EXHIBIT 10.1
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DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
Buyer
with
DEUTSCHE FINANCIAL SERVICES CORPORATION
and
DEUTSCHE BUSINESS SERVICES CORPORATION
Sellers
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
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Table of Contents
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Page
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ARTICLE I
Definitions
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Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Other Definitional Provisions . . . . . . . . . . . . . . . . 1
ARTICLE II
Conveyance of Receivables
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Section 2.1. Conveyance of Receivables . . . . . . . . . . . . . . . . . . 2
Section 2.2. Representations and Warranties of the Sellers
Relating to the Sellers and the Agreement . . . . . . . . 4
Section 2.3. Representations and Warranties of the Sellers
Relating to the Receivables . . . . . . . . . . . . . . . 7
Section 2.4. Addition of Accounts . . . . . . . . . . . . . . . . . . . . 9
Section 2.5. Covenants of the Sellers . . . . . . . . . . . . . . . . . . 11
Section 2.6. Removal of Eligible Accounts . . . . . . . . . . . . . . . . 13
Section 2.7. Removal of Ineligible Accounts . . . . . . . . . . . . . . . 14
Section 2.8. Sale of Ineligible Receivables . . . . . . . . . . . . . . . 15
ARTICLE III
Administration and Servicing of Receivables
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Section 3.1. Acceptance of Appointment and Other Matters
Relating to the Servicer . . . . . . . . . . . . . . . . . 16
Section 3.2. Servicing Compensation . . . . . . . . . . . . . . . . . . . 16
ARTICLE IV
Rights of Certificateholders and
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Allocation and Application of Collections
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Section 4.1. Allocations and Applications of Collections
and Other Funds . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE V
Other Matters Relating to the Sellers
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Section 5.1. Merger or Consolidation of, or Assumption
of, the Obligations of the Sellers . . . . . . . . . . . . 16
Section 5.2. Sellers' Indemnification of the Buyer . . . . . . . . . . . . 17
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ARTICLE VI
Termination
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ARTICLE VII
Miscellaneous Provisions
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Section 7.1. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 7.2. Protection of Right, Title and Interest
to Receivables . . . . . . . . . . . . . . . . . . . . . . 20
Section 7.3. Limited Recourse . . . . . . . . . . . . . . . . . . . . . . 20
Section 7.4. No Petition . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 7.5. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 7.6. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 7.7. Severability of Provisions . . . . . . . . . . . . . . . . . 21
Section 7.8. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 7.9. Further Assurances . . . . . . . . . . . . . . . . . . . . . 21
Section 7.10. No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . 22
Section 7.11. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 7.12. Third-Party Beneficiaries . . . . . . . . . . . . . . . . . . 22
Section 7.13. Merger and Integration . . . . . . . . . . . . . . . . . . . 22
Section 7.14. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 7.15. Continued Effectiveness of the Receivables
Contribution and Sale Agreement . . . . . . . . . . . . . 22
EXHIBITS
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Exhibit A Form of Assignment of Receivables in Additional Accounts
Exhibit B Form of Opinion of Counsel regarding Amendments
Exhibit C 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 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, among DEUTSCHE FLOORPLAN
RECEIVABLES, L.P., a Delaware limited partnership, formerly known as ITT
Floorplan Receivables, L.P., as Buyer, DEUTSCHE FINANCIAL SERVICES CORPORATION
("DFS"), a Nevada corporation, formerly known as ITT Commercial Finance Corp.,
and DEUTSCHE BUSINESS SERVICES CORPORATION ("Deutsche BSC"), a Missouri
corporation, formerly known as ITT Business Services Corporation, as Sellers.
W I T N E S S E T H:
WHEREAS the Sellers in the ordinary course of their businesses finance
the purchase of floorplan inventory, accounts receivable and other assets of
dealers in, and manufacturers of, commercial and consumer products, thereby
generating certain payment obligations;
WHEREAS the Sellers wish to sell or contribute certain of such
existing and future payment obligations from time to time to the Buyer; and
WHEREAS the Buyer desires to sell such payment obligations to the
Deutsche Floorplan Receivables Master Trust, pursuant to a Pooling and Servicing
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 "Pooling and Servicing Agreement"), among the Buyer, as seller,
DFS, as servicer, and The Chase Manhattan Bank, as trustee (the "Trustee").
WHEREAS the Sellers and the Buyer desire to amend and restate
this Agreement.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
Definitions
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Section 1.1. Definitions. Capitalized terms used herein but not
otherwise defined 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.
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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
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Section 2.1. Conveyance of Receivables. By execution of this
Agreement, each Seller does hereby sell, transfer, assign, set over and
otherwise convey, without recourse (except as expressly provided herein), to the
Buyer on the first Closing Date, in the case of Initial 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 such Seller at the close of
business on the Cut-Off Date, in the case of the Initial 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 Section 9-306 of the UCC as in
effect in the State of Missouri and the State of Georgia, as applicable, and
Recoveries) thereof and all of such 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"), each 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 such 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 Section 9-306 of the UCC as in effect in the State of
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Missouri and the State of Georgia, as applicable, and Recoveries) thereof and
all of such 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, either 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.
To the extent, if any, that a Receivable and its Collateral Security
was subject to a participation arrangement under which DFS and Deutsche BSC
owned undivided interests in such Receivable and Collateral Security immediately
prior to its conveyance hereunder, DFS and Deutsche BSC are hereby selling,
transferring, assigning, setting over and conveying to the Buyer all of their
right, title and interest in their respective undivided interests in such
Receivable and Collateral Security, such that the Buyer owns the entire
Receivable and its Collateral Security free of any such participation
arrangement.
On the Closing Date, pursuant to the terms of this Section 2.1, (i)
DFS shall contribute as capital to the Buyer Receivables in the amount of
$2,245,412,372.69, together with the related Collateral Security and Floorplan
Rights (defined below) and (ii) Deutsche BSC shall sell to the Buyer Receivables
in the amount of $2,632,722.01, together with the related Collateral Security
and Floorplan Rights. Subject to Article VI, the purchase price for the
Receivables sold by (a) Deutsche BSC to the Buyer on the Closing Date and (b) by
each of the Sellers to the Buyer on each Addition Date and on each Transfer Date
thereafter shall be a price agreed to by the Buyer and each 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, DFS may convey as a capital
contribution to the Buyer (or convey as a capital contribution to the general
partner of the Buyer which may then convey as a capital contribution to the
Buyer) Receivables together with the related Collateral Security and Floorplan
Rights.
In connection with such contributions and sales, each Seller agrees to
record and file, at its own expense, a financing statement on form UCC-1 (and
continuation statements when applicable) naming the applicable Seller as
"seller" and the Buyer as "Purchaser" thereon with respect to the Receivables
now existing and hereafter created for the sale of chattel paper, accounts or
general intangibles (as defined in Section 9-105 of the UCC as in
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effect in any state where such Seller's or the Servicer's chief executive
offices or books and records relating to the Receivables are located) 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 such 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 deliver a
file-stamped copy of such financing statements or other evidence of such filing
to the Buyer on or prior to the first Closing Date, in the case of Initial
Accounts, and (if any additional filing is so necessary) the applicable Addition
Date, in the case of Additional Accounts. In addition, each 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 effected by this Agreement be sales (or, in the case of
contributions, true contributions).
In connection with such contribution and sales, each Seller further
agrees, at its own expense, on or prior to the first Closing Date, in the case
of Initial 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 Cut-Off Date, in the case of Initial 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 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 each Seller shall be deemed to have granted to the Buyer a first
priority perfected security interest in all of such Seller's right, title and
interest to and under the Receivables, the Collateral Security and all proceeds
thereof and
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the Floorplan Agreements, and that this Agreement shall constitute a security
agreement under applicable law.
Section 2.2. Representations and Warranties of the Sellers Relating to
the Sellers and the Agreement. Each Seller hereby represents and warrants to the
Buyer, as to itself and the Receivables being transferred and sold by it
hereunder, as of each Closing Date that:
(a) Organization and Good Standing. Such Seller is a corporation
duly organized and validly existing and in good standing under the
laws of the state of its incorporation and has, in all material
respects, full corporate 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. Such Seller is duly qualified to do
business and, where necessary, is in good standing as a foreign
corporation (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 such
Seller by all necessary corporate action on the part of the Seller and
are within its corporate 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 such 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 such
Seller, will not conflict with or violate any material Requirements of
Law applicable to such Seller or conflict with, violate, 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
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under any indenture, contract, agreement, mortgage, deed of trust, or
other instrument to which either Seller is a party or by which such
Seller is bound.
(f) 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, (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 such Seller enforceable against such 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 first Closing Date, in the case
of Initial 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 Cut-Off 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 Cut-Off Date, such applicable
Additional Cut-Off Date or such Removal Date, as the case may be.
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(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 such
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 Missouri and
the County Recorder of St. Louis County in the State of Missouri with
respect to DFS and the County Recorder of ▇▇▇▇ County in the State of
Georgia, in the case of Deutsche BSC 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 such Seller nor any
Person claiming through or under such Seller has any claim to or
interest in the Trust Assets.
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 Sellers
shall repurchase the Receivables, the Collateral Security and Floorplan
Rights respectively conveyed by them 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 pursuant to this Section 2.2 shall constitute the sole remedy
against such 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 Sellers
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Relating to the Receivables.
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(a) Representations and Warranties. Each Seller hereby represents and
warrants to the Buyer, with respect to the Receivables conveyed by such
Seller, that:
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(i) Each Receivable and all Collateral Security existing on the
first Closing 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 first Closing 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 such 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 Cut-Off Date and each Closing Date, each Initial
Account is an Eligible Account and, in the case of Additional
Accounts, on the applicable Additional Cut-Off Date and each
subsequent Closing Date, each such Additional Account is an Eligible
Account.
(iv) On the first Closing Date, in the case of the Initial
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 such 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 the related Receivables. If such Participation Agreement
was created after December 1, 1993, such Participation Agreement
states that the related undivided interest of such Seller 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 such Seller or the Buyer of a breach of any of the
representations and warranties
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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 a Seller or the Buyer, or receipt by
either Seller or the Buyer of written notice of any such event given by the
Trustee or any Enhancement Providers, the applicable Seller shall repurchase the
Receivable or Receivables 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 applicable 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 such 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 such Seller to effect the conveyance of such Receivables pursuant
to this Section. The obligation of such 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) Each 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 Automatic
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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) Each 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 such 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) Such Seller shall provide the Buyer and any Enhancement
Providers with a timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) Such 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) Such 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 such 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 such 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
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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.
(ix) Such Seller shall have delivered to the Buyer and any
Enhancement Providers a certificate of a Vice President or more senior
officer confirming the items set forth in paragraphs (ii) through (vi) and
(viii) above.
(x) On or before each Notice Date, such 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 less frequently than quarterly.
(c) Each 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 either 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 parties and to any
Enhancement Providers.
(d) Notwithstanding anything in this Section 2.4 to the contrary, the
additions of Additional Accounts pursuant to Section 2.5 on or prior to the
Closing Date for Series 1994-1 need not satisfy clause (i), (vi), (vii) or (x).
Section 2.5. Covenants of the Sellers. Each 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, such Seller will not sell, pledge, assign or
transfer to any other Person, or
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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 such 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 such Seller.
(b) Financing Agreements and Guidelines. Each Seller shall comply
with and perform its servicing obligations 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, such 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.
(c) Account Allocations. In the event that such Seller is unable
for any reason to transfer Receivables to the Buyer, then such 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 such Seller
receives Collections, such 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 such
Seller, but in no
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event later than two Business Days after the receipt by such Seller
thereof.
(e) Notice of Liens. Each Seller shall notify the Buyer and the
Trustee promptly after becoming aware of any Lien on any Receivable
conveyed by such Seller other that the conveyances hereunder or under
the Pooling and Servicing Agreement.
(f) Compliance with Law. Each Seller hereby agrees to comply in
all material respects with all Requirements of Law applicable to such
Seller.
(g) Concentration of Risk. In order to avoid a concentration of
the risks associated with participating its extensions of credit to
Dealers, each 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 such Seller does in creating
participation interests in receivables to be retained by such Seller.
(h) Limitation on Creation of Participation Interests. Such
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. Such Seller shall
perform its obligations 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 applicable 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). 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.
(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 applicable Seller (or the Servicer on its behalf) shall take the
following actions and make the following determinations:
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(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 such 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 such 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 shall deliver to the applicable Seller a
reassignment in substantially the form of Exhibit C (the "Reassignment").
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 applicable Seller shall
commence removal of the Receivables of such Ineligible Account in the manner
prescribed in Section 2.7(b).
(b) With respect to each Account that becomes an Ineligible Account,
the applicable Seller (or the Servicer on its behalf)
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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) 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) 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 such
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,
such 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 such Seller a Reassignment.
Section 2.8. Sale of Ineligible Receivables. Each Seller shall sell to
the Buyer on each Transfer Date any and all
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Receivables arising in any Eligible Accounts that are Ineligible 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. Acceptance of Appointment and Other Matters Relating to
the Servicer. (a) DFS agrees to act as the Servicer under this Agreement and the
Pooling and Servicing Agreement, and the Buyer consents to DFS acting as
Servicer. DFS will have ultimate responsibility for servicing, managing and
making collections on the Receivables and will have the authority to make any
management decisions relating to such Receivables, to the extent such authority
is granted to the Servicer under this Agreement and the Pooling and Servicing
Agreement.
(b) DFS shall service and administer the Receivables in accordance
with the revisions of the Pooling and Servicing Agreement.
Section 3.2. Servicing Compensation. As full compensation for its
servicing activities hereunder and under the Pooling and Servicing Agreement,
DFS 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 Sellers
-------------------------------------
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Section 5.1. Merger or Consolidation of, or Assumption of, the
Obligations of the Sellers. Neither Seller shall 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
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 a corporation 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
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 such Seller hereunder;
and
(b) such Seller has delivered to the Buyer and the Trustee an
Officers' Certificate and an Opinion of Counsel 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.
Section 5.2. Sellers' Indemnification of the Buyer. Each 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 such Seller
pursuant to this Agreement arising out of or based on the arrangement created by
this Agreement and the activities of such 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 such 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.
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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 a Seller nor shall a Seller designate Additional
Accounts if such 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
such 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 such 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 such 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, such 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 such 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, such Seller shall immediately
cease selling Receivables to the Buyer and the Buyer shall immediately cease
buying Receivables. Each 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
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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 Sellers and the Buyer; provided, however, that such action shall
not, as evidenced by an Opinion of Counsel for the Sellers addressed and
delivered to the Trustee, adversely affect in any material respect the interests
of any Investor Certificateholder.
(b) This Agreement may also be amended from time to time by the Buyer
and the Sellers 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 Sellers; 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 shall be deemed to materially adversely affect all outstanding
Series, other than any Series with respect to which such action shall not, as
evidenced by an Opinion of Counsel for the Sellers, 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 Sellers shall furnish
notification of the substance of such amendment to each Investor
Certificateholder, each Enhancement Provider, each Agent and each Rating Agency.
-19-
(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.
(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.
(f) Deutsche BSC ratifies and affirms, and shall be a party to, that
certain amendment dated as of January 24, 1996 among DFS, the Buyer and the
Trustee.
Section 7.2. Protection of Right, Title and Interest to Receivables.
(a) The Sellers 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. Each 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 Sellers 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 a 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 Section 9-402(7) of the UCC as in effect in the
State of Missouri or the State of Georgia, as applicable, or such other
applicable jurisdiction, such 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) Each 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 security
interest in the Receivables and the proceeds
-20-
thereof. Each Seller will at all times maintain its principal executive offices
within the United States of America.
(d) Each Seller will deliver to the Buyer upon the execution and
delivery of each amendment of this Agreement, an Opinion of Counsel to the
effect specified in Exhibit B.
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 Partnership 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. Each Seller hereby covenants and agrees
that it will not at any time institute against the Buyer or Deutsche FRI any
bankruptcy, reorganization, 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 LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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 the parties at such addresses specified in the Pooling and Servicing
Agreement.
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.
-21-
Section 7.8. Assignment. Notwithstanding anything to the contrary
contained herein, this Agreement may not be assigned by either 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. Each 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 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. Continued Effectiveness of the Receivables Contribution
and Sale Agreement. As amended and restated hereby,
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the Receivables Contribution and Sale Agreement shall continue to be in full
force and effect and is hereby ratified and confirmed in all respects.
-23-
IN WITNESS WHEREOF, the Sellers and the Buyer have caused this
Receivables Contribution and Sale Agreement to be duly executed by their
respective officers as of the day and year first above written.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.,
Buyer
By: DEUTSCHE FLOORPLAN RECEIVABLES, INC.,
its general partner
By: ________________________________
Name: __________________________
Title: ________________________
By: ________________________________
Name: __________________________
Title: ________________________
DEUTSCHE FINANCIAL SERVICES
CORPORATION, Seller
By: ________________________________
Name: __________________________
Title: ________________________
By: ________________________________
Name: __________________________
Title: ________________________
DEUTSCHE BUSINESS SERVICES
CORPORATION, Seller
By: ________________________________
Name: __________________________
Title: ________________________
By: ________________________________
Name: __________________________
Title: ________________________
-24-
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 buyer (the "Buyer"), and [Deutsche Financial Services
Corporation], [Deutsche Business Services Corporation] as seller [contributor]
(the "Seller"), pursuant to the Receivables Contribution and Sale Agreement
referred to below.
W I T N E S S E T H:
WHEREAS the DFS, Deutsche BSC and the Buyer are parties to a
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 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, ___________, 19___.
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
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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
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 Section 9-306 of the UCC as in effect in the [State of
Missouri] [State of Georgia] 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 Section 9-105 or 9-106 of the UCC as in
effect in any state where the Seller's or the Servicer's chief executive offices
or books and records relating to the Receivables are located) 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] [contributions].
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(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) 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 corporation
duly organized and validly existing and in good standing under the law
of the State of its incorporation and has, in all material respects,
full corporate 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
corporation (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
A-3
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 [Missouri] [and other applicable
states and counties] 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 corporation 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 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
A-4
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 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.
A-5
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) 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 LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT
OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-6
IN WITNESS WHEREOF, the Seller and the Buyer have caused this
Assignment to be duly executed and delivered by their respective duly authorized
officers as of the day and the year first above written.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.,
as Buyer
By: DEUTSCHE FLOORPLAN RECEIVABLES, INC.,
its general partner
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
[DEUTSCHE FINANCIAL SERVICES
CORPORATION], as Seller
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
[DEUTSCHE BUSINESS SERVICES
CORPORATION], as Seller
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
A-7
EXHIBIT B
TO RCSA
FORM OF OPINION OF COUNSEL
(As required by Section 7.2(d) of
---------------------------------
the Receivables Contribution and Sale Agreement)
------------------------------------------------
(a) The Amendment to the Receivables Contribution and Sale Agreement,
attached hereto as Schedule 1 (the "Amendment"), has been duly authorized,
executed and delivered by each Seller and constitutes the legal, valid and
binding agreement of each Seller, enforceable in accordance with its terms
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally from time to time in effect. The enforceability of each
Seller's obligations is also subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
(b) The Amendment has been entered into in accordance with the terms
and provisions of Section 7.1 of the Receivables Contribution and Sale
Agreement.
(c) The Amendment will not adversely affect in any material respect
the interests of the Investor Certificateholders. [Include this clause (iii)
only in the case of amendments effected pursuant to Section 7.1(a) of the
Receivables Contribution and Sale Agreement.]
B-1
EXHIBIT C
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
buyer (the "Buyer"), and DEUTSCHE FINANCIAL SERVICES CORPORATION
[or DEUTSCHE BUSINESS SERVICES CORPORATION), as seller (the
"Seller"), pursuant to the Receivables Contribution and Sale
Agreement referred to below.
WITNESSETH
WHEREAS the Seller and the Buyer are parties 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 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
C-1
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.
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 Section 9-306 of the UCC as
in effect in the State of Missouri [Georgia] and Recoveries) thereof relating
thereto.
(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,
C-2
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 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
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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 LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the undersigned have caused this Reassignment to be
duly executed and delivered by their respective duly authorized officers on the
day and year first above written.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.,
Buyer
By: DEUTSCHE FLOORPLAN RECEIVABLES, INC.,
its general partner
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
[DEUTSCHE FINANCIAL SERVICES
CORPORATION, Seller]
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
[DEUTSCHE BUSINESS SERVICES
CORPORATION, Seller]
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
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Schedule 1
----------
List of Accounts
----------------
[Deemed to be incorporated.]