rely on such order for the validity and nonavoidance
of such transfer (the "Order"), the Buyer shall hold such Collections in the
Collection Account until such time as they may be paid as elsewhere provided
herein and shall not purchase Receivables thereafter or designate Additional
Accounts for transfer to the Buyer, or (b) if by such first Business Day, the
Buyer has obtained such Order, the Seller may continue selling Receivables, and
the Buyer may continue purchasing Receivables, pursuant to the terms hereof, as
modified by the immediately succeeding sentence. During the period after the ten
Business Day period described above and before the end of the 60-day period
described below, the purchase price of the Receivables transferred during such
period, notwithstanding anything in this Agreement to the contrary, shall be
paid to the Seller by the Buyer in cash not later than the same Business Day of
any sale of Receivables. During such period, Receivables will be considered
transferred to the Buyer only to the extent that the purchase price therefor has
been paid in cash on the same Business Day. If an Order is obtained but
subsequently is reversed or rescinded or expires, the Seller shall immediately
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cease selling Receivables to the Buyer and the Buyer shall immediately cease
buying Receivables. The Seller shall give prompt written notice to each of the
Buyer and the Trustee immediately upon becoming a party to an Involuntary Case.
If by the first Business Day after the 60-day period after such involuntary
filing, such Involuntary Case has not been dismissed, the Buyer shall not
purchase thereafter Receivables or designated Additional Accounts for transfer
to the Issuer.
ARTICLE VII
Miscellaneous Provisions
Section 7.1 Amendment. (a) This Agreement may be amended from time to
time by the Seller and the Buyer; provided, however, that such action shall not,
as evidenced by an Officers' Certificate for the Seller addressed and delivered
to the Trustee, adversely affect in any material respect the interests of any
Investor Certificateholder.
(b) In the event that Section 7.1(a) is not then applicable, this
Agreement may also be amended from time to time by the Buyer and the Seller with
the consent of the Holders of Investor Certificates evidencing more than 50% of
the aggregate unpaid principal amount of the Investor Certificates of all
materially adversely affected Series, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Seller; provided,
however, that no such amendment shall (i) reduce in any manner the amount of or
delay the timing of any distributions to be made to Investor Certificateholders
or deposits of amounts to be so distributed with the amount available under any
Enhancement without the consent of each affected Investor Certificateholder,
(ii) change the definition of or the manner of calculating the interest of any
Investor Certificateholders without the consent of each affected
Certificateholder, (iii) reduce the aforesaid percentage required to consent to
any such amendment without the consent of each Certificateholder or (iv)
adversely affect the rating of any Series or Class by any Rating Agency without
the consent of the Holders of all of the Investor Certificates of such Series or
Class. Any amendment to be effected pursuant to this paragraph (b) shall be
deemed to materially adversely affect all outstanding Series, other than any
Series with respect to which such amendment shall not, as evidenced by an
Officers' Certificate for the Seller, addressed and delivered to the Trustee,
adversely affect in any material respect the interests of any Investor
Certificateholder of such Series. The Trustee may, but shall not be obligated
to, enter into any such amendment which affects the Trustee's rights, duties or
immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent
(other than an amendment pursuant to paragraph (a)), the Seller shall furnish
notification of the substance of such amendment to each Investor
Certificateholder, each Enhancement Provider, each Agent and each Rating Agency.
(d) It shall not be necessary for the consent of Investor
Certificateholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Investor Certificateholders shall be
subject to such reasonable requirements as the Trustee may prescribe.
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(e) Notwithstanding anything in this Section to the contrary, no
amendment may be made to this Agreement which would adversely affect in any
material respect the interests of any Enhancement Provider without the consent
of such Enhancement Provider.
Section 7.2 Protection of Right, Title and Interest to Receivables. (a)
The Seller shall cause this Agreement, all amendments hereto and/or all
financing statements and continuation statements and any other necessary
documents covering the Buyer's right, title and interest to the Receivables and
Collateral Security relating thereto to be promptly recorded, registered and
filed, and at all times to be kept recorded, registered and filed, all in such
manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of the Buyer hereunder. The Seller shall
deliver to the Buyer file-stamped copies of, or filing receipts for, any
document recorded, registered or filed as provided above, as soon as available
following such recording, registration or filing. The Buyer shall cooperate
fully with the Seller in connection with the obligations set forth above and
will execute any and all documents reasonably required to fulfill the intent of
this Section 7.2(a).
(b) Within 30 days after the Seller makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with Section 7.2(a) seriously
misleading within the meaning of the UCC, the Seller shall give the Buyer and
any Agent notice of any such change and shall file such financing statements or
amendments as may be necessary to continue the perfection of the Buyer's
security interest in the Receivables and the proceeds thereof.
(c) The Seller will give the Buyer prompt written notice of any
relocation of any office at which it keeps Records concerning the Receivables or
of its principal executive office if, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new financing
statement and shall file such financing statements or amendments as may be
necessary to perfect or to continue the perfection of the Buyer's ownership
interest in the Receivables and the proceeds thereof. The Seller will at all
times maintain its principal executive offices within the United States of
America.
Section 7.3 Limited Recourse. Notwithstanding anything to the contrary
contained herein, the obligations of the Buyer hereunder shall not be recourse
to the Buyer (or any person or organization acting on behalf of the Buyer or any
affiliate, Officer or director of the Buyer), other than to (a) the portion of
the Seller's Interest on any date of determination which is in excess of the
Required Participation Amount and (b) any other assets of the Buyer not pledged
to third parties or otherwise encumbered in a manner permitted by the Buyer's
limited liability company agreement; provided, however, that any payment by the
Buyer made in accordance with this Section 7.3 shall be made only after payment
in full of any amounts that the Buyer is obligated to deposit in the Collection
Account pursuant to this Agreement; provided further that the Investor
Certificateholders shall be entitled to the benefits of the subordination of the
Collections allocable to the Seller's Interest to the extent provided in the
Supplements.
Section 7.4 No Petition. The Seller hereby covenants and agrees that it
will not at any time institute against the Buyer or any member of the Buyer any
bankruptcy, reorganization,
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arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States Federal or state bankruptcy or similar law.
Section 7.5 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, (INCLUDING SECTION
5-1401(1) OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT
REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS OF THE STATE OF NEW YORK).
Section 7.6 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, to (i) in
the case of the Seller, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Secretary, and (ii) in the case of the Buyer, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Manager, or in each case at such
other address as shall be designated by such party in a written notice to the
other party.
Section 7.7 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or rights of the Certificateholders.
Section 7.8 Assignment. Notwithstanding anything to the contrary
contained herein, this Agreement may not be assigned by the Seller without the
prior consent of the Buyer and the Trustee. The Buyer may assign its rights,
remedies, powers and privileges under this Agreement to the Trust pursuant to
the Pooling and Servicing Agreement.
Section 7.9 Further Assurances. The Seller agrees to do and perform,
from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the Buyer more fully to effect
the purposes of this Agreement, including the execution of any financing
statements or continuation statements relating to the Receivables for filing
under the provisions of the UCC of any applicable jurisdiction.
Section 7.10 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Buyer, any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section 7.11 Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
Section 7.12 Third-Party Beneficiaries. This Agreement will inure to
the benefit of and be binding upon the parties hereto, the Certificateholders,
the Trustee and the other Beneficiaries
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and their respective successors and permitted assigns. Except as otherwise
provided in this Agreement, no other Person will have any right or obligation
hereunder.
Section 7.13 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
Section 7.14 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 7.15 Submission to Jurisdiction. Each of the parties hereto
hereby irrevocably and unconditionally: (a) submits for itself and its property
in any legal action or proceeding relating to this Agreement, the Assignments,
the Reassignments or the other documents executed and delivered in connection
herewith or for recognition and enforcement of any judgment in respect thereof,
to the non-exclusive general jurisdiction of the courts of the State of New
York, the courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of such action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Person at its
address determined in accordance with Section 7.6; and
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to ▇▇▇
in any other jurisdiction.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the Seller and the Buyer have caused this
Receivables Contribution and Sale Agreement to be duly executed as of the day
and year first above written.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P., as
Seller
By: DEUTSCHE FLOORPLAN RECEIVABLES,
INC., its general partner
By: _____________________________________
Name:________________________________
Title:_______________________________
S-1
CDF FINANCING, L.L.C., as Buyer
By: ____________________________________
Name:_______________________________
Title:______________________________
S-2
EXHIBIT A
TO RCSA
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.4
of the Receivables Contribution and Sale Agreement)
ASSIGNMENT No. OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of ,
(this "Assignment"), between Deutsche Floorplan Receivables, L.P., as [seller]
[contributor] (the "Seller"), and CDF Financing, L.L.C., as Buyer ("Buyer"),
pursuant to the Receivables Contribution and Sale Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to the Receivables Contribution
and Sale Agreement dated as of December 31, 2002 (as amended or supplemented,
the "Receivables Contribution and Sale Agreement");
WHEREAS, pursuant to the Receivables Contribution and Sale Agreement,
the Seller wishes to designate Additional Accounts to be included as Accounts
and to convey the Receivables and related Collateral Security of such Additional
Accounts, whether now existing or hereafter created, to the Buyer as part of the
corpus of the Trust (as each such term is defined in the Receivables
Contribution and Sale Agreement); and
WHEREAS the Buyer is willing to accept such designation and conveyance
subject to the terms and conditions hereof;
NOW, THEREFORE, the Seller and the Buyer hereby agree as follows:
1. Defined Terms. All capitalized terms used herein (including in the
recitals hereto) shall have the meanings ascribed to them in the Receivables
Contribution and Sale Agreement unless otherwise defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
designated hereby, ___________, 20___.
2. Designation of Additional Accounts. The Seller hereby delivers
herewith a computer file or microfiche or written list containing a true and
complete list of all such Additional Accounts specifying for each such Account,
as of the Additional Cut-Off Date, its account number, the aggregate amount of
Receivables outstanding in such Account and the aggregate amount of Principal
Receivables in such Account. Such file or list shall, as of the date of this
Assignment, supplement Schedule 1 to the Receivables Contribution and Sale
Agreement.
3. Conveyance of Receivables. (a) The Seller does hereby [sell]
[contribute], transfer, assign, set over and otherwise convey, without recourse
(except as expressly provided in the Receivables Contribution and Sale
Agreement), to the Buyer, on the Addition Date all of its right, title and
interest in, to and under the Receivables in such Additional Accounts, all
A-1
Collateral Security and the related Floorplan Rights with respect thereto, owned
by the Seller and existing at the close of business on the Additional Cut-Off
Date and thereafter created from time to time, all monies due or to become due
and all amounts received with respect thereto and all proceeds (including
"proceeds" as defined in the UCC and Recoveries) thereof. The foregoing [sale]
[contribution], transfer, assignment, set-over and conveyance does not
constitute and is not intended to result in the creation or an assumption by the
Buyer of any obligation of the Servicer, the Seller or any other Person in
connection with the Accounts, the Receivables or under any agreement or
instrument relating thereto, including any obligation under the Financing
Agreement, Floorplan Agreement and any Participation Agreement, including any
other obligation to any Dealer or Manufacturer.
(b) In connection with such [sale] [contribution], the Seller agrees to
record and file, at its own expense, a financing statement on form UCC-1 (and
continuation statements when applicable) with respect to the Receivables now
existing and hereafter created for the sale of chattel paper, accounts and
general intangibles (as defined in the UCC) meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect the sale and assignment of the Receivables and the Collateral
Security to the Buyer, and to deliver a file-stamped copy of such financing
statements or other evidence of such filing to the Buyer on or prior to the
Addition Date to the extent, if any, that the UCC-1 financing statements filed
pursuant to Section 2.1 of the Receivables Contribution and Sale Agreement are
not sufficient for such purpose. In addition, the Seller shall cause to be
timely filed in the appropriate filing office any UCC-1 financing statement and
continuation statement necessary to perfect any sale of Receivables to the
Seller. The Buyer shall be under no obligation whatsoever to file such financing
statement, or a continuation statement to such financing statement, or to make
any other filing under the UCC in connection with such [sale] [contribution].
The parties hereto intend that the [sales] [contributions] of Receivables
effected by this Agreement be [sales] [true contributions].
(c) In connection with such [sale] [contribution], the Seller further
agrees, at its own expense, on or prior to the Addition Date, to indicate in its
books and records, which may include its computer files, that the Receivables
created in connection with the Additional Accounts designated hereby have been
sold and the Collateral Security assigned to the Buyer pursuant to this
Assignment and sold to the Trust pursuant to the Pooling and Servicing Agreement
for the benefit of the Certificateholders and the other Beneficiaries.
4. Acceptance by Buyer. Subject to the satisfaction of the conditions
set forth in Section 6 of this Assignment, the Buyer hereby acknowledges its
acceptance of all right, title and interest to the property, now existing and
hereafter created, conveyed to the Buyer pursuant to Section 3(a) of this
Assignment. The Buyer further acknowledges that, prior to or simultaneously with
the execution and delivery of this Assignment, the Seller delivered to the Buyer
the computer file or microfiche or written list relating to the Additional
Accounts described in Section 2 of this Assignment.
5. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Buyer, on behalf of the Trust, as of the date of
this Assignment and as of the Addition Date that:
A-2
(a) Legal, Valid and Binding Obligation. This Assignment constitutes a
legal, valid and binding obligation of the Seller, enforceable against the
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 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) Organization and Good Standing. The Seller is a limited partnership
duly organized and validly existing and in good standing under the law of the
State of its organization and has, in all material respects, full limited
partnership power, authority and legal right to own its properties and conduct
its business as such properties are presently owned and such business is
presently conducted, and to execute, deliver and perform its obligations under
this Assignment;
(c) Due Qualification. The Seller is duly qualified to do business and,
where necessary, is in good standing as a foreign limited partnership (or is
exempt from such requirement) and has obtained all necessary licenses and
approvals in each jurisdiction in which the conduct of its business requires
such qualification except where the failure to so qualify or obtain licenses or
approvals would not have a material adverse effect on its ability to perform its
obligations hereunder;
(d) Eligible Accounts. Each Additional Account designated hereby is an
Eligible Account;
(e) Selection Procedures. No selection procedures believed by the
Seller to be adverse to the interests of the Beneficiaries were utilized in
selecting the Additional Accounts designated hereby;
(f) Insolvency. As of the Notice Date and the Addition Date, the Seller
is not insolvent nor, after giving effect to the conveyance set forth in Section
3 of this Assignment, will it have been made insolvent, nor is it aware of any
pending insolvency;
(g) Valid Transfer. This Assignment constitutes a valid [sale]
[contribution], transfer and assignment to the Buyer of all right, title and
interest of the Seller in the Receivables and the Collateral Security and the
proceeds thereof and upon the filing of the financing statements described in
Section 3 of this Assignment with the Secretary of State of the State of Nevada
and, in the case of the Receivables [and the Collateral Security] hereafter
created and the proceeds thereof, upon the creation thereof, the Buyer shall
have a first priority perfected ownership interest in such property, except for
Liens permitted under Section 2.6(a) of the Receivables Contribution and Sale
Agreement;
(h) Due Authorization. The execution and delivery of this Assignment
and the consummation of the transactions provided for or contemplated by this
Assignment have been duly authorized by the Seller by all necessary limited
partnership action on the part of the Seller;
(i) No Conflict. The execution and delivery of this Assignment, the
performance of the transactions contemplated by this Assignment and the
fulfillment of
A-3
the terms hereof, will not conflict with, result in any breach of any of the
material terms and provisions of, or constitute (with or without notice or lapse
of time or both) a material default under, any indenture, contract, agreement,
mortgage, deed of trust, or other instrument to which the Seller is a party or
by which it or its properties are bound;
(j) No Violation. The execution and delivery of this Assignment by the
Seller, the performance of the transactions contemplated by this Assignment and
the fulfillment of the terms hereof will not conflict with or violate any
material Requirements of Law applicable to the Seller;
(k) No Proceedings. There are no proceedings or, to the best knowledge
of the Seller, investigations pending or threatened against the Seller before
any Governmental Authority (i) asserting the invalidity of this Assignment, (ii)
seeking to prevent the consummation of any of the transactions contemplated by
this Assignment, (iii) seeking any determination or ruling that, in the
reasonable judgment of the Seller, would materially and adversely affect the
performance by the Seller of its obligations under this Assignment, (iv) seeking
any determination or ruling that would materially and adversely affect the
validity or enforceability of this Assignment or (v) seeking to affect adversely
the income tax attributes of the Trust under the United States federal or any
State income, single business or franchise tax systems;
(l) Record of Accounts. As of the Addition Date, Schedule 1 to this
Assignment is an accurate and complete listing in all material respects of all
the Additional Accounts as of the Additional Cut-Off Date and the information
contained therein with respect to the identity of such Accounts and the
Receivables existing thereunder is true and correct in all material respects as
of the Additional Cut-Off Date;
(m) No Liens. Each Receivable and all Collateral Security existing on
the Addition Date has been conveyed to the Buyer free and clear of any Lien;
(n) All Consents Required. With respect to each Receivable and all
Collateral Security existing on the Addition Date, all consents, licenses,
approvals or authorizations of or registrations or declarations with any
Governmental Authority required to be obtained, effected or given by the Seller
in connection with the conveyance of such Receivable or Collateral Security to
the Buyer, the execution and delivery of this Assignment and the performance of
the transactions contemplated hereby have been duly obtained, effected or given
and are in full force and effect; and
(o) Eligible Receivables. On the Additional Cut-Off Date each
Receivable conveyed to the Buyer pursuant to this Assignment as of such date is
an Eligible Receivable or, if such Receivable is not an Eligible Receivable,
such Receivable is conveyed to the Buyer in accordance with Section 2.8 of the
Receivables Contribution and Sale Agreement.
6. Conditions Precedent. The acceptance of the Buyer set forth in
Section 4 of this Assignment is subject to the satisfaction, on or prior to the
Addition Date, of the following conditions precedent:
A-4
(a) Representations and Warranties. Each of the representations
and warranties made by the Seller in Section 5 of this Assignment shall
be true and correct as of the date of this Assignment and as of the
Addition Date;
(b) Agreement. Each of the conditions set forth in Section 2.4(b)
of the Receivables Contribution and Sale Agreement applicable to the
designation of the Additional Accounts to be designated hereby shall
have been satisfied; and
(c) Addition Information. The Seller shall have delivered to the
Buyer such information as was reasonably requested by the Buyer to
satisfy itself as to the accuracy of the representation and warranty
set forth in Section 5(d) of this Assignment.
7. Ratification of Agreement. As supplemented by this Assignment, the
Receivables Contribution and Sale Agreement is in all respects ratified and
confirmed and the Receivables Contribution and Sale Agreement as so supplemented
by this Assignment shall be read, taken and construed as one and the same
instrument.
8. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties in separate counterparts), each of which
shall be an original but all of which together shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK, (INCLUDING SECTION 5-1401(1) OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY
OTHER CONFLICT OF LAW PROVISIONS OF THE STATE OF NEW YORK).
A-5
IN WITNESS WHEREOF, the Seller and the Buyer have caused this
Assignment to be duly executed and delivered on the day and year first above
written.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P., as Seller
By: DEUTSCHE FLOORPLAN RECEIVABLES,
INC., its general partner
By: __________________________________________
Name:
Title:
CDF FINANCING, L.L.C.,
as Buyer
By: __________________________________________
Name:
Title:
A-6
EXHIBIT B
TO RCSA
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
(As required by Section 2.6 of the Receivables
Contribution and Sale Agreement referred to below)
REASSIGNMENT NO. __ OF RECEIVABLES, dated as of __________, ____,
by and between DEUTSCHE FLOORPLAN RECEIVABLES, L.P., as seller
(the "Seller"), and CDF FINANCING, L.L.C., as buyer (the "Buyer"),
pursuant to the Receivables Contribution and Sale Agreement
referred to below.
W I T N E S S E T H
WHEREAS the Seller and the Buyer are parties to the Receivables
Contribution and Sale Agreement dated as of December 31, 2002 (as amended or
supplemented, the "Receivables Contribution and Sale Agreement");
WHEREAS, pursuant to the Receivables Contribution and Sale Agreement,
the Seller wishes to remove all Receivables from certain Accounts, the
Collateral Security thereof and the related Floorplan Rights (the "Removed
Accounts") and to cause the Buyer to reconvey the Receivables of such Removed
Accounts and such Collateral Security and Floorplan Rights, whether now existing
or hereafter created, and all amounts currently held by the Buyer or thereafter
received by the Trust in respect of such Removed Accounts, from the Buyer to the
Seller (as each such term is defined in the Receivables Contribution and Sale
Agreement); and
WHEREAS the Buyer is willing to accept such removal and to reconvey the
Receivables in the Removed Accounts, such Collateral Security and any related
amounts held or received by the Trust subject to the terms and conditions
hereof.
NOW, THEREFORE, the Seller and the 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" shall mean, with respect to the Removed Accounts
designated hereby, ______________.
2. Notice of Removed Accounts. The Seller shall deliver to the Buyer,
the Trustee, any Enhancement Providers and the Rating Agencies a computer file
or microfiche or written list containing a true and complete list of the Removed
Accounts specifying for each such Account, as of the Removal Commencement Date,
its account number, the aggregate amount of Receivables outstanding in such
Accounts and the Designated Balance. Such list shall be marked as Schedule 1 to
this Reassignment and shall be incorporated into and made a part of this
Reassignment as of the Removal Date and shall amend Schedule 1 to the
Receivables Contribution and Sale Agreement.
B-1
3. Conveyance of Receivables and Accounts. (a) The Buyer does hereby
transfer, assign, set over and otherwise convey to the Seller, without recourse,
representation or warranty on and after the Removal Date, all right, title and
interest of the Trust in, to and under all [Receivables now existing at the
close of business on the Removal Date and thereafter created from time to time
until the termination of the Trust in Removed Accounts designated hereby, all
Collateral Security thereof, the related Floorplan Rights, all monies due or to
become due and all amounts received with respect thereto (including all
Non-Principal Receivables), all proceeds (as defined in of the UCC and
Recoveries) thereof relating thereto][in the case of Removed Accounts which are
to be removed pursuant to Section 2.7 of the Receivables Contribution and Sale
Agreement and which were not Ineligible Accounts at the time they were
originally designated as Accounts, replace the immediately preceding bracketed
text with the following: the Removed Accounts but not any right, title and
interest of the Trust in, to and under (i) any Receivables existing as of the
Removal Date in Removed Accounts designated hereby, (ii) all Collateral Security
relating to such Receivables, (iii) the related Floorplan Rights, (iv) all
monies due or to become due and all amounts received with respect to such
Receivables (including all Non-Principal Receivables), (v) all proceeds (as
defined in the UCC and Recoveries) thereof relating to such Receivables, it
being understood that the items described in clauses (i)-(v) will continue to be
Trust Assets] .
(b) If requested by the Seller, in connection with such transfer, the
Buyer agrees to execute and deliver to the Seller, on or prior to the date of
this Reassignment, a termination statement with respect to the Receivables
existing at the close of business on the Removal Date and thereafter created
from time to time and Collateral Security thereof in the Removed Accounts
reassigned hereby (which may be a single termination statement with respect to
all such Receivables and Collateral Security) evidencing the release by the
Trust of its lien on the Receivables in the Removed Accounts and the Collateral
Security, and meeting the requirements of applicable state law, in such manner
and such jurisdictions as are necessary to remove such lien.
4. Acceptance by Buyer. The Buyer hereby acknowledges that, prior to or
simultaneously with the execution and delivery of this Reassignment, the Seller
delivered to the Buyer the computer file or such microfiche or written list
described in Section 2(b) of this Reassignment.
5. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Buyer as of the date of this Reassignment and as
of the Removal Date:
(a) Legal, Valid and Binding Obligation. This Reassignment
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the 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
generally and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in
equity);
(b) No Early Amortization Event. The removal of the Accounts
hereby removed shall not, in the reasonable belief of the Seller, cause
an Early Amortization
B-2
Event to occur or cause the Pool Balance to be less than the Required
Participation Amount;
(c) Selection Procedures. No selection procedures believed by the
Seller to be adverse to the interests of the Beneficiaries were
utilized in selecting the Accounts to be removed; and
(d) True and Complete List. The list of Removed Accounts described
in Section 2(b) of this Assignment is, as of the Removal Commencement
Date, true and complete in all material respects.
provided, however, that in the event that the removal on such Removal Date
relates solely to Ineligible Accounts, the Seller shall be deemed to make only
the representations and warranties contained in paragraph 5(a) above.
6. Condition Precedent. In addition to the conditions precedent set
forth in Section 2.6 of the Receivables Contribution and Sale Agreement, the
obligation of the Buyer to execute and deliver this Reassignment is subject to
the Seller having delivered on or prior to the Removal Date to the Trustee, the
Buyer, any Agent, and any Enhancement Providers an Officers' Certificate
certifying that (i) as of the Removal Date, all requirements set forth in
Section 2.6 of the Agreement for removing such Accounts and reconveying the
Receivables of such Removed Accounts, the Collateral Security and the related
Floorplan Rights, whether existing at the close of business on the Removal Date
or thereafter created from time to time until the termination of the Trust, have
been satisfied, and (ii) each of the representations and warranties made by the
Seller in Section 5 hereof is true and correct as of the date of this
Reassignment and as of the Removal Date. The Buyer may conclusively rely on such
Officers' Certificate, shall have no duty to make inquiries with regard to the
matters set forth therein and shall incur no liability in so relying.
7. Ratification of Agreement. As supplemented by this Reassignment the
Receivables Contribution and Sale Agreement is in all respects ratified and
confirmed and the Receivables Contribution and Sale Agreement as so supplemented
by this Reassignment shall be read, taken and construed as one and the same
instrument.
8. 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.
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, (INCLUDING SECTION 5-1401(1) OF
THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY
OTHER CONFLICT OF LAW PROVISIONS OF THE STATE OF NEW YORK).
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.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.,
as Seller
By: DEUTSCHE FLOORPLAN RECEIVABLES, INC.,
its general partner
By: __________________________________________
Name:
Title:
CDF FINANCING, L.L.C.,
as Buyer
By: __________________________________________
Name:
Title:
Schedule 1
List of Accounts
[Provided separately to the Buyer and the
Trustee and deemed to be incorporated herein.]