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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported) June 28, 1999
Deutsche Floorplan Receivables, L.P.
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(Exact Name of Registrant as Specified in its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation)
333-10943 88-0355652
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(Commission File Number) (I.R.S. Employer Identification No.)
655 Maryville Centre Drive, St. Louis, Missouri 63141
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(Address of Principal Executive Offices) (Zip Code)
(314) 523-3000
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(Registrant's Telephone Number, Including Area Code)
Not Applicable
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(Former Name or Former Address, if Changed Since Last Report)
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<PAGE>
Item 5. Other Events.
On June 28, 1999, the name of Deutsche Floorplan Receivables Master Trust
was changed to "Distribution Financial Services Floorplan Master Trust" (the
"Trust"). In addition, on June 28, 1999, the Trust issued a new series
designated as the "Floating Rate Asset Backed Certificates, Series 1999-1." The
Series 1999-1 Supplement and the Certificate Purchase Agreement relating to such
series are filed as exhibits to this report.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
Exhibit
No. Document Description
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99.1 Series 1999-1 Supplement
99.2 Certificate Purchase Agreement
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
(Registrant)
By Deutsche Floorplan Receivables, Inc.,
its general partner
Dated: July 8, 1999 By: /s/ Richard C. Goldman
-----------------------------------
Name: Richard C. Goldman
Title: Senior Vice President
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<PAGE>
EXHIBIT 99.1
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DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
Seller
DEUTSCHE FINANCIAL SERVICES CORPORATION
Servicer
and
THE CHASE MANHATTAN BANK
Trustee
-------------------------------------
SERIES 1999-1 SUPPLEMENT
Dated as of June 1, 1999
to
POOLING AND SERVICING AGREEMENT
Amended and Restated as of October 1, 1996
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DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
SERIES 1999-1
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<PAGE>
TABLE OF CONTENTS
<TABLE>
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Page
ARTICLE I
Creation of the Series 1999-1 Certificates
<C> <S> <C>
SECTION 1.1. Designation................................................. 1
SECTION 1.2. Issuance of Series 1999-1 Certificates...................... 1
ARTICLE II
Definitions
SECTION 2.1. Definitions................................................. 1
SECTION 2.2. Business Day Certificate.................................... 12
ARTICLE III
Servicing Fee
SECTION 3.1. Servicing Compensation...................................... 13
ARTICLE IV
Rights of Series 1999-1 Certificateholders and
Allocation and Application of Collections
SECTION 4.1. Allocations................................................. 14
SECTION 4.2. Determination of Interest................................... 14
SECTION 4.3. Weekly Principal............................................ 15
SECTION 4.4. Series 1999-1 Accounts...................................... 15
SECTION 4.5. Deficiency Amount........................................... 17
SECTION 4.6. Application of Series 1999-1 Non-Principal Collections,
Investment Proceeds and Available Series 1999-1
Principal Collections....................................... 18
SECTION 4.7. Distributions to Series 1999-1 Certificateholders............. 20
SECTION 4.8. Application of Reserve Fund and Available Subordinated
Amount...................................................... 21
SECTION 4.9. Series 1999-1 Charge-Offs................................... 22
SECTION 4.10. Excess Servicing............................................ 23
ARTICLE V
Distribution and Reports to
Series 1999-1 Certificateholders
SECTION 5.1. Distributions............................................... 23
SECTION 5.2. Reports and Statements to Series 1999-1 Certificateholders.. 23
</TABLE>
i
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<TABLE>
<CAPTION>
<C> <S> <C>
SECTION 5.3. Notice as to Overconcentration Amount........................ 24
ARTICLE VI
Early Amortization Events
SECTION 6.1. Additional Early Amortization Events......................... 24
ARTICLE VII
Optional Repurchase
SECTION 7.1. Optional Repurchase.......................................... 25
ARTICLE VIII
Final Distributions
SECTION 8.1. Sale of Certificateholders' Interest Pursuant to
Section 2.3 of the Agreement; Distributions Pursuant to
Section 7.1 of this Series Supplement or Section 2.3 or
12.2(c) of the Agreement..................................... 25
SECTION 8.2. Distribution of Proceeds of Sale, Disposition or
Liquidation of the Receivables Pursuant to Section 9.2
of the Agreement............................................. 26
ARTICLE IX
Miscellaneous Provisions
SECTION 9.1. Name of Trust................................................ 27
SECTION 9.2. Ratification of Agreement.................................... 28
SECTION 9.3. Counterparts................................................. 28
SECTION 9.4. Governing Law................................................ 28
SECTION 9.5. Waiver....................................................... 28
SECTION 9.6. The Trustee.................................................. 28
SECTION 9.7. Instructions in Writing...................................... 28
SECTION 9.8. Initial Funding of Reserve Fund.............................. 28
SECTION 9.9. Restrictions on Transfer of Series 1999-1 Certificates....... 28
SECTION 9.10. Deposits in Collection Account............................... 30
SECTION 9.11. Notice of Issuance........................................... 30
SECTION 9.12. Severability; Certificate Rate Limitation.................... 30
SECTION 9.13. Headings..................................................... 31
EXHIBITS
Exhibit A Form of Series 1999-1 Certificate
Exhibit B Distribution Date Statement
Exhibit C Investment Letter
</TABLE>
ii
<PAGE>
SCHEDULES
Schedule 1 Series 1999-1 Accounts
Schedule 2 Certain Terms Used in the Definition of
Specified Available Subordination Amount
iii
<PAGE>
SERIES 1999-1 SUPPLEMENT dated as of June 1, 1999 (this "Series
Supplement") among DEUTSCHE FLOORPLAN RECEIVABLES, L.P., a Delaware limited
partnership, as Seller, DEUTSCHE FINANCIAL SERVICES CORPORATION, a Nevada
corporation, as Servicer, and THE CHASE MANHATTAN BANK, a New York banking
corporation, as Trustee.
Pursuant to Section 6.3 of the Pooling and Servicing Agreement, dated as of
December 1, 1993, amended and restated as of March 1, 1994, further amended as
of January 24, 1996 and amended and restated as of October 1, 1996 (as the same
may be further amended, amended and restated or otherwise modified from time to
time, the "Agreement" or the "Pooling and Servicing Agreement"), among the
Seller, the Servicer and the Trustee, the Seller may from time to time direct
the Trustee to issue, on behalf of the Trust, one or more new Series of Investor
Certificates. The Principal Terms of any new Series are to be set forth in a
Supplement to the Agreement.
Pursuant to this Series Supplement, the Seller and the Trustee shall create
a new Series of Investor Certificates and specify the Principal Terms thereof.
ARTICLE I
Creation of the Series 1999-1 Certificates
------------------------------------------
SECTION 1.1. Designation. (a) There is hereby created a Series of
Investor Certificates to be issued pursuant to the Agreement and this Series
Supplement to be known as the "Floating Rate Asset Backed Certificates, Series
1999-1," which shall consist of one Class.
(b) In the event that any term or provision contained herein shall
conflict with or be inconsistent with any term or provision contained in the
Agreement, the terms and provisions of this Series Supplement shall govern.
SECTION 1.2. Issuance of Series 1999-1 Certificates. On the Closing Date
and from time to time thereafter until the end of the Commitment Period, subject
to the terms of the Certificate Purchase Agreement, the Trustee shall
authenticate and deliver Series 1999-1 Certificates to or upon the order of the
Seller, which order may be given under manual or facsimile signature; provided
that the maximum outstanding principal balance of all Series 1999- 1
Certificates (giving effect to payments in reduction of the outstanding
principal balance of the Series 1999-1 Certificates under this Series
Supplement) shall not exceed the Maximum Funding Amount.
ARTICLE II
Definitions
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SECTION 2.1. Definitions. (a) Whenever used in this Series Supplement the
following words and phrases shall have the following meanings:
<PAGE>
"Accrual Period" shall mean, with respect to any Principal Reduction Date
(the "current Principal Reduction Date"), the period from (but excluding) the
second Business Day prior to the Principal Reduction Date immediately preceding
the current Principal Reduction Date to and including the second Business Day
prior to the current Principal Reduction Date; provided that the first Accrual
Period shall be the period from and including the Closing Date to and including
July 6, 1999; provided, further, that the first Principal Reduction Date shall
be July 8, 1999.
"Additional Amounts" shall have the meaning specified in the Certificate
Purchase Agreement.
"Additional Base Rate Interest" shall have the meaning specified in Section
4.2(c).
"Additional CP Interest" shall have the meaning specified in Section
4.2(b).
"Additional Early Amortization Event" shall have the meaning specified in
Section 6.1.
"Additional Interest" shall mean Additional Base Rate Interest, Additional
CP Interest or Additional LIBO Interest, as the case may be.
"Additional LIBO Interest" shall have the meaning specified in Section
4.2(d).
"Administrative Agent" shall have the meaning set forth in the Certificate
Purchase Agreement.
"Allocable Miscellaneous Payments" shall mean, with respect to any
Principal Reduction Date, the product of (a) the Series 1999-1 Allocation
Percentage for the Collection Period in which such Principal Reduction Date
occurs and (b) Miscellaneous Payments with respect to the Accrual Period ending
immediately prior to such Principal Reduction Date.
"Available Seller's Collections" shall mean, with respect to any Deposit
Date, the sum of (a) the Available Seller's Non-Principal Collections for such
Deposit Date and (b) the Available Seller's Principal Collections for such
Deposit Date; provided, however, that the Available Seller's Collections shall
be zero for any Collection Period with respect to which the Available
Subordinated Amount is zero on the Determination Date immediately following the
end of such Collection Period.
"Available Seller's Non-Principal Collections" shall mean, with respect to
any Deposit Date, an amount equal to the result obtained by multiplying (a) the
excess of (i) the Seller's Percentage for the related Collection Period over
(ii) the Excess Seller's Percentage for such Collection Period by (b) Non-
Principal Collections for such Deposit Date.
"Available Seller's Principal Collections" shall mean, with respect to any
Deposit Date, an amount equal to the result obtained by multiplying (a) the
excess of (i) the Seller's Percentage for the related Collection Period over
(ii) the Excess Seller's Percentage for such Collection Period by (b) Principal
Collections for such Deposit Date.
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<PAGE>
"Available Series 1999-1 Principal Collections" shall mean, with respect to
any Principal Reduction Date, the sum of (a) an amount equal to Series 1999-1
Principal Collections for the related Accrual Period, (b) Allocable
Miscellaneous Payments, if any, with respect to such Principal Reduction Date
and (c) on and after the Termination Date, any funds in the Reserve Fund after
giving effect to Section 4.8.
"Available Subordinated Amount" shall mean, as of any Determination Date,
the result of (a) the sum of the Specified Available Subordination Amounts,
minus (b) the aggregate of the Required Subordination Draw Amounts for all
preceding Distribution Dates to the extent provided in Section 4.8.
"Base Rate" shall mean a rate per annum equal to the corporate base rate,
prime rate or base rate of interest, as applicable, announced by FNBC from time
to time, changing when and as such rate changes.
"Base Rate Interest Amount" shall mean, with respect to any Distribution
Date, the summation, with respect to each Base Rate Tranche outstanding during
the immediately preceding Collection Period, for each day during such Collection
Period, of the result of (a) the product of the Base Rate applicable to such
Base Rate Tranche on such day, and (ii) the portion of the Invested Amount, if
any, allocated to such Base Rate Tranche on such day, divided by (b) 365.
"Base Rate Interest Shortfall" shall have the meaning specified in Section
4.2(c).
"Base Rate Tranche" shall mean the portion of the Invested Amount, if any,
for which interest is calculated by reference to the Base Rate in accordance
with the Certificate Purchase Agreement.
"Benefit Plan" shall have the meaning specified in Section 9.9.
"Business Day" means any day (other than a Saturday or a Sunday) on which
banks are not authorized or obligated (by law, executive order or governmental
decree) to close in New York, New York, St. Louis, Missouri or Chicago,
Illinois, and, if the applicable Business Day relates to any computation or
payment to be made with respect to the LIBO Rate, any day on which dealings in
dollar deposits are carried on in the London interbank market.
"Certificate Assignment" shall mean any sale, assignment or transfer of a
Series 1999-1 Certificate.
"Certificate Purchase Agreement" shall mean that certain Certificate
Purchase Agreement dated as of the Closing Date among the Seller, the Servicer,
the Conduit Purchasers party thereto, the Administrative Agent, and FNBC as
Committed Purchaser, as the same may be amended, amended and restated or
otherwise modified from time to time.
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<PAGE>
"Certificate Rate" shall mean the Base Rate, the CP Rate or the LIBO Rate,
as the case may be.
"Certificateholders" shall mean the Series 1999-1 Certificateholders.
"Certificateholders' Monthly Servicing Fee" shall have the meaning
specified in Section 3.1.
"Certificates" shall mean the Series 1999-1 Certificates.
"Closing Date" shall mean June 28, 1999.
"Commercial Paper" shall have the meaning specified in the Certificate
Purchase Agreement.
"Commitment Fee" shall have the meaning specified in the Fee Letter.
"Commitment Period" shall mean the period beginning at the opening of
business on the Closing Date and ending on the earliest to occur of: (i) the
issuance of a new Series of Investor Certificates in the term asset-backed
securities market; (ii) the date designated in a notice from the Seller to the
Trustee and the Administrative Agent as the "Commitment Period Termination
Date", which notice shall be given not less than two Business Days prior to such
"Commitment Period Termination Date"; (iii) the Overconcentration Termination
Date (as such term is defined in clause (c) of the definition of Specified
Available Subordination Amount); (iv) December 31, 1999; and (v) the close of
business on the day an Early Amortization Period commences; provided, however,
that, if any Early Amortization Period ends as described in clause (c) of the
definition of Early Amortization Period in the Agreement, the Commitment Period
shall recommence as of the close of business on the day such Early Amortization
Period ends.
"Conduit Purchasers" shall have the meaning specified in the Certificate
Purchase Agreement.
"CP Interest Amount" shall mean, with respect to any Distribution Date, the
summation, with respect to each CP Tranche outstanding during the immediately
preceding Collection Period, for each day during such Collection Period, of the
result of (a) the product of (i) the CP Rate applicable to such CP Tranche, and
(ii) the portion of the Invested Amount, if any, allocated to such CP Tranche on
such day, divided by (b) 360.
"CP Interest Shortfall" shall have the meaning specified in Section 4.2.
"CP Rate" means, with respect to each Conduit Purchaser, the sum of (i)
twenty-five basis points (0.25%) per annum, plus (ii) the per annum rate,
equivalent to the rate (or if more than one rate, the weighted average of the
rates) at which Commercial Paper having a term equal to the relevant CP Tranche
Period may be sold by any placement agent or commercial paper
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<PAGE>
dealer reasonably selected by such Conduit Purchaser, as agreed between each
such dealer or agent and such Conduit Purchaser, plus the amount of any
placement agent or commercial paper dealer fees incurred in connection with such
sale and other costs associated with funding small or odd-lot amounts; provided,
that if the rate (or any of the rates) as agreed between any such agent or
dealer and such Conduit Purchaser is a discount rate (or rates), then clause
(ii) of the "CP Rate" for such CP Tranche Period shall be the rate (or if more
than one rate, the weighted average of the rates) result from converting such
discount rate (or rates) to an interest-bearing equivalent rate per annum.
"CP Tranche" shall mean the portion of the Invested Amount, if any, for
which interest is calculated by reference to a CP Rate (and determined by
reference to a particular CP Tranche Period) in accordance with the Certificate
Purchase Agreement.
"CP Tranche Period" shall mean, with respect to any CP Tranche, a period of
days not to exceed 90 days commencing on a Business Day selected pursuant to the
Certificate Purchase Agreement, provided that
(1) if any CP Tranche Period would otherwise end on a day that is not
a Business Day, such CP Tranche Period shall be extended to the next
succeeding Business Day;
(2) any CP Tranche Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
(3) any CP Tranche Period that begins during the Early Amortization
Period shall be of such duration (not to exceed 90 days) as may be
specified by the Administrative Agent.
"Deficiency Amount" shall have the meaning specified in Section 4.5.
"Deposit Date" shall mean the Business Day prior to a Distribution Date.
"Distribution Date Statement" shall have the meaning specified in Section
5.2(a).
"Early Amortization Event" shall mean any Early Amortization Event
specified in Section 9.1 of the Agreement, together with any Additional Early
Amortization Event specified in Section 6.1 of this Series Supplement.
"Early Amortization Period" shall mean an Early Amortization Period (as
defined in the Agreement) with respect to Series 1999-1.
"Eligible Deposit Account" shall mean (a) a segregated account with an
Eligible Institution, (b) a segregated trust account with the corporate trust
department of a depository institution or trust company organized under the laws
of the United States of America or any one
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<PAGE>
of the states thereof, including the District of Columbia (or any domestic
branch of a foreign bank), having corporate trust powers and acting as trustee
for funds deposited in such account, so long as any of the securities of such
depository institution or trust company shall have a credit rating from each
Rating Agency in one of its rating categories which signifies investment grade,
or (c) a segregated account with Deutsche Bank AG, New York Branch.
"Excess Seller's Percentage" shall mean, with respect to any Collection
Period, a percentage (which percentage shall never be less than 0% nor more than
100%) equal to (a) when used with respect to Non-Principal Collections and
Defaulted Receivables, 100% minus the sum of (i) the Floating Allocation
Percentage with respect to such Collection Period plus the sum of the floating
allocation percentages for all outstanding Series (other than Series 1999-1) for
such Collection Period and (ii) the percentage equivalent of a fraction, the
numerator of which is the sum of the Available Subordinated Amount as of the
Determination Date occurring in such Collection Period plus the sum of the
aggregate available subordinated amounts for all outstanding Series (other than
Series 1999-1) as of such Determination Date (in each case, after giving effect
to the allocations, distributions, withdrawals and deposits to be made on the
Distribution Date immediately following such Determination Date), and the
denominator of which is the Pool Balance as of the last day of the immediately
preceding Collection Period or (b) when used with respect to Principal
Collections, 100% minus the sum of (i) the Floating Allocation Percentage plus
the floating allocation percentages for all outstanding Series (other than
Series 1999-1) that are in their revolving periods with respect to such
Collection Period plus the sum of the Principal Allocation Percentage plus the
principal allocation percentages for all outstanding Series (other than Series
1999-1) that are not in their revolving periods with respect to such Collection
Period and (ii) the percentage equivalent of a fraction, the numerator of which
is the sum of the Available Subordinated Amount as of the Determination Date
occurring in such Collection Period plus the sum of the aggregate available
subordinate amounts for all outstanding Series (other than Series 1999-1) as of
such Determination Date (in each case, after giving effect to the allocations,
distributions, withdrawals and deposits to be made on the Distribution Date
immediately following such Determination Date), and the denominator of which is
the Pool Balance as of the last day of such immediately preceding Collection
Period.
"Excess Servicing" shall mean, with respect to any Distribution Date, the
amount, if any, specified pursuant to Section 4.6(a)(ix), with respect to such
Distribution Date.
"Fee Letter" shall have the meaning set forth in the Certificate Purchase
Agreement.
"Floating Allocation Percentage" shall mean, with respect to any Collection
Period, the percentage equivalent (which percentage shall never exceed 100%) of
a fraction, the numerator of which is the Invested Amount as of the last day of
the immediately preceding Collection Period and the denominator of which is the
Pool Balance as of such last day; provided, however, that, with respect to the
Collection Period in which the Closing Date occurs, the Floating Allocation
Percentage shall mean the percentage equivalent of a fraction, the numerator of
which
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<PAGE>
is the sum of the initial principal balances of the Series 1999-1 Certificates
on the Closing Date and the denominator of which is the Pool Balance on the
Closing Date.
"FNBC" means The First National Bank of Chicago, a national banking
association, and its successors.
"Indebtedness" of a Person means such Person's (i) obligations for borrowed
money, (ii) obligations representing the deferred purchase price of property or
services (other than accounts payable arising in the ordinary course of such
Person's business payable on terms customary in the trade), (iii) obligations,
whether or not assumed, secured by liens or payable out of the proceeds or
production from property now or hereafter owned or acquired by such Person, (iv)
obligations which are evidenced by notes, acceptances, or other instruments, (v)
capitalized lease obligations, and (vi) net liabilities under interest rate
swap, exchange or cap agreements.
"Initial Invested Amount" shall mean the Maximum Funding Amount.
"Interest Funding Account" shall have the meaning specified in Section
4.4(b).
"Interest Period" shall mean, with respect to any Distribution Date, the
immediately preceding Collection Period (or, in the case of the first
Distribution Date, the period from and including the Closing Date to and
including the last day of the Collection Period in which the Closing Date
occurred).
"Invested Amount" shall mean, for any date, an amount equal to the sum of
(a) the outstanding principal balances of the Series 1999-1 Certificates, minus
(b) the aggregate amount of payments made to Series 1999-1 Certificateholders in
reduction of the outstanding principal balances of the Series 1999-1
Certificates prior to such date, minus (c) the aggregate amount of all
unreimbursed Series 1999-1 Charge-Offs.
"Investment Letter" shall have the meaning specified in Section 9.9.
"Investment Proceeds" shall mean, with respect to any Distribution Date,
all interest and other investment earnings (net of losses and investment
expenses) on funds on deposit in the Series 1999-1 Accounts, together with an
amount equal to the Series 1999-1 Allocation Percentage of the interest and
other investment earnings on funds held in the Collection Account credited as of
the related Determination Date to the Collection Account pursuant to Section 4.2
of the Agreement.
"LIBO Interest Amount" shall mean, with respect to any LIBO Payment Date
and any related LIBO Tranche, the summation, for each LIBO Tranche Period ending
on such LIBO Payment Date, of the result of (a) the product of (i) the LIBO Rate
applicable to such LIBO Tranche, (ii) the portion of the Invested Amount, if
any, allocated to such LIBO Tranche during such LIBO Tranche Period, and (iii)
the number of days in such LIBO Tranche Period, divided by (b) 360.
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<PAGE>
"LIBO Interest Shortfall" shall have the meaning specified in Section 4.2.
"LIBO Payment Date" shall mean, with respect to any LIBO Tranche and the
related LIBO Tranche Period, the last day of such LIBO Tranche Period.
"LIBO Payment Date Statement" shall have the meaning specified in Section
5.2.
"LIBO Rate" shall mean the rate per annum equal to the sum of (i) the rate
at which deposits in U.S. dollars are offered by FNBC to first class banks in
the London interbank market at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of the relevant LIBO Tranche Period, such
deposits being in the approximate amount of the Invested Amount to be funded or
maintained at such LIBO Rate in accordance with the Certificate Purchase
Agreement, plus (ii) one-half of one percent (0.50%) per annum.
"LIBO Tranche" shall mean the portion of the Invested Amount, if any, for
which interest is calculated by reference to a LIBO Rate (and determined by
reference to a particular LIBO Tranche Period) in accordance with the
Certificate Purchase Agreement.
"LIBO Tranche Period" shall mean, with respect to any LIBO Tranche, a
period of up to three months commencing on a Business Day selected pursuant to
the Certificate Purchase Agreement, provided that
(1) if any LIBO Tranche Period would otherwise end on a day that is
not a Business Day, such LIBO Tranche Period shall be extended to the next
succeeding Business Day (unless the result of such extension would be to
carry such LIBO Tranche Period into another calendar month, in which event
such LIBO Tranche Period shall end on the immediately preceding Business
Day);
(2) any LIBO Tranche Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date;
(3) any LIBO Tranche Period that begins during the Early Amortization
Period shall be of such duration (not to exceed 90 days) as may be selected
by the Administrative Agent; and
(4) any LIBO Tranche Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such LIBO Tranche Period) shall end
on the last Business Day of the applicable future calendar month.
"Maximum Funding Amount" shall mean one billion five hundred million
dollars ($1,500,000,000), as such amount may be increased or decreased from time
to time in accordance with Section 2.05 of the Certificate Purchase Agreement
(which increase or decrease shall be certified in an Officers' Certificate of
the Seller delivered to the Trustee).
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<PAGE>
"Monthly Interest" shall mean, for any Distribution Date, the sum of the CP
Interest Amount plus the Base Rate Interest Amount, if any, for such
Distribution Date.
"Monthly Servicing Fee" shall have the meaning specified in Section 3.1.
"Participant" shall have the meaning specified in Section 11.04 of the
Certificate Purchase Agreement.
"Principal Allocation Percentage" shall mean, with respect to any
Collection Period, the percentage equivalent (which percentage shall never
exceed 100%) of a fraction, the numerator of which is the Maximum Funding Amount
and the denominator of which is the Pool Balance as of the last day of the
immediately preceding Collection Period.
"Principal Determination Date" means the Business Day prior to a Principal
Reduction Date.
"Principal Funding Account" shall have the meaning specified in Section
4.4(c).
"Principal Reduction Date" shall mean each Thursday or, if a particular
Thursday is not a Business Day, the first Business Day following such Thursday.
The "related" Principal Reduction Date in respect of an Accrual Period shall be
the first Principal Reduction Date after such Accrual Period.
"Rating Agency Condition" shall have the meaning specified in the
Agreement; provided that the Rating Agency Condition shall be applicable only at
such times as there remain outstanding any Series or Class which has been rated
by the Rating Agencies.
"Reassignment Amount" shall mean, with respect to any Distribution Date,
after giving effect to any deposits and distributions otherwise to be made on
such Distribution Date, the sum of (i) the Invested Amount on such Distribution
Date, (ii) accrued and unpaid Monthly Interest and LIBO Interest Amounts, (iii)
to the extent permitted by applicable law, the amount of any accrued and unpaid
Additional Interest, and (iv) to the extent permitted by applicable law, the
amount of any accrued and unpaid Additional Amounts.
"Required Participation Percentage" shall mean, with respect to Series
1999-1, 105%.
"Required Subordination Draw Amount" shall mean, for a Distribution Date,
the lesser of (x) the Deficiency Amount and (y) the Available Subordinated
Amount for the related Determination Date.
"Reserve Fund" shall have the meaning specified in Section 4.4(a).
"Reserve Fund Deposit Amount" shall mean, with respect to any Distribution
Date, the amount, if any, by which (i) the Reserve Fund Required Amount for such
Distribution Date
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<PAGE>
exceeds (ii) the amount of funds in the Reserve Fund after giving effect to any
withdrawals therefrom on such Distribution Date.
"Reserve Fund Required Amount" shall mean, with respect to any Distribution
Date, an amount equal to the product of (a) two percent (2%) and (b) the
aggregate outstanding principal balance of the Certificates as of such
Distribution Date (after giving effect to any changes therein on such
Distribution Date).
"Revolving Period" for purposes of Series 1999-1 shall mean the Commitment
Period.
"Seller's Collections" shall mean, with respect to any Collection Period,
the sum of (a) the Seller's Percentage of Non-Principal Collections for such
Collection Period, plus (b) the Seller's Percentage of Principal Collections for
such Collection Period.
"Seller's Percentage" for any Collection Period shall mean (i) with respect
to Non- Principal Collections and Defaulted Receivables, 100% minus the
aggregate of the Floating Allocation Percentage plus the floating allocation
percentages for each outstanding Series (other than Series 1999-1) and (ii) with
respect to Principal Collections, 100% minus the sum of (a) the aggregate of the
Floating Allocation Percentage plus the floating allocating percentages for all
outstanding Series (other than Series 1999-1) in their revolving periods and (b)
the aggregate of the Principal Allocation Percentage plus the principal
allocation percentages for all outstanding Series (other than Series 1999-1)
that are not in their revolving periods, but in any case shall not be less than
0%.
"Series 1999-1" shall mean the Series 1999-1 Certificates.
"Series 1999-1 Accounts" shall have the meaning specified in Section
4.4(d).
"Series 1999-1 Allocation Percentage" for any Collection Period shall mean
the percentage equivalent of a fraction, the numerator of which is the Invested
Amount on the last Business Day of the preceding Collection Period and the
denominator of which is the Trust Invested Amount on such last Business Day.
"Series 1999-1 Certificateholders" shall mean the Holders of the Series
1999-1 Certificates.
"Series 1999-1 Certificateholders' Interest" shall mean that portion of the
Certificateholders' Interest evidenced by the Series 1999-1 Certificates.
"Series 1999-1 Certificates" shall mean any one of the "Floating Rate Asset
Backed Certificates, Series 1999-1" executed by the Seller and authenticated by
the Trustee from time to time, substantially in the form of Exhibit A.
"Series 1999-1 Charge-Off" shall have the meaning specified in Section 4.9.
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"Series 1999-1 Default Amount" shall mean, with respect to any Distribution
Date, an amount equal to the product of (a) the Defaulted Amount for the related
Collection Period and (b) the Floating Allocation Percentage for such Collection
Period.
"Series 1999-1 Non-Principal Collections" shall mean, with respect to any
Distribution Date, an amount equal to the product of (i) the Floating Allocation
Percentage for the related Collection Period and (ii) Non-Principal Collections
for such Collection Period.
"Series 1999-1 Principal Collections" shall mean, with respect to any
Accrual Period and the related Principal Reduction Date, the sum of (a) the
product of (i) the Principal Allocation Percentage in effect on the first day of
such Accrual Period and (ii) Principal Collections for the period prior to the
Principal Determination Date in such Accrual Period but on and after the
Principal Determination Date in the immediately preceding Accrual Period and (b)
the amount, if any, of Non-Principal Collections, funds in the Reserve Fund,
Excess Servicing and Available Seller's Collections to be allocated in each case
to cover the Series 1999-1 Default Amount or reimburse Series 1999-1 Charge-Offs
pursuant to Section 4.6(a)(vi) or 4.8(b) (to the extent Section 4.8(b) relates
to a shortfall in distributions pursuant to Section 4.6(a)(vi) on the
Distribution Date immediately preceding such Principal Reduction Date); provided
that if the sum of the Principal Allocation Percentage and the principal
allocation percentages for all other outstanding Series (or the floating
allocation percentages, if other series are using floating allocation
percentages to make allocations in respect of Principal Collections) exceeds
100%, then Principal Collections shall be allocated among all Series (including
Series 1999-1) pro rata on the basis of such floating allocation percentages,
principal allocation percentages and the Principal Allocation Percentage.
"Servicing Fee Rate" shall mean, with respect to Series 1999-1, two percent
(2%) or, for any Distribution Date in respect of which the Monthly Servicing Fee
has been waived, zero percent (0%).
"Specified Available Subordination Amount," with respect to a Series 1999-1
Certificate, shall be determined as follows:
(a) If as of the Determination Date immediately preceding the date that a
Series 1999-1 Certificate is issued, the Overconcentration Amount is zero or a
Tier-1 Overconcentration (as defined in Schedule 2 hereto) exists, then the
Specified Available Subordination Amount for such Series 1999-1 Certificate
shall equal the result of (i) two and one-half percent (2.5%) multiplied by (ii)
the principal amount of such Series 1999-1 Certificate on such date of issuance.
(b) If as of the Determination Date immediately preceding the date that a
Series 1999-1 Certificate is issued, a Tier-2 Overconcentration (as defined in
Schedule 2 hereto) exists, then the Specified Available Subordination Amount for
such Series 1999-1 Certificate shall equal the result of (i) three percent (3%)
multiplied by (ii) the principal amount of such Series 1999-1 Certificate on
such date of issuance.
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(c) If as of the Determination Date immediately preceding the date that a
Series 1999-1 Certificate is issued, a Tier-3 Overconcentration (as defined in
Schedule 2 hereto) exists, then the Transferor and the Administrative Agent
shall enter into good faith negotiations in order to determine an appropriate
amount of credit enhancement for the benefit of such Series 1999-1 Certificate;
provided that if the Transferor and the Administrative Agent do not reach a
mutually satisfactory agreement with respect to such credit enhancement within
ten (10) Business Days after such issuance date, then the Commitment Period
shall terminate on such tenth (10th) Business Day (such tenth (10th) Business
Day being referred to as the "Overconcentration Termination Date"); provided,
further, that until such a mutually satisfactory agreement shall be reached, the
Specified Available Subordination Amount for any Series 1999-1 Certificate
referred to in this clause (c) shall be determined as if a Tier-2
Overconcentration rather than a Tier-3 Overconcentration existed on the
Determination Date immediately preceding the issuance date of such Series 1999-1
Certificate.
"Termination Date" shall mean the October 2001 Distribution Date.
"Termination Proceeds" shall mean any proceeds arising out of a sale of
Receivables (or interests therein) pursuant to Section 12.2(c) of the Agreement
with respect to Series 1999-1.
"Tranche" shall mean any of the Base Rate Tranche, a CP Tranche or a LIBO
Tranche.
"Weekly Principal" shall have the meaning specified in Section 4.3.
(b) Notwithstanding anything to the contrary in this Series Supplement or
the Agreement, the term "Rating Agency" shall mean, whenever used in this Series
Supplement or the Agreement with respect to Series 1999-1, Standard & Poor's,
Moody's and Fitch. As used in this Series Supplement and in the Agreement with
respect to Series 1999-1, "highest investment category" shall mean (i) in the
case of Standard & Poor's, AAA and A-1+, as applicable, (ii) in the case of
Moody's, Aaa and P-1, as applicable, and (iii) in the case of Fitch, AAA and F-
1+, as applicable.
(c) All capitalized terms used herein and not otherwise defined herein have
the meanings ascribed to them in the Agreement or the Certificate Purchase
Agreement. The definitions in Section 2.1 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.
(d) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Series Supplement shall refer to this Series Supplement
as a whole and not to any particular provision of this Series Supplement;
references to any Article, Section or Exhibit are references to Articles,
Sections and Exhibits in or to this Series Supplement unless otherwise
specified; and the term "including" means "including without limitation".
SECTION 2.2. Business Day Certificate. Within 5 days after the Closing
Date (with respect to the remainder of the calendar year 1999), and thereafter,
within 15 days prior to the
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end of each calendar year while this Series Supplement remains in effect (with
respect to the succeeding calendar years), the Servicer shall deliver to the
Trustee an Officers' Certificate specifying the days on which banks in St.
Louis, Missouri or Chicago, Illinois are authorized or obligated by law,
executive order or governmental decree to close.
ARTICLE III
Servicing Fee
SECTION 3.1. Servicing Compensation. A monthly servicing fee (the
"Monthly Servicing Fee") shall be payable to the Servicer, in arrears, on each
Distribution Date in respect of any Collection Period (or portion thereof)
occurring prior to the first Distribution Date on which the Invested Amount is
zero, in an amount equal to one-twelfth of the product of (a) the Servicing Fee
Rate and (b) the Series 1999-1 Allocation Percentage of the Pool Balance as of
the last day of the second Collection Period preceding such Distribution Date.
The share of the Servicing Fee allocable to the Series 1999-1 Certificateholders
with respect to any Distribution Date (the "Certificateholders' Monthly
Servicing Fee") shall be equal to one-twelfth of the product of (a) the
Servicing Fee Rate and (b) the Invested Amount as of the last day of the
Collection Period second preceding such Distribution Date; provided, however,
that with respect to the first Distribution Date for Series 1999-1, clause (b)
of this sentence shall be deemed to refer the Invested Amount on the last day of
the first Collection Period preceding such Distribution Date. Notwithstanding
the foregoing, with respect to the first Distribution Date for Series 1999-1,
each reference in the preceding sentences of this Section to one-twelfth shall
be deemed to be replaced by a fraction, the numerator of which is the number of
days from but excluding the Closing Date to and including the last day of the
month in which the Closing Date occurs and the denominator of which is 360.
The remainder of the Monthly Servicing Fee shall be paid by the Seller and
in no event shall the Trust, the Trustee or the Series 1999-1 Certificateholders
be liable for the share of the Monthly Servicing Fee to be paid by the Seller;
and the remainder of the Servicing Fee shall be paid by the Seller and the
Investor Certificateholders of other Series and the Series 1999-1
Certificateholders shall in no event be liable for the share of the Servicing
Fee to be paid by the Seller or the Investor Certificateholders of other Series.
The Certificateholders' Monthly Servicing Fee shall be payable to the Servicer
solely to the extent amounts are available for distribution in accordance with
the terms of this Series Supplement.
The Servicer shall be permitted, in its sole discretion, to waive the
Monthly Servicing Fee for any Distribution Date by notice to the Trustee on or
before the related Determination Date; provided that the Servicer believes that
sufficient Collections of Non-Principal Receivables shall be available on any
future Distribution Date to pay the Monthly Servicing Fee relating to the waived
Monthly Servicing Fee. If the Servicer so waives the Monthly Servicing Fee for
any Distribution Date, the Monthly Servicing Fee and the Certificateholders'
Monthly Servicing Fee for such Distribution Date shall be deemed to be zero for
all purposes of this Series Supplement
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and the Agreement; provided, however, that such Certificateholders' Monthly
Servicing Fee shall be paid on a future Distribution Date solely to the extent
amounts are available therefor pursuant to Section 4.10(a); provided further,
however, that, to the extent any such waived Certificateholders' Monthly
Servicing Fee is so paid, the related portion of the Monthly Servicing Fee to be
paid by the Seller shall be paid by the Seller to the Servicer.
ARTICLE IV
Rights of Series 1999-1 Certificateholders and
Allocation and Application of Collections
SECTION 4.1. Allocations. Subject to Section 4.3(c) of the Agreement,
Collections of Non-Principal Receivables and Principal Receivables,
Miscellaneous Payments and Defaulted Amounts, as they relate to Series 1999-1,
shall be allocated and distributed as set forth in this Article IV.
SECTION 4.2. Determination of Interest. (a) Pursuant to the
Certificate Purchase Agreement, the Invested Amount may from time to time be
divided into one or more Tranches, each of which will accrue interest at the
applicable Certificate Rate.
(b) On the Determination Date preceding each Distribution Date, the
Servicer shall determine the excess, if any (the "CP Interest Shortfall"), of
(x) the sum of (i) the CP Interest Amount for such Distribution Date plus (ii)
without duplication, the aggregate amount of any accrued and unpaid CP Interest
Amount for each Distribution Date since the Closing Date over (y) the amount
which shall be available to be paid to the Series 1999-1 Certificateholders from
the Interest Funding Account on such Distribution Date in respect thereof. If,
as of any Distribution Date, an amount covering any CP Interest Shortfall for
the prior Distribution Date shall not have been deposited into the Interest
Funding Account, then an additional amount ("Additional CP Interest") equal to
the product of (i) the weighted average CP Rate for the CP Tranches outstanding
during the Interest Period preceding the current Distribution Date, (ii) a
fraction the numerator of which is the actual number of days in the period from
and including such prior Distribution Date to but excluding the current
Distribution Date and the denominator of which is 360, and (iii) such CP
Interest Shortfall (or the portion thereof which has not been paid or deposited
in the Interest Funding Account), shall be payable as set forth in Section 4.7.
Notwithstanding anything to the contrary herein, Additional CP Interest shall be
payable to the Interest Funding Account or distributed to Series 1999-1
Certificateholders only to the extent permitted by applicable law.
(c) On the Determination Date preceding each Distribution Date, the
Servicer shall determine the excess, if any (the "Base Rate Interest
Shortfall"), of (x) the sum of (i) the Base Rate Interest Amount for such
Distribution Date plus (ii) without duplication, the aggregate amount of any
accrued and unpaid Base Rate Interest Amount for each Distribution Date since
the Closing Date over (y) the amount which shall be available to be paid to the
Series 1999-1
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Certificateholders from the Interest Funding Account on such Distribution Date
in respect thereof. If, as of any Distribution Date, an amount covering any Base
Rate Interest Shortfall for the prior Distribution Date shall not have been
deposited into the Interest Funding Account, then an additional amount
("Additional Base Rate Interest") equal to the product of (i) the weighted
average Base Rate for the Base Rate Tranches outstanding during the Interest
Period preceding the current Distribution Date, (ii) a fraction the numerator of
which is the actual number of days in the period from and including such prior
Distribution Date to but excluding the current Distribution Date and the
denominator of which is 365, and (iii) such Base Rate Interest Shortfall (or the
portion thereof which has not been paid or deposited in the Interest Funding
Account), shall be payable as set forth in Section 4.7. Notwithstanding anything
to the contrary herein, Additional Base Rate Interest shall be payable to the
Interest Funding Account or distributed to Series 1999-1 Certificateholders only
to the extent permitted by applicable law.
(d) On the second Business Day preceding each LIBO Payment Date, the
Servicer shall determine the excess, if any (the "LIBO Interest Shortfall"), of
(x) the sum of (i) the LIBO Interest Amount for each LIBO Tranche Period ending
on such LIBO Payment Date plus (ii) without duplication, the aggregate amount of
any accrued and unpaid LIBO Interest Amount for each LIBO Payment Date since the
Closing Date over (y) the amount which shall be available to be paid to the
Series 1999-1 Certificateholders from the Interest Funding Account on such LIBO
Payment Date in respect thereof. If, as of any LIBO Payment Date, an amount
covering any LIBO Interest Shortfall for the prior LIBO Payment Date shall not
have been deposited into the Interest Funding Account, then an additional amount
("Additional LIBO Interest") equal to the sum, for each LIBO Tranche having a
LIBOR Tranche Period ending on the current LIBO Payment Date, of the product of
(i) the LIBO Rate for such LIBO Tranche Period, (ii) a fraction the numerator of
which is the number of days in the period from and including such prior LIBO
Payment Date to but excluding the current LIBO Payment Date and the denominator
of which is 360, and (iii) such LIBO Interest Shortfall (or the portion thereof
which has not been paid or deposited in the Interest Funding Account), shall be
payable as set forth in Section 4.7 with respect to the Series 1999-1
Certificates. Notwithstanding anything to the contrary herein, Additional LIBO
Interest shall be payable to the Interest Funding Account or distributed to
Series 1999-1 Certificateholders only to the extent permitted by applicable law.
SECTION 4.3. Weekly Principal. The amount of principal ("Weekly
Principal") distributable with respect to the Series 1999-1 Certificates on each
Principal Reduction Date (a) shall be determined on the related Principal
Determination Date, (b) shall be equal to the lesser of (i) the Available Series
1999-1 Principal Collections with respect to such Principal Reduction Date and
(ii) the outstanding principal balance of the Series 1999-1 Certificates, (c)
shall be deposited by the Servicer in the Principal Funding Account on or before
such Principal Reduction Date and (d) shall be distributed on such Principal
Reduction Date pursuant to Section 4.7(a)(iii).
SECTION 4.4. Series 1999-1 Accounts. (a)(i) The Trustee, at the
direction of the Servicer, for the benefit of the Series 1999-1
Certificateholders, shall cause to be established and maintained in the name of
the Trustee, on behalf of the Trust, an Eligible Deposit Account (the
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"Reserve Fund") which shall be identified as the "Reserve Fund for the
Distribution Financial Services Floorplan Master Trust, Series 1999-1" and shall
bear a designation clearly indicating that the funds deposited therein are held
for the benefit of the Series 1999-1 Certificateholders.
(ii) At the direction of the Servicer, funds on deposit in the Reserve Fund
shall be invested by the Trustee in Eligible Investments selected by the
Servicer that shall mature so that such funds shall be available at the close of
business on or before the Business Day next preceding the following Distribution
Date. All Eligible Investments shall be held by the Trustee for the benefit of
the Series 1999-1 Certificateholders. On each Distribution Date, all interest
and other investment earnings (net of losses and investment expenses) on funds
on deposit in the Reserve Fund received prior to such Distribution Date shall be
applied as set forth in Section 4.6(a) of this Series Supplement. Funds
deposited in the Reserve Fund on the Business Day preceding a Distribution Date
are not required to be invested overnight.
(b)(i) The Trustee, for the benefit of the Series 1999-1
Certificateholders, shall establish and maintain in the name of the Trustee, on
behalf of the Trust, an Eligible Deposit Account (the "Interest Funding
Account"), which shall be identified as the "Interest Funding Account for the
Distribution Financial Services Floorplan Master Trust, Series 1999-1" and shall
bear a designation clearly indicating that the funds deposited therein are held
for the benefit of the Series 1999-1 Certificateholders.
(ii) At the direction of the Servicer, funds on deposit in the Interest
Funding Account shall be invested by the Trustee in Eligible Investments
selected by the Servicer that shall mature so that such funds shall be available
at the close of business on or before the Business Day next preceding the
following Distribution Date. All such Eligible Investments shall be held by the
Trustee for the benefit of the Series 1999-1 Certificateholders. On each
Distribution Date, all interest and other investment earnings (net of losses and
investment expenses) on funds on deposit in the Interest Funding Account shall
be applied as set forth in Section 4.6(a) of this Series Supplement. Funds
deposited in the Interest Funding Account on the Business Day preceding a
Distribution Date are not required to be invested overnight.
(c)(i) The Trustee, for the benefit of the Certificateholders, shall
establish and maintain in the name of the Trustee, on behalf of the Trust, an
Eligible Deposit Account (the "Principal Funding Account"), which shall be
identified as the "Principal Funding Account for Distribution Financial Services
Floorplan Master Trust, Series 1999-1" and shall bear a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Series 1999-1 Certificateholders.
(ii) At the direction of the Servicer, funds on deposit in the Principal
Funding Account shall be invested by the Trustee in Eligible Investments
selected by the Servicer that shall mature so that such funds shall be available
at the close of business on or before the Business Day next preceding the
following Principal Reduction Date. All such Eligible Investments shall be held
by the Trustee for the benefit of the Series 1999-1 Certificateholders. On each
Distribution Date all interest and other investment earnings (net of losses and
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investment expenses) on funds on deposit therein shall be applied as set forth
in Section 4.6(a) of this Series Supplement. Funds deposited in the Principal
Funding Account on a Principal Reduction Date for distribution on such Principal
Reduction Date shall not be invested on such date.
(d)(i) The Trustee shall possess all right, title and interest in and to
all funds on deposit from time to time in, and all Eligible Investments credited
to, the Reserve Fund, the Interest Funding Account and the Principal Funding
Account (collectively, the "Series 1999-1 Accounts") and in all proceeds
thereof. The Series 1999-1 Accounts shall be under the sole dominion and control
of the Trustee for the benefit of the Certificateholders. If, at any time, any
of the Series 1999-1 Accounts ceases to be an Eligible Deposit Account, the
Trustee (or the Servicer on its behalf) shall within 10 Business Days (or such
longer period, not to exceed 30 calendar days, as to which each Rating Agency
may consent) establish a new Series 1999-1 Account meeting the conditions
specified in paragraph (a)(i), (b)(i) or (c)(i) above, as applicable, as an
Eligible Deposit Account and shall transfer any cash and/or investments to such
new Series 1999-1 Account. Neither the Seller, the Servicer nor any other Person
or entity claiming by, through or under the Seller, the Servicer or any such
other Person or entity shall have any right, title or interest in, or any right
to withdraw any amount from, any Series 1999-1 Account, except as expressly
provided herein. Schedule 1, which is hereby incorporated into and made part of
this Series Supplement, identifies each Series 1999-1 Account by setting forth
the account number of each such account, the account designation of each such
account and the name of the institution with which such account has been
established. If a substitute Series 1999-1 Account is established pursuant to
this Section, the Servicer shall provide to the Trustee an amended Schedule 1,
setting forth the relevant information for such substitute Series 1999-1
Account.
(ii) Pursuant to the authority granted to the Servicer in Section 3.1(a) of
the Agreement, the Servicer shall have the power, revocable by the Trustee, to
make withdrawals and payments or to instruct the Trustee to make withdrawals and
payments from the Series 1999-1 Accounts for the purposes of carrying out the
Servicer's or the Trustee's duties hereunder.
(e) Unless otherwise agreed to by the Rating Agencies and the
Administrative Agent, at no time may funds on deposit in any Series 1999-1
Account in an amount greater than 10% of the outstanding principal balance of
the Certificates be invested in Eligible Investments (other than obligations of
the United States government or investments in a mutual fund that does not have
credit concentrations greater than 10%) of any single entity or its Affiliates.
(f) Upon payment in full of the outstanding principal balance of the Series
1999-1 Certificates, any funds remaining on deposit in any Series 1999-1 Account
shall be paid to the Seller.
SECTION 4.5. Deficiency Amount. With respect to each Distribution
Date, on the related Determination Date, the Servicer shall determine the amount
(the "Deficiency Amount"), if any, by which
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(a) the sum of
(i) the Monthly Interest for such Distribution Date,
(ii) any Monthly Interest for any prior Distribution Dates
required to be but not deposited in the Interest Funding Account on a
prior Distribution Date,
(iii) Additional Interest, if any, for such Distribution Date and
any Additional Interest for any prior Distribution Dates required to
be but not deposited into the Interest Funding Account on a prior
Distribution Date (to the extent permitted by applicable law),
(iv) the Certificateholders' Monthly Servicing Fee for such
Distribution Date,
(v) the Series 1999-1 Default Amount, if any, for such
Distribution Date, and
(vi) the Series 1999-1 Allocation Percentage of the amounts of
any Adjustment Payment required to be deposited in the Collection
Account pursuant to Section 3.9(a) of the Agreement with respect to
the related Collection Period that has not been so deposited as of
such Determination Date,
exceeds
(b) the sum of Series 1999-1 Non-Principal Collections for such
Distribution Date plus any Investment Proceeds, if any, with respect to
such Distribution Date.
SECTION 4.6. Application of Series 1999-1 Non-Principal Collections,
Investment Proceeds and Available Series 1999-1 Principal Collections. (a) The
Servicer shall direct the Trustee (by setting forth the following amounts in the
related Distribution Date Statement) to distribute on each Distribution Date
(and the Trustee shall distribute on each Distribution Date) an amount equal to
the sum of Series 1999-1 Non-Principal Collections on deposit in the Collection
Account and any Investment Proceeds with respect to such Distribution Date, in
the following priority:
(i) first, an amount equal to the Monthly Interest for such
Distribution Date, plus the amount of any Monthly Interest for any prior
Distribution Dates not distributed to the Series 1999-1 Certificateholders
on such prior Distribution Dates plus (but only to the extent permitted
under applicable law) the amount of any unpaid Additional Base Rate
Interest and any unpaid Additional CP Interest shall be deposited in the
Interest Funding Account;
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(ii) second, an amount equal to the accrued and unpaid Commitment Fee
shall be distributed to the Administrative Agent for application in
accordance with the Fee Letter;
(iii) third, an amount equal to the Certificateholders' Monthly
Servicing Fee for such Distribution Date shall be distributed to the
Servicer, if the Servicer is not DFS (unless such amount has been netted
against deposits to the Collection Account or waived);
(iv) fourth, an amount equal to the Reserve Fund Deposit Amount, if
any, for such Distribution Date shall be deposited in the Reserve Fund;
(v) fifth, an amount equal to the Certificateholders' Monthly
Servicing Fee for such Distribution Date shall be distributed to DFS if DFS
is the Servicer (unless such amount has been netted against deposits to the
Collection Account or waived);
(vi) sixth, an amount equal to the Series 1999-1 Default Amount, if
any, for such Distribution Date shall be treated as a portion of Series
1999-1 Principal Collections;
(vii) seventh, an amount required to reimburse unreimbursed Series
1999-1 Charge-Offs pursuant to Section 4.9 shall be treated as a portion of
Series 1999-1 Principal Collections;
(viii) eighth, an amount equal to any unpaid Additional Amounts then
due and owing shall be distributed to the Administrative Agent (but only to
the extent permitted under applicable law) for application in accordance
with the Certificate Purchase Agreement; and
(ix) ninth, the balance, if any, shall constitute "Excess Servicing"
and shall be allocated and distributed as set forth in Section 4.10.
(b) The Servicer shall direct the Trustee (by setting forth the
following amounts in the related LIBO Payment Date Statement) to transfer to the
Interest Funding Account (and the Trustee shall transfer) on each LIBO Payment
Date, from Series 1999-1 Non- Principal Collections on deposit in the Collection
Account, an amount equal to
(i) the LIBO Interest Amount for such LIBO Payment Date, plus
(ii) the portion of any LIBO Interest Amount for any prior LIBO
Payment Date not distributed to Series 1999-1 Certificateholders on such
prior LIBO Payment Dates, plus
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(iii) the amount of any unpaid Additional LIBO Interest (but only to
the extent permitted under applicable law), plus
(iv) an amount equal to any unpaid Additional Amounts then due and
owing (but only to the extent permitted under applicable law).
(c) The Servicer shall direct the Trustee in writing on each Principal
Determination Date to transfer (and on the next Principal Reduction Date the
Trustee shall transfer) an amount equal to the Weekly Principal from the
Collection Account into the Principal Funding Account.
(d) The concepts of "Excess Principal Collections" and "Principal
Shortfalls" referred to in the Agreement shall not apply to Series 1999-1.
SECTION 4.7. Distributions to Series 1999-1 Certificateholders. (a) The
Servicer shall direct the Trustee to make (and the Trustee shall make) the
following distributions at the following times from the Interest Funding Account
and the Principal Funding Account:
(i) on each Distribution Date, amounts on deposit in the Interest
Funding Account shall be distributed to the Series 1999-1
Certificateholders in the following order of priority:
(A) first, in payment of Monthly Interest for such Distribution
Date;
(B) second, in payment of any amount determined on any prior
Distribution Date pursuant to paragraph (A) that was not distributed
on any Distribution Date prior to the current Distribution Date; and
(C) third, to the extent permitted under applicable law, in
payment of any Additional Base Rate Interest or Additional CP Interest
for the current LIBO Payment Date and, without duplication, any
Additional Base Rate Interest or Additional CP Interest previously due
but not distributed;
(ii) on each LIBO Payment Date, amounts on deposit in the Interest
Funding Account shall be distributed in the following order of priority:
(A) first, to the Series 1999-1 Certificateholders in payment of
the LIBO Interest Amount for such LIBO Payment Date;
(B) second, to the Series 1999-1 Certificateholders in payment of
any amount determined on any prior LIBO Payment Date pursuant to
paragraph (A) that was not distributed on any LIBO Payment Date prior
to the current LIBO Payment Date;
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(C) third, to the Series 1999-1 Certificateholders to the extent
permitted under applicable law, in payment of any Additional LIBO
Interest for the current LIBO Payment Date and, without duplication,
any Additional LIBO Interest previously due but not distributed; and
(D) fourth, an amount equal to any unpaid Additional Amounts then
due and owing shall be distributed to the Administrative Agent (to the
extent permitted under applicable law) for application in accordance
with the Certificate Purchase Agreement; and
(iii) on each Principal Reduction Date, all amounts on deposit in the
Principal Funding Account shall be distributed (A) first, to the Series
1999-1 Certificateholders in reduction of the outstanding principal balance
of the Series 1999-1 Certificates until such outstanding principal balance
has been reduced to zero (provided, however, that the maximum amount
distributed pursuant to this clause (ii) (A) on any Principal Reduction
Date shall not exceed the excess of (x) the outstanding principal balance
of the Series 1999-1 Certificates over (y) the sum of the unreimbursed
Series 1999-1 Charge-Offs, each on such day); and (B) second, to the
Seller.
(b) The distributions to be made pursuant to this Section are subject
to the provisions of Sections 2.3, 9.2, 10.1 and 12.2 of the Agreement and
Section 8.1 and 8.2 of this Series Supplement.
SECTION 4.8. Application of Reserve Fund and Available Subordinated Amount.
(a) If Series 1999-1 Non-Principal Collections and Investment Proceeds
distributed on any Distribution Date pursuant to Section 4.6(a) are not
sufficient to make the entire distributions required on such Distribution Date
by Section 4.6(a)(i), (ii), (iv) and (v), the Servicer shall direct the Trustee
to withdraw funds from the Reserve Fund to the extent available therein, and
apply such funds to complete the distributions pursuant to Section 4.6(a)(i),
(ii), (iv) and (v) in the numerical order thereof, and the Trustee shall so
withdraw and apply such funds. If Series 1999-1 Non-Principal Collections
distributed on any LIBO Payment Date pursuant to Section 4.6(b) are not
sufficient to make the entire distributions required on such LIBO Payment Date
by Section 4.6(b), the Servicer shall direct the Trustee to withdraw funds from
the Reserve Fund to the extent available therein, and apply such funds to
complete the distributions pursuant to Section 4.6(b), and the Trustee shall so
withdraw and apply such funds. On each Distribution Date, after giving effect to
(i) all distributions pursuant to Section 4.6, (ii) any withdrawals from the
Reserve Fund pursuant to this paragraph (a), and (iii) any issuance of any
Series 1999-1 Certificates, if the balance of the Reserve Fund exceeds two
percent (2%) of the aggregate outstanding principal balances of the Series 1999-
1 Certificates, then the Servicer shall direct the Trustee to withdraw from the
Reserve Fund and to pay (and the Trustee shall so withdraw and pay) such excess
to the Seller.
(b) If there is a Required Subordination Draw Amount for a Distribution
Date, the Servicer shall, subject to the following paragraph, apply or direct
the Trustee to apply the
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Available Seller's Collections on deposit in the Collection Account on such
Distribution Date, but only up to the amount of the Required Subordination Draw
Amount, to make up the shortfall in the distributions required by Sections
4.6(a)(i), (ii), (iv) and (v) and that have not been made through the
application of funds from the Reserve Fund pursuant to Section 4.8(a). Any such
Available Seller's Collections remaining after the application thereof pursuant
to the preceding sentence shall be treated as a portion of Available Series
1999-1 Principal Collections for the next Principal Reduction Date, but only up
to the amount of unpaid Adjustment Payments allocated to Series 1999-1 as
described in Section 4.5(a)(vi). The Available Subordinated Amount shall be
reduced in accordance with clause (ii) of the definition of Available
Subordinated Amount in an amount equal to the Available Seller's Collections
applied pursuant to the first sentence of this paragraph (b).
If for such Distribution Date the sum of the Required Subordination Draw
Amount and the aggregate of the required subordination draw amounts for all
other Series outstanding exceeds the Available Seller's Collections on deposit
in the Collection Account on such Distribution Date, then such Available
Seller's Collections shall be allocated to such Series (including Series 1999-1)
pro rata on the basis of such required subordination draw amounts (including the
Required Subordination Draw Amount).
(c) After the end of the Commitment Period, any funds in the Reserve Fund
shall be treated as Available Series 1999-1 Principal Collections.
(d) Notwithstanding the foregoing, so long as the Invested Amount exceeds
zero no funds shall be distributed from the Reserve Fund to the Seller if as a
result the balance of the Reserve Fund would fall below the lesser of (i) the
Invested Amount and (ii) the product of (x) twenty-five basis points (0.25%) and
(y) the Maximum Funding Amount in effect on the Closing Date.
(e) The balance of Available Seller's Collections on any Distribution Date,
after giving effect to any distributions thereof pursuant to Section 4.8(b) and
the distributions in respect of other Series, shall be distributed to the Seller
on such Distribution Date.
SECTION 4.9. Series 1999-1 Charge-Offs. If, on any Distribution Date on
which (after giving effect to the allocations, distributions, withdrawals and
deposits to be made on such Distribution Date) (i) the Available Subordinated
Amount for the related Determination Date is zero, (ii) the balance of the
Reserve Fund on such Distribution Date is zero and (iii) the Deficiency Amount
for such Distribution Date is greater than zero, then the Invested Amount shall
be reduced by the amount of the excess of such Deficiency Amount over any
remaining Available Subordinated Amount on such Determination Date, but not by
more than the Series 1999-1 Default Amount for the related Collection Period (a
"Series 1999-1 Charge-Off"). Series 1999-1 Charge-Offs shall thereafter be
reimbursed and the Invested Amount increased (but not by an amount in excess of
the aggregate unreimbursed Series 1999-1 Charge-Offs), (a) on any Principal
Reduction Date by the sum of Allocable Miscellaneous Payments with respect to
such
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Principal Reduction Date and (b) on any Distribution Date by the amount
allocated and available for that purpose pursuant to Section 4.6(a)(vi).
SECTION 4.10. Excess Servicing. The Servicer shall direct the Trustee to
apply (and the Trustee shall so apply), on each Distribution Date, Excess
Servicing with respect to the Collection Period immediately preceding such
Distribution Date, to make the following distributions in the following
priority:
(a) an amount equal to the aggregate outstanding amounts of the
Certificateholders' Monthly Servicing Fee which have been previously waived
pursuant to Section 3.1 shall be distributed to the Servicer; and
(b) the balance, if any, shall be distributed to the Seller.
ARTICLE V
Distribution and Reports to
--------------------------------
Series 1999-1 Certificateholders
--------------------------------
SECTION 5.1. Distributions. (a) On each Distribution Date, each LIBO
Payment Date and each Principal Reduction Date, the Trustee as paying agent
shall distribute to each Series 1999-1 Certificateholder of record on the
preceding Record Date (other than as provided in Section 12.2 of the Agreement
respecting a final distribution) such Certificateholder's pro rata share (based
on the outstanding principal balances of the Series 1999-1 Certificates held by
such Certificateholder) of the amounts on deposit in the Series 1999-1 Accounts
as is payable to Series 1999-1 Certificateholders on such Distribution Date,
LIBO Payment Date or Principal Reduction Date pursuant to the priorities set
forth in Section 4.7.
(b) Except as provided in Section 12.2 of the Agreement with respect to a
final distribution, distributions to Series 1999-1 Certificateholders hereunder
shall be made to the Series 1999-1 Certificateholders in immediately available
funds.
SECTION 5.2. Reports and Statements to Series 1999-1 Certificateholders.
(a) At least two Business Days prior to each Distribution Date, the Servicer
shall provide to the Trustee a statement substantially in the form of Exhibit B
(a "Distribution Date Statement"), and on each Distribution Date the Trustee
shall forward such Distribution Date Statement to each Series 1999-1
Certificateholder. At least two Business Days prior to each LIBO Payment Date,
the Servicer shall provide to the Trustee a statement (a "LIBO Payment Date
Statement") setting forth the amounts to be transferred and distributed pursuant
to Sections 4.6 and 4.7 in respect of such LIBO Payment Date, and on each LIBO
Payment Date the Trustee shall forward such LIBO Payment Date Statement to each
Series 1999-1 Certificateholder. On each Principal Determination Date, the
Servicer shall provide to the Trustee a statement setting forth the Weekly
Principal for the next Principal Reduction Date in accordance with Section
4.6(b), and
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on each Principal Reduction Date the Trustee shall forward such statement to
each Series 1999-1 Certificateholder.
(b) A copy of each statement provided pursuant to paragraph (a) and a copy
of the Pooling and Servicing Agreement (without exhibits) and this Series
Supplement shall be made available to Series 1999-1 Certificateholders of record
for inspection at the Corporate Trust Office during the Trustee's normal
business hours.
(c) On or before January 31 of each calendar year, beginning with calendar
year 2000, the Trustee shall furnish or cause to be furnished to each Person who
at any time during the preceding calendar year was a Series 1999-1
Certificateholder, a statement prepared by the Servicer containing the
information which is required to be contained in the statement to Series 1999-1
Certificateholders as set forth in paragraph (a) above, aggregated for such
calendar year or the applicable portion thereof during which such Person was a
Series 1999-1 Certificateholder, together with other information as is required
to be provided by an issuer of indebtedness under the Internal Revenue Code and
such other customary information as is necessary to enable the Series 1999-1
Certificateholders to prepare their tax returns. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Internal Revenue Code as from time to time in effect.
SECTION 5.3. Notice as to Overconcentration Amount. If the Servicer becomes
aware that the Overconcentration Amount exceeds zero, the Servicer shall
promptly notify the Rating Agencies and the Administrative Agent with respect
thereto.
ARTICLE VI
Early Amortization Events
-------------------------
SECTION 6.1. Additional Early Amortization Events. The occurrence of any of
the following events shall, immediately upon the occurrence thereof without
notice or other action on the part of the Trustee or the Series 1999-1
Certificateholders, be deemed to be an Early Amortization Event solely with
respect to Series 1999-1 (each, an "Additional Early Amortization Event"):
(a) on any Distribution Date, the balance of the Reserve Fund is less
than two percent (2%) of the aggregate outstanding principal balance of the
Series 1999-1 Certificates, in each case after giving effect to all
deposits and distributions on such Distribution Date;
(b) any Servicer Default occurs;
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(c) on any Determination Date, the average of the Monthly Payment
Rates for the three preceding Collection Periods is less than twenty-seven
and one-half percent (27.5%); and
(d) the ratio (expressed as a percentage) of (i) the average for each
month of the net losses on the Receivables (exclusive of the Ineligible
Receivables) owned by the Trust (i.e., gross losses less recoveries on any
Receivables) (including recoveries from collateral security, recoveries
from the products, recoveries from Manufacturers and insurance proceeds)
during any three consecutive calendar months to (ii) the average of the
month-end aggregate balances of the Receivables (without deducting
therefrom the discount portion) for such three-month period, exceeds five
percent (5%) on an annualized basis; provided, that this clause (d) may be
amended or waived with the consent of the Seller and the Administrative
Agent and upon the satisfaction of the Rating Agency Condition.
ARTICLE VII
Optional Repurchase
-------------------
SECTION 7.1. Optional Repurchase. (a) On any Distribution Date occurring
after the date on which the Invested Amount is reduced to less than 10% of the
principal amount of the Certificates on the Closing Date, the Seller shall have
the option to purchase all of the Series 1999-1 Certificates at a purchase price
equal to the Reassignment Amount for such Distribution Date.
(b) The Seller shall give the Servicer, the Trustee and the Administrative
Agent at least five Business Days' prior written notice of the Distribution Date
on which the Seller intends to exercise such purchase option. Not later than
12:00 noon, New York City time, on such Distribution Date the Seller shall
deposit the Reassignment Amount into the Collection Account in immediately
available funds. Such purchase option is subject to payment in full of the
Reassignment Amount and if for any reason the Seller fails to deposit the
Reassignment Amount, payments shall continue to be made to Certificateholders as
provided herein. The Reassignment Amount shall be distributed as set forth in
Section 8.1(b).
ARTICLE VIII
Final Distributions
-------------------
SECTION 8.1. Sale of Certificateholders' Interest Pursuant to Section 2.3
of the Agreement; Distributions Pursuant to Section 7.1 of this Series
Supplement or Section 2.3 or 12.2(c) of the Agreementent. (a) The amount to be
paid by the Seller to the Collection Account with respect to Series 1999-1 in
connection with a purchase of the Certificateholders' Interest
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<PAGE>
pursuant to Section 2.3 of the Agreement shall equal the Reassignment Amount for
the Distribution Date on which such repurchase occurs.
(b) With respect to the Reassignment Amount deposited into the Collection
Account pursuant to Section 7.1 or 8.1 of this Series Supplement or Section 2.3
of the Agreement or any Termination Proceeds deposited into the Collection
Account pursuant to Section 12.2(c) of the Agreement, the Trustee shall, not
later than 12:00 noon, New York time, on the Distribution Date on which such
amounts are deposited (or, if such date is not a Distribution Date, on the
immediately following Distribution Date) (in the priority set forth below): (i)
first, (x) deposit the sum of (A) the Monthly Interest for such Distribution
Date plus any Monthly Interest previously due but not paid to the Series 1999-1
Certificateholders on any prior Distribution Date, plus (B) to the extent
permitted under applicable law, the amount of Additional Base Rate Interest or
Additional CP Interest, if any, for such Distribution Date and, without
duplication, any Additional Base Rate Interest or Additional CP Interest
previously due but not paid to Series 1999-1 Certificateholders on any prior
Distribution Date, into the Interest Funding Account, plus (C) any accrued and
unpaid LIBO Interest Amounts, plus (D) to the extent permitted under applicable
law, the amount of accrued and unpaid Additional LIBO Interest, if any, plus (E)
to the extent permitted under applicable law, any unpaid Additional Amounts then
due and owing, and (y) deposit the Invested Amount on such date into the
Principal Funding Account; and (ii) second, pay the remainder of any Termination
Proceeds to the Seller; provided, however, that the sum of the amounts allocated
pursuant to clauses (i) and (ii) shall not exceed the Reassignment Amount for
Series 1999-1.
(c) Notwithstanding anything to the contrary in this Series Supplement or
the Agreement, the entire amount deposited in the Principal Funding Account and
the Interest Funding Account pursuant to Section 7.1 or 8.1 of this Series
Supplement and all other amounts on deposit therein shall be distributed in full
to the Series 1999-1 Certificateholders on such date in the order of priority
set forth in Section 4.7 of this Series Supplement and any distribution made
pursuant to paragraph (b) above and Section 4.7 of this Series Supplement shall
be deemed to be a final distribution pursuant to Section 12.2 of the Agreement
with respect to Series 1999-1.
SECTION 8.2. Distribution of Proceeds of Sale, Disposition or Liquidation
of the Receivables Pursuant to Section 9.2 of the Agreement. (a) Not later than
12:00 noon, New York City time, on the Distribution Date following the date on
which the Insolvency Proceeds are deposited into the Collection Account pursuant
to Section 9.2(b) of the Agreement, the Trustee shall first (in each case, after
giving effect to any deposits and distributions otherwise to be made on such
Distribution Date) deduct an amount equal to the Invested Amount on such
Distribution Date from the portion of the Insolvency Proceeds allocated to the
Series 1999-1 Allocation Percentage of Principal Collections and deposit such
amount in the Principal Funding Account, provided that the amount of such
deposit shall not exceed the product of (x) the portion of the Insolvency
Proceeds allocated to the Series 1999-1 Allocation Percentage of Principal
Collections and (y) 100% minus the Excess Seller's Percentage with respect to
the related Collection Period. The remainder of the portion of the Insolvency
Proceeds allocated to the
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<PAGE>
Series 1999-1 Allocation Percentage of Principal Collections shall be allocated
to the Seller's Interest and shall be released to the Seller on such
Distribution Date.
(b) Not later than 12:00 noon, New York City time, on such Distribution
Date, the Trustee shall first (in each case, after giving effect to any deposits
and distributions otherwise to be made on such Distribution Date) deduct an
amount equal to the sum of (i) Monthly Interest for such Distribution Date, (ii)
any Monthly Interest previously due but not paid to the Series 1999-1
Certificateholders on any prior Distribution Date, (iii) to the extent permitted
under applicable law, the amount of Additional Base Rate Interest or Additional
CP Interest, if any, for such Distribution Date and, without duplication, any
Additional Base Rate Interest or Additional CP Interest previously due but not
paid to the Series 1999-1 Certificateholders on any prior Distribution Date,
(iv) any accrued and unpaid LIBO Interest Amounts, (v) to the extent permitted
under applicable law, accrued and unpaid Additional LIBO Interest, if any, and
(vi) to the extent permitted by applicable law, any unpaid Additional Amounts
then due and owing, from the portion of the Insolvency Proceeds allocated to the
Series 1999-1 Allocation Percentage of Non-Principal Collections and deposit
such amount in the Interest Funding Account, provided that the amount of such
distribution shall not exceed (x) the product of (A) the portion of the
Insolvency Proceeds allocated to the Series 1999-1 Allocation Percentage of Non-
Principal Collections and (B) 100% minus the Excess Seller's Percentage. The
remainder of the portion of the Insolvency Proceeds allocated to Non-Principal
Collections shall be allocated to the Seller's Interest and shall be released to
the Seller on such Distribution Date.
(c) Notwithstanding anything to the contrary in this Series Supplement or
the Agreement, the entire amount deposited in the Principal Funding Account and
the Interest Funding Account pursuant to this Section and all other amounts on
deposit therein shall be distributed in full in the order of priority set forth
in Section 4.7 on the Distribution Date on which funds are deposited pursuant to
this Section 8.2 (or, if not so deposited on a Distribution Date, on the
immediately following Distribution Date) and any distribution made pursuant to
this Section 8.2 shall be deemed to be a final distribution pursuant to Section
12.2 of the Agreement with respect to Series 1999-1.
(d) Distributions by the Trustee pursuant to this Article VIII shall be
made by the Trustee at the written direction of the Servicer.
ARTICLE IX
Miscellaneous Provisions
------------------------
SECTION 9.1. Name of Trust. Notwithstanding any other provision of the
Agreement, (a) the name of the Trust is hereby changed to "Distribution
Financial Services Floorplan Master Trust" and (b) all references to the Trust
in any agreement or document executed in connection with the Agreement shall be
deemed to refer to the Trust under the name specified in clause (a) of this
sentence.
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<PAGE>
SECTION 9.2. Ratification of Agreement. As supplemented by this Series
Supplement, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Series Supplement shall be read, taken and
construed as one and the same instrument.
SECTION 9.3. Counterparts. This Series Supplement 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 9.4. Governing Law. This Series Supplement shall be governed
by and construed in accordance with the laws of the State of New York without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
SECTION 9.5. Waiver. Each party hereto hereby: (a) acknowledges that
Mayer, Brown & Platt represents (i) DFS and the Seller in connection with the
transactions contemplated by the Agreement, this Series Supplement and the
Certificate Purchase Agreement, (ii) Affiliates of DFS and the Seller in other
matters, (iii) FNBC and other parties to the Certificate Purchase Agreement (and
Affiliates of FNBC and other parties to the Certificate Purchase Agreement) in
other matters, and (iv) the institution which is the Trustee (and Affiliates of
such institution) in other matters; and (b) waives any conflict of interest
relating thereto. Notwithstanding any other provision of this Series Supplement,
Mayer, Brown & Platt is entitled to rely on this Section.
SECTION 9.6. The Trustee. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Series Supplement or for or in respect of the recitals contained herein, all of
which recitals are made solely by the Seller.
SECTION 9.7. Instructions in Writing. All instructions given by the
Servicer to the Trustee pursuant to this Series Supplement shall be in writing,
and may be included in a Distribution Date Statement or a LIBO Payment Date
Statement.
SECTION 9.8. Initial Funding of Reserve Fund. On the Closing Date the
Seller shall cause to be deposited with the Trustee, and the Trustee shall
deposit in the Reserve Fund, available funds in an amount equal to two percent
(2%) of the aggregate initial principal balance of the Series 1999-1
Certificates.
SECTION 9.9. Restrictions on Transfer of Series 1999-1 Certificates.
(a) Each Series 1999-1 Certificateholder shall be deemed to have
agreed with the Seller that: (a) such Series 1999-1 Certificateholder shall
deliver to the Seller, on or before the Closing Date or the effective date
of any Certificate Assignment or any sale of a participating interest to a
Participant, a letter substantially in the form of Exhibit C hereto (an
"Investment Letter"), executed by such assignee Series 1999-1
Certificateholder, in the case of a Certificate Assignment, or by the
Participant, in the
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case of a participation, with respect to the purchase by such Series 1999-1
Certificateholder or Participant of all of, or a portion of an interest
relating to, the Series 1999-1 Certificate and (b) all of the statements
made by such Series 1999-1 Certificateholder in its Investment Letter shall
be true and correct as of the date made; provided, however, that so long as
FNBC is the Administrative Agent, the Administrative Agent shall not be
required to sign an Investment Letter in its capacity as a Series 1999-1
Certificateholder.
(b) Each Series 1999-1 Certificateholder shall be deemed to have
agreed that prior to the date on which the first interest payment under its
Series 1999-1 Certificates is due thereto, it shall provide to the Servicer
and the Trustee (i) if such Series 1999-1 Certificateholder is created or
organized under the laws of a jurisdiction outside the United States, two
duly completed copies of the United States Internal Revenue Service Form
4224 or new Form W-8ECI or, if the Seller in its sole discretion consents,
Form 1001 or new Form W-8BEN, or in either case successor applicable or
required forms, (ii) a duly completed copy of United States Internal
Revenue Service Form W-9 or, if the Seller in its sole discretion consents,
Form W-8 or new Form W-8BEN or in either case successor applicable or
required forms, and (iii) such other forms and information as may be
required to confirm the availability of any applicable exemption from
United States federal, state or local withholding taxes. Each Series 1999-1
Certificateholder shall be deemed to have agreed to provide to the Servicer
and Trustee, like additional subsequent duly completed forms (subject to
like consent) satisfactory to the Servicer and Trustee on or before the
date that any such form expires or becomes obsolete, or upon the occurrence
of any event requiring an amendment, resubmission or change in the most
recent form previously delivered by it, and to provide such extensions or
renewals as may be reasonably requested by the Servicer or the Trustee.
Each Series 1999-1 Certificateholder shall be deemed to certify, represent
and warrant that as of the date of this Series Supplement, or in the case
of a Series 1999-1 Certificateholder which is an assignee as of the date of
the applicable Certificate Assignment, that it is entitled (x) to receive
payments under the Agreement, this Series Supplement and the Certificate
Purchase Agreement without deduction or withholding of any United States
federal income taxes and (y) to an exemption from United States backup
withholding tax, and that it shall pay any taxes lawfully imposed on its
interest in a Series 1999-1 Certificate.
(c) Notwithstanding any other provisions in this Series Supplement,
the Agreement or the Certificate Purchase Agreement: (i) no transfer or
assignment of any interests or obligations of any Series 1999-1
Certificateholder under this Series Supplement, the Agreement or the
Certificate Purchase Agreement or any grant of participation therein shall
be permitted or shall be effective if such transfer, assignment or grant
would require the Seller or DFS to file a registration statement with the
Securities and Exchange Commission or to qualify the Series 1999-1
Certificates under the "blue sky" or securities laws of any state or other
jurisdiction; and (ii) no transfer or assignment of any Series 1999-1
Certificate shall be permitted or shall be effective if in connection
therewith such Series 1999-1 Certificate is assigned or transferred
directly or
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<PAGE>
indirectly to or for the benefit of a Benefit Plan. "Benefit Plan" shall
mean (1) any employee benefit plan, retirement arrangement, individual
retirement account or Keogh plan subject to either Title I of ERISA or
Section 4975 of the Internal Revenue Code of 1986, as amended (each a
"Plan"), or (2) an entity using "plan assets" of a Plan.
SECTION 9.10. Deposits in Collection Account. From and after any Change of
Control (so long as the Administrative Agent shall not have waived the
occurrence of such Change of Control) until the date on which the Invested
Amount has been reduced to zero, Servicer shall deposit Collections in the
Collection Account in accordance with Section 4.3(a) of the Agreement rather
than in accordance with Section 4.3(b) of the Agreement, but in any event
subject to Section 4.3(c) of the Agreement. "Change of Control" shall mean that
any of DFS, the general partner of the Seller or the limited partner of the
Seller shall fail to be owned or controlled, indirectly or directly, by Deutsche
Bank AG.
SECTION 9.11. Notice of Issuance. The Trustee and the Servicer, by their
execution of this Series Supplement, shall be deemed to have received from the
Seller notice of the issuance of Series 1999-1 in the manner contemplated by
Section 6.3(b)(i) of the Agreement. Each Rating Agency, by notifying the Seller
or the Servicer that the issuance of Series 1999-1 will not result in a
reduction or withdrawal of the ratings assigned by such Rating Agency to
Investor Certificates issued in 1996, shall be deemed to have received from the
Seller notice of the issuance of Series 1999-1 in the manner contemplated by
Section 6.3(b)(i) of the Agreement.
SECTION 9.12. Severability; Certificate Rate Limitation. (a) If any one or
more of the covenants, agreements, provisions or terms of this Series Supplement
or any Series 1999-1 Certificate 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
Series Supplement and shall in no way affect the validity or enforceability of
the other provisions of this Series Supplement or of such Series 1999-1
Certificate.
(b) Notwithstanding anything in this Series Supplement, the Pooling and
Servicing Agreement, the Certificate Purchase Agreement or any Series 1999-1
Certificate to the contrary, if at any time any Certificate Rate, together with
all fees, charges and other amounts which are treated as interest on the Series
1999-1 Certificates under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Series 1999-1 Certificateholders in
accordance with the terms of this Series Supplement, the Pooling and Servicing
Agreement, the Certificate Purchase Agreement or any Series 1999-1 Certificate,
then such Certificate Rate, together with all Charges payable in respect of the
Series 1999-1 Certificates, shall be limited to the Maximum Rate and, to the
extent lawful, such Certificate Rate and Charges that would have been payable in
respect of the Series 1999-1 Certificates, but were not payable as a result of
the operation of this Section, shall be cumulated and the Certificate Rate and
Charges payable to the Series 1999-1 Certificateholders in respect of other
periods shall be increased (but not above the
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<PAGE>
Maximum Rate therefor) until such cumulated amount shall have been received by
the Series 1999-1 Certificateholders.
SECTION 9.13. Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
[SIGNATURES FOLLOW]
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<PAGE>
IN WITNESS WHEREOF, the Seller, the Servicer and the Trustee have caused
this Series Supplement 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: Richard H. Schumacher
Title: President
By:___________________________________________________
Name: Richard C. Goldman
Title: Senior Vice President
DEUTSCHE FINANCIAL SERVICES CORPORATION,
as Servicer
By:___________________________________________________
Name: Richard H. Schumacher
Title: Senior Vice President
By:___________________________________________________
Name: Richard C. Goldman
Title: Senior Vice President
S-1
<PAGE>
THE CHASE MANHATTAN BANK,
as Trustee
By:________________________________
Name:___________________________
Title:__________________________
S-2
<PAGE>
EXHIBIT A
FORM OF SERIES 1999-1 CERTIFICATE
Initial
REGISTERED Principal Balance:*
$______________________
Certificate No. R-
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). NEITHER THIS CERTIFICATE NOR ANY PORTION HEREOF MAY BE
OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE
1933 ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES LAWS
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE
P&S AND THE SERIES SUPPLEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE ASSIGNED OR TRANSFERRED DIRECTLY OR INDIRECTLY TO OR
FOR THE BENEFIT OF A BENEFIT PLAN (AS DEFINED BELOW).
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
FLOATING RATE ASSET BACKED CERTIFICATES,
SERIES 1999-1
evidencing a fractional undivided interest in
assets of the
DISTRIBUTION FINANCIAL SERVICES
FLOORPLAN MASTER TRUST.
This certificate ("Certificate" or "Series 1999-1 Certificate") does not
represent any interest in, or obligation of, Deutsche Floorplan Receivables,
L.P. ("Deutsche FRLP" or the "Seller"), Deutsche Financial Services Corporation
("DFS"), Deutsche Bank AG or any affiliate thereof.
This certifies that [ ] (the "Series 1999-1
Certificateholder"), is the registered owner of a fractional undivided interest
in assets of the Distribution Financial Services Floorplan Master Trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "P&S"),
- ------------------------
* Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
<PAGE>
dated as of December 1, 1993, amended and restated as of March 1, 1994, further
amended as of January 24, 1996, and amended and restated as of October 1, 1996,
as supplemented by the Series 1999-1 Supplement dated as of June 1, 1999 (the
"Series Supplement"), among Deutsche FRLP, as Seller, DFS, as Servicer, and The
Chase Manhattan Bank, as trustee (the "Trustee"), that are allocated to the
Series 1999-1 Certificateholders' Interest pursuant to the P&S and the Series
Supplement. The P&S and the Series Supplement are collectively referred to
herein as the "Pooling and Servicing Agreement."
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee, by manual signature, this Series 1999-1 Certificate shall
not be entitled to any benefit under the Pooling and Servicing Agreement
referred to above or be valid for any purpose.
THIS CERTIFICATE MAY NOT BE ASSIGNED OR TRANSFERRED DIRECTLY OR INDIRECTLY
TO OR FOR THE BENEFIT OF A BENEFIT PLAN. "BENEFIT PLAN" MEANS (1) ANY EMPLOYEE
BENEFIT PLAN, RETIREMENT ARRANGEMENT, INDIVIDUAL RETIREMENT ACCOUNT OR KEOGH
PLAN SUBJECT TO EITHER TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (EACH A "PLAN"), OR (2) AN ENTITY USING "PLAN ASSETS" OF A PLAN.
THIS CERTIFICATE 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.
-2-
<PAGE>
This Series 1999-1 Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement to which, as
amended and supplemented from time to time, the Series 1999-1 Certificateholder
by virtue of the acceptance hereof assents and is bound. Although a summary of
certain provisions of the Pooling and Servicing Agreement is set forth below,
this Series 1999-1 Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of
the Trustee. In the event of any conflict or inconsistency between this Series
1999-1 Certificate and the Pooling and Servicing Agreement, the Pooling and
Servicing Agreement shall control in all respects. To the extent not defined
herein, the capitalized terms used herein have the meanings ascribed to them in
the Pooling and Servicing Agreement.
The Seller has entered into the Pooling and Servicing Agreement and the
Series 1999-1 Certificates have been (or shall be) issued with the intention
that the Series 1999-1 Certificates shall qualify under applicable tax law as
indebtedness of Deutsche FRLP secured by the Receivables. The Seller and each
Series 1999-1 Certificateholder, by the acceptance of its Series 1999-1
Certificate, agrees to treat such Series 1999-1 Certificate as indebtedness of
the Seller secured by the Receivables for Federal income taxes, state and local
income, single business and franchise taxes (imposed on or measured by income)
and any other taxes imposed on or measured by income.
This Series 1999-1 Certificate does not represent an obligation of, or an
interest in, the Seller, the Servicer, Deutsche Bank AG or any affiliate of any
of them and is not insured or guaranteed by the Federal Deposit Insurance
Corporation or any other governmental agency or instrumentality.
-3-
<PAGE>
IN WITNESS WHEREOF, the Seller has caused this Certificate to be duly
executed.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
By: DEUTSCHE FLOORPLAN RECEIVABLES, INC., its
general partner
By:__________________________________________
Name:_____________________________________
Title:____________________________________
By:___________________________________________
Name:______________________________________
Title:_____________________________________
Dated:
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Pooling and
Servicing Agreement.
THE CHASE MANHATTAN BANK,
as Trustee
By:_____________________________________
Authorized Officer
Dated:
-5-
<PAGE>
ASSIGNMENT
Social Security or other identifying number of assignee
________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto __________________________________________________
(name and address of assignee)
_________________________________________________________________
the within certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints ___________________, attorney, to transfer said
certificate on the books kept for registration thereof, with full power of
substitution in the premises.
Dated:_______________ ________________________________*
Signature Guaranteed:
_________________________________
- -----------------
(*) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the reverse of the within Certificate in every
particular, without alteration, enlargement or any change whatsoever.
<PAGE>
EXHIBIT B
DISTRIBUTION DATE STATEMENT
(a) The aggregate amount of Collections, the aggregate amount of Non-
Principal Collections and the aggregate amount of Principal Collections
processed during the immediately preceding Collection Period.
(b) The Floating Allocation Percentage, the Principal Allocation Percentage
and the Series 1999-1 Allocation Percentage for such Collection Period.
(c) The amounts, by item, specified in Sections 4.6(a) and 4.7(a), with
respect to the current Distribution Date.
(d) The Required Subordination Draw Amount, if any, for the current
Distribution Date.
(e) The amount of the Series 1999-1 Charge-Offs and the amounts of
reimbursements thereof for the preceding Collection Period.
(f) The amount of the Monthly Servicing Fee for the preceding Collection
Period.
(g) The amounts, if any, to be withdrawn from the Reserve Fund on the
current Distribution Date.
(h) The Available Subordinated Amount for the current Determination Date
(and the Specified Available Subordinated Amount for each outstanding Series
1999-1 Certificate).
(i) The Reserve Fund balance for such date.
(j) The Principal Funding Account balance, the Interest Funding Account
balance and Collection Account balance with respect to such date.
(k) The amounts payable under Section 2.06 of the Certificate Purchase
Agreement.
(l) Information as to delinquent Receivables (consistent with the
information provided by the Servicer to the Trustee with respect to the Series
issued in 1996).
<PAGE>
EXHIBIT C
INVESTMENT LETTER
Deutsche Floorplan Receivables, L.P.
655 Maryville Center Drive
St. Louis, Missouri 63141
Re: Purchase of Series 1999-1 Certificate
-------------------------------------
Ladies and Gentlemen:
This letter (this "Investment Letter") is delivered by
____________________ (the "Purchaser") pursuant to Section 9.9 of the Series
1999-1 Supplement dated as of June 1, 1999, among Deutsche Floorplan
Receivables, L.P., as Seller, Deutsche Financial Services Corporation, as
Servicer, and The Chase Manhattan Bank, as Trustee (as amended, amended and
restated or otherwise modified from time to time, the "Series 1999-1
Supplement"). Capitalized terms used herein without definition shall have the
meanings set forth in the Series 1999-1 Supplement. The Purchaser represents and
warrants to the Seller as follows:
(i) The Purchaser is authorized to enter into the Certificate Purchase
Agreement and to perform its obligations thereunder and to consummate the
transactions contemplated thereby.
(ii) The Purchaser has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Series 1999-1 Certificates and the Purchaser is able to bear
the economic risk of such investment.
(iii) The Purchaser has received and reviewed the Pooling and Servicing
Agreement, the Series Supplement (including the schedules and exhibits thereto)
and the Certificate Purchase Agreement and has had the opportunity to perform
due diligence with respect thereto and to ask questions of and receive answers
from the Seller and its representatives concerning the Seller, the Trust and the
Series 1999-1 Certificates.
(iv) The [Administrative Agent is an agent on behalf of the Purchaser and
the] Purchaser is not acquiring the Series 1999-1 Certificate as an agent or
otherwise for any other person. The Purchaser is a [_________] organized under
the laws of [ ].
(v) The Purchaser is an institutional "accredited investor" within the
meaning of Rule 501(a) (1), (2), (3) or (7) of Regulation D promulgated by the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended. The Purchaser understands that the offering and sale of the
Series 1999-1 Certificates have not been and will not be registered under the
Securities Act of 1933, as amended, and have not and will not be registered or
qualified under any applicable state securities or "blue sky" law, and that the
offering and sale of the Series 1999-1 Certificates have not been reviewed by,
passed on or
<PAGE>
submitted to the Commission or any other federal or state agency or commission,
securities exchange or other regulatory body.
(vi) The Purchaser[, through the Administrative Agent,] is acquiring a
Series 1999-1 Certificate without a view to any distribution, resale or other
transfer thereof, except as contemplated by the following sentence. The
Purchaser shall not resell or otherwise transfer the Series 1999-1 Certificates
or any portion thereof, except (A) in accordance with Section 9.9 of the Series
1999-1 Supplement and (B) (i) pursuant to an effective registration statement
under the Securities Act of 1933, as amended; or (ii) in a transaction exempt
from the registration requirements of the Securities Act of 1933, as amended,
and applicable state securities or "blue sky" laws, to a Person who the
Purchaser reasonably believes is a qualified institutional buyer (within the
meaning thereof in Rule 144A under the Securities Act of 1933, as amended) that
is aware that the resale or other transfer is being made in reliance upon Rule
144A.
(vii) The Purchaser understands that each Series 1999-1 Certificate will
bear legend substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). NEITHER THIS CERTIFICATE NOR ANY PORTION HEREOF MAY BE
OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE
1933 ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES LAWS
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE
P&S AND THE SERIES SUPPLEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE ASSIGNED OR TRANSFERRED DIRECTLY OR INDIRECTLY TO OR
FOR THE BENEFIT OF A BENEFIT PLAN. "BENEFIT PLAN" MEANS (1) ANY EMPLOYEE BENEFIT
PLAN, RETIREMENT ARRANGEMENT, INDIVIDUAL RETIREMENT ACCOUNT OR KEOGH PLAN
SUBJECT TO EITHER TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (EACH A "PLAN"), OR (2) AN ENTITY USING "PLAN ASSETS" OF A PLAN.
(viii) The Purchaser acknowledges that the Seller has entered into the
Pooling and Servicing Agreement, the Series 1999-1 Supplement and the
Certificate Purchase Agreement, and the Series 1999-1 Certificates have been (or
shall be) issued, with the intention that the Series 1999-1 Certificates shall
qualify under applicable tax law as indebtedness of the Seller secured by the
Receivables. The Purchaser shall treat each Series 1999-1 Certificate as
indebtedness of the Seller secured by the Receivables for Federal income taxes,
state and local income, single business and franchise taxes (imposed on or
measured by income) and any other taxes imposed on or measured by income.
-2-
<PAGE>
(ix) This Investment Letter has been duly authorized, executed and
delivered and constitutes the legal, valid and binding obligations of the
Purchaser enforceable against the Purchaser in accordance with its terms.
(x) The Purchaser is not a Benefit Plan, is not acquiring its interest in
any Series 1999-1 Certificate directly or indirectly for the benefit of a
Benefit Plan, and shall not transfer or assign any Series 1999-1 Certificate
directly or indirectly to or for the benefit of a Benefit Plan.
Very truly yours,
_____________________________,
as Purchaser
By:___________________________
Name:
Title:
-3-
<PAGE>
SCHEDULE 1
SERIES 1999-1 ACCOUNTS
<TABLE>
<CAPTION>
Name of Series
1999-1 Account Account No.
- -------------- -----------
<S> <C>
Interest Funding Account 507-888871
Principal Funding Account 507-888928
Reserve Fund 507-888898
</TABLE>
All of the foregoing accounts are maintained at the Trustee.
<PAGE>
SCHEDULE 2
CERTAIN TERMS USED IN THE DEFINITION OF
SPECIFIED AVAILABLE SUBORDINATION AMOUNT
As used in the definition of Specified Available Subordination Amount:
"Tier-1 Overconcentration" shall mean, as of any Determination Date, that
(a) there is no Tier-2 Overconcentration and no Tier-3 Overconcentration, and
(b) any of the following is then the case:
(i) the amount of the Dealer Overconcentrations exceeds zero;
(ii) the amount of the A/R Receivable Overconcentration exceeds zero;
(iii) the amount of the Asset Based Receivable Overconcentration exceeds
zero;
(iv) the amount of the Manufacturer Overconcentrations exceeds zero;
(v) the amount of the Product Line Overconcentration exceeds zero; or
(vi) the amount of the Individual Unsecured Receivable Overconcentration
exceeds zero, provided that, for purposes of this clause (vi), the Individual
Unsecured Receivable Overconcentration shall be calculated as if the percentage
in clause (ii)(b) of the definition thereof were three-quarters of one percent
(0.75%) rather than one-half of one percent (0.50%).
"Tier-2 Overconcentration" shall mean, as of any Determination Date, that
(a) there is no Tier-3 Overconcentration, and (b) any of the following is then
the case:
(i) the amount of the Dealer Overconcentrations exceeds zero, provided
that for purposes of this clause (i), the Dealer Overconcentrations shall be
calculated as if the percentage in clause (i) of the definition of Dealer
Overconcentration were two and one-half percent (2.5%) rather than two percent
(2%) and as if the percentage in clause (ii) of the definition of Dealer
Overconcentration were three and one-half percent (3.5%) rather than three
percent (3%);
(ii) the amount of the A/R Receivable Overconcentration exceeds zero,
provided that, for purposes of this clause (b), the A/R Receivable
Overconcentration shall be calculated as if the percentage in the definition
thereof were thirty percent (30%) rather than twenty percent (20%);
(iii) the amount of the Asset Based Receivable Overconcentration exceeds
zero;
<PAGE>
(iv) the amount of the Manufacturer Overconcentrations exceeds zero;
(v) the amount of the Product Line Overconcentration exceeds zero; or
(vi) the amount of the Individual Unsecured Receivable Overconcentration
exceeds zero, provided that, for purposes of this clause (vi), the Individual
Unsecured Receivable Overconcentration shall be calculated as if the percentage
in clause (ii)(b) of the definition thereof were one percent (1%) rather than
one-half of one percent (0.50%).
"Tier-3 Overconcentration" shall mean, as of any Determination Date, that
the Overconcentration Amount exceeds zero as a result of an overconcentration
which exceeds the applicable percentages of the Pool Balance referred to in the
definition of Asset Based Receivable Overconcentration, in the definition of
Manufacturer Overconcentrations, in the definition of Product Line
Overconcentration, or in clause (i), (ii) or (vi) of the definition of Tier-2
Overconcentration.
-2-
<PAGE>
99.2
- ------------------------------------------------------------------------------
CERTIFICATE PURCHASE AGREEMENT
among
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.,
as Seller,
DEUTSCHE FINANCIAL SERVICES CORPORATION,
as Servicer
FALCON ASSET SECURITIZATION CORPORATION,
PREFERRED RECEIVABLES FUNDING CORPORATION, and
INTERNATIONAL SECURITIZATION CORPORATION,
as the Conduit Purchasers,
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent for the Purchasers,
and
THE FIRST NATIONAL BANK OF CHICAGO,
as a Committed Purchaser
dated as of June 28, 1999
- ------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE I
DEFINITIONS
<S> <C> <C>
SECTION 1.01 Certain Defined Terms..........................................................1
SECTION 1.02 Other Definitional Provisions..................................................5
ARTICLE II
PURCHASE AND SALE
SECTION 2.01 Purchase and Sale of the Certificates..........................................5
SECTION 2.02 Purchase Price.................................................................5
SECTION 2.03 Purchase Procedures............................................................5
SECTION 2.04 Extension of Purchase Expiration Date..........................................7
SECTION 2.05 Reduction or Increase of Maximum Funding Amount................................7
SECTION 2.06 Calculation of Monthly Interest; Fees..........................................7
SECTION 2.07 Allocation of Tranches Other Than Pursuant to a Purchase Request...............8
SECTION 2.08 Notification as to Purchasers, Certificate Rates, Liquidity Puts and
Base Rate Trigger Events.......................................................9
ARTICLE III
CLOSING
SECTION 3.01 Closing........................................................................9
SECTION 3.02 Transactions to be Effected at the Closing....................................10
ARTICLE IV
CONDITIONS PRECEDENT TO
PURCHASE ON THE CLOSING DATE
SECTION 4.01 Performance by the Seller and Servicer........................................10
SECTION 4.02 Representations and Warranties................................................10
SECTION 4.03 Corporate Documents...........................................................10
SECTION 4.04 Opinions of Counsel to DFS and the Seller.....................................11
SECTION 4.05 Opinion of Counsel to the Trustee.............................................11
SECTION 4.06 Uniform Commercial Code Filings...............................................11
SECTION 4.07 Documents.....................................................................11
SECTION 4.08 No Actions or Proceedings.....................................................11
SECTION 4.09 Approvals and Consents........................................................11
SECTION 4.10 Officer's Certificates........................................................11
SECTION 4.11 Accounts......................................................................11
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 4.12 Reports......................................................................12
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE SELLER
SECTION 5.01 Pooling and Servicing Agreement..............................................12
SECTION 5.02 Authority, etc. .............................................................12
SECTION 5.03 Certificates.................................................................13
SECTION 5.04 Litigation...................................................................13
SECTION 5.05 The Receivables..............................................................13
SECTION 5.06 Taxes, etc. .................................................................13
SECTION 5.07 Trust Existence and Authorization............................................13
SECTION 5.08 Financial Condition of the Seller............................................14
SECTION 5.09 Use of Proceeds..............................................................14
SECTION 5.10 Securities Act...............................................................14
SECTION 5.11 Investment Company Act.......................................................14
SECTION 5.12 Full Disclosure..............................................................14
ARTICLE VA
REPRESENTATIONS AND WARRANTIES OF DFS
SECTION 5A.01 Pooling and Servicing Agreement and Receivables Contribution
and Sale Agreement...........................................................14
SECTION 5A.02 Authority, etc. .............................................................15
SECTION 5A.03 Litigation...................................................................15
SECTION 5A.04 The Receivables..............................................................15
SECTION 5A.05 Taxes, etc. .................................................................15
SECTION 5A.06 Trust Existence and Authorization............................................16
SECTION 5A.07 Financial Condition of DFS...................................................16
SECTION 5A.08 Full Disclosure..............................................................16
SECTION 5A.09 Year 2000 Plan...............................................................16
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE ADMINISTRATIVE AGENT AND THE PURCHASERS
SECTION 6.01 Organization.................................................................17
SECTION 6.02 Authority, etc. .............................................................17
SECTION 6.03 Securities Act...............................................................17
SECTION 6.04 Investment Company Act.......................................................18
</TABLE>
ii
<PAGE>
<TABLE>
ARTICLE VII
COVENANTS OF THE SELLER
<S> <C> <C>
SECTION 7.01 Access to Information........................................................18
SECTION 7.02 Security Interests; Further Assurances.......................................19
SECTION 7.03 Covenants....................................................................19
SECTION 7.04 Amendments...................................................................19
ARTICLE VIIA
COVENANTS OF DFS
SECTION 7A.01 Information from DFS.........................................................19
SECTION 7A.02 Access to Information........................................................20
SECTION 7A.03 Security Interests; Further Assurances.......................................20
SECTION 7A.04 Covenants....................................................................20
SECTION 7A.05 Amendments...................................................................20
ARTICLE VIII
ADDITIONAL COVENANTS
SECTION 8.01 Legal Conditions to Closing..................................................21
SECTION 8.02 Expenses.....................................................................21
SECTION 8.03 Mutual Obligations...........................................................21
SECTION 8.04 Restrictions on Transfer.....................................................21
SECTION 8.05 Consents, etc. ..............................................................21
ARTICLE IX
INDEMNIFICATION
SECTION 9.01 Indemnification..............................................................22
SECTION 9.02 Procedure....................................................................22
SECTION 9.03 Defense of Claims............................................................22
SECTION 9.04 Indemnity for Taxes, Reserves and Expenses...................................23
SECTION 9.05 Costs, Expenses, Taxes, Breakage Payments and Increased Costs
under Certificate Purchase Agreement and Program Facility....................25
ARTICLE X
THE ADMINISTRATIVE AGENT
SECTION 10.01 Authorization and Action.....................................................26
SECTION 10.02 Administrative Agent's Reliance, etc. .......................................26
SECTION 10.03 Administrative Agent and Affiliates..........................................27
SECTION 10.04 Indemnification..............................................................27
SECTION 10.05 Purchase Decision............................................................27
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 10.06 Successor Administrative Agent..............................................28
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Amendments..................................................................28
SECTION 11.02 Notices.....................................................................28
SECTION 11.03 No Waiver; Remedies.........................................................28
SECTION 11.04 Binding Effect; Assignability...............................................29
SECTION 11.05 Provision of Documents and Information......................................30
SECTION 11.06 GOVERNING LAW...............................................................30
SECTION 11.07 No Proceedings..............................................................30
SECTION 11.08 Execution in Counterparts...................................................30
SECTION 11.09 No Recourse.................................................................30
SECTION 11.10 Limited Recourse............................................................31
SECTION 11.11 Survival....................................................................31
SECTION 11.12 Tax Characterization........................................................31
SECTION 11.13 Severability; Certificate Rate Limitation...................................31
SECTION 11.14 Headings....................................................................32
SECTION 11.15 Submission to Jurisdiction..................................................32
EXHIBIT A Form of Purchase Request
SCHEDULE I Addresses for Notice
</TABLE>
iv
<PAGE>
CERTIFICATE PURCHASE AGREEMENT ("Certificate Purchase Agreement") dated as
of June 28, 1999, among Deutsche Floorplan Receivables, L.P., as Seller (in such
capacity being referred to as the "Seller"), Deutsche Financial Services
Corporation, in its capacity as Servicer (in such capacity being referred to as
"DFS" or "Servicer"), the Conduit Purchasers, the Administrative Agent and the
Committed Purchaser named herein.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Defined Terms. Capitalized terms used herein without
definition shall have the meanings set forth in the Pooling and Servicing
Agreement (as defined below) or the Series Supplement (as defined below), as
applicable. If a term used herein without definition is defined both in the
Pooling and Servicing Agreement and the Series Supplement, it shall have the
meaning set forth in the Series Supplement. Additionally, the following terms
shall have the following meanings:
"Additional Amounts" means all amounts owed by the Seller, without
duplication, (i) pursuant to Article IX hereof, (ii) pursuant to the Fee Letter
(other than the "Arrangement Fee" and the "Commitment Fee" referred to therein)
and (iii) as Breakage Amounts.
"Administrative Agent" means FNBC in its capacity as Administrative
Agent for the Purchasers.
"Applicable Indemnifying Party" shall have the meaning set forth in
Section 9.02 hereof.
"Asset Purchase Agreement" means each asset purchase agreement dated
as of the same date as this Agreement among a Conduit Purchaser, FNBC, as Agent,
and each of the Liquidity Purchasers party thereto, as the same may from time to
time be amended and restated or otherwise modified from time to time.
"Assignment and Acceptance" means an assignment and acceptance
agreement entered into by a Purchaser, a permitted assignee and the
Administrative Agent, pursuant to which such assignee may become a party to this
Certificate Purchase Agreement.
"Base Rate Trigger Event" means, with respect to a Conduit Purchaser,
that such Conduit Purchaser is unable to raise funds through the issuance of
Commercial Paper. A Base Rate Trigger Event with respect to a Conduit Purchaser
shall cease to exist when such Conduit Purchaser becomes able to raise funds
through the issuance of Commercial Paper.
<PAGE>
"Breakage Amounts" has the meaning specified in Section 2.07(c)
hereof.
"Closing" has the meaning specified in Section 3.01 hereof.
"Closing Date" has the meaning specified in Section 3.01 hereof.
"Commercial Paper" means, with respect to any Conduit Purchaser,
promissory notes of such Conduit Purchaser issued by such Conduit Purchaser in
the commercial paper market.
"Commission" has the meaning specified in Section 6.03 hereof.
"Commitment Fee" has the meaning specified in the Fee Letter.
"Committed Purchaser" means FNBC and each of its assigns (with respect
to its commitment to make Purchases) that shall become a party to this
Certificate Purchase Agreement pursuant to Section 11.04 hereof.
"Conduit Purchasers" means Falcon Asset Securitization Corporation, a
Delaware corporation ("Falcon"), Preferred Receivables Funding Corporation, a
Delaware corporation ("PREFCO"), International Securitization Corporation, a
Delaware corporation ("ISC"), and any of their respective permitted assigns that
is a RIC.
"DFS" means Deutsche Financial Services Corporation, a Nevada
corporation, in its capacity as Servicer.
"DFS Losses" has the meaning specified in Section 9.01(b) hereof.
"Federal Bankruptcy Code" means the bankruptcy code of the United
States of America codified in Title 11 of the United States Code.
"Fee Letter" means the agreement dated June 25, 1999 between the
Seller and the Administrative Agent setting forth certain fees payable by the
Seller in connection with the purchase of the Certificates by the Administrative
Agent for the benefit of the Purchasers.
"FNBC" means The First National Bank of Chicago, a national banking
association, and its successors.
"Governmental Actions" means any and all consents, approvals, permits,
orders, authorizations, waivers, exceptions, variances, exemptions or licenses
of, or registrations, declarations or filings with, any Governmental Authority
required under any Governmental Rules.
2
<PAGE>
"Governmental Authority" means the United States of America, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government and having jurisdiction over the applicable Person.
"Governmental Rules" means any and all laws, statutes, codes, rules,
regulations, ordinances, orders, writs, decrees and injunctions, of any
Governmental Authority and any and all legally binding conditions, standards,
prohibitions, requirements and judgments of any Governmental Authority.
"Indemnified Party" means any Purchaser, the Administrative Agent or
any of their officers, directors, employees, agents, representatives, assignees
or Affiliates.
"Initial Series 1999-1 Certificates" shall mean one or more Series
1999-1 Certificates, issued on the Closing Date in the name of the
Administrative Agent.
"ISC" has the meaning set forth in the definition of Conduit
Purchaser.
"Liquidity Agent" means FNBC in its capacity as "Agent" pursuant to an
Asset Purchase Agreement.
"Liquidity Purchasers" means each of the liquidity purchasers party to
an Asset Purchase Agreement.
"Liquidity Put" means, with respect to a Conduit Purchaser, that such
Conduit Purchaser, pursuant to its Asset Purchase Agreement, has sold to one or
more Liquidity Purchasers an interest in such Conduit Purchaser's interest in
the Series 1999-1 Certificates funded or maintained by such Conduit Purchaser at
the time of such sale.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement, as amended and restated as of October 1, 1996, among the Seller, the
Servicer, and The Chase Manhattan Bank, as Trustee, as the same may be amended,
amended and restated or otherwise modified from time to time.
"Purchase" means a purchase of a Series 1999-1 Certificate pursuant to
this Certificate Purchase Agreement.
"Purchase Date" means the date on which a Purchase occurs.
"Purchase Expiration Date" means the last day of the Commitment
Period, as such date may from time to time be modified in accordance with
Section 2.04 hereof.
"Purchase Price" has the meaning specified in Section 2.02 hereof.
3
<PAGE>
"Purchase Request" means a written request substantially in the form
of Exhibit A hereto.
"Purchaser Parties" means, collectively, the Purchasers and the
Administrative Agent.
"Purchaser Percentage" of any Committed Purchaser means (a) with
respect to FNBC, the percentage set forth on the signature page to this
Certificate Purchase Agreement as such Committed Purchaser's Purchaser
Percentage, or such percentage as reduced by any Assignment and Acceptance
entered into with an assignee, or (b) with respect to a Committed Purchaser that
has entered into an Assignment and Acceptance, the percentage set forth therein
as such Purchaser's Purchaser Percentage, or such percentage as reduced by any
Assignment and Acceptance entered into between such Committed Purchaser and an
assignee.
"Purchasers" means the Conduit Purchasers, the Liquidity Purchasers
and the Committed Purchasers.
"Put Portion" means, with respect to a Liquidity Put, the portion of
the Invested Amount corresponding to the portion of the Series 1999-1
Certificates that is funded or maintained by the Liquidity Purchasers pursuant
to such Liquidity Put.
"RIC" means a receivables investment company administered by the
Administrative Agent or an Affiliate thereof which obtains funding from the
issuance of commercial paper or other notes.
"Seller Losses" has the meaning specified in Section 9.01(a) hereof.
"Series Documents" means the Pooling and Servicing Agreement, the
Series Supplement, the Receivables Contribution and Sale Agreement and this
Certificate Purchase Agreement.
"Series Supplement" means the Series 1999-1 Supplement dated as of
June 1, 1999 among the Seller, the Servicer, and The Chase Manhattan Bank, as
Trustee, as the same may be amended, amended and restated or otherwise modified
from time to time.
"Third Party Claim" has the meaning specified in Section 9.02 hereof.
"Tranche Period" means a CP Tranche Period or a LIBO Tranche Period,
as the case may be.
"Unallocated Balance" means, as of any Business Day, the sum of (i)
the portion of the Invested Amount for which interest is then being calculated
by reference to the Base Rate, and (ii) the portion of the Invested Amount
allocated to any CP Tranche or LIBO Tranche that expires on such Business Day.
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SECTION 1.02 Other Definitional Provisions. (a) All terms defined in
this Certificate Purchase Agreement shall have the defined meanings when used in
any certificate or other document made or delivered pursuant hereto unless
otherwise defined therein.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.01, and accounting terms partially defined in Section 1.01 to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles. To the extent that the definitions of
accounting terms herein are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained herein shall
control.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Certificate Purchase Agreement shall refer to this
Certificate Purchase Agreement as a whole and not to any particular provision of
this Certificate Purchase Agreement; and Section, subsection, Schedule and
Exhibit references contained in this Certificate Purchase Agreement are
references to Sections, subsections, the Schedules and Exhibits in or to this
Certificate Purchase Agreement unless otherwise specified.
ARTICLE II
PURCHASE AND SALE
SECTION 2.01 Purchase and Sale of the Certificates. On the terms and
subject to the conditions set forth in this Certificate Purchase Agreement, and
in reliance on the covenants, representations, warranties and agreements herein
set forth, during the Commitment Period (i) the Seller from time to time may
offer to sell Series 1999-1 Certificates to the Administrative Agent, on behalf
of the Purchasers; and (ii) (a) the Administrative Agent, on behalf of the
Conduit Purchasers, may elect to purchase such offered Series 1999-1
Certificates, and (b) the Administrative Agent, on behalf of the Committed
Purchasers, shall purchase each such offered Series 1999-1 Certificate that the
Administrative Agent is not purchasing on behalf of the Conduit Purchasers.
SECTION 2.02 Purchase Price. Each Series 1999-1 Certificate shall be
purchased by the Administrative Agent on behalf of the applicable Purchasers,
for a price, in U.S. dollars (the "Purchase Price"), equal to 100% of the
initial principal balance of such Series 1999-1 Certificate.
SECTION 2.03 Purchase Procedures. (a) Notice. The Seller may request
a Purchase by sending the Administrative Agent (by facsimile) a Purchase Request
at least two Business Days prior to the proposed Purchase Date (or, in the case
of the first Purchase Date, on or before such Purchase Date). Each Purchase
Request shall state (i) the applicable Purchase Date; (ii) the applicable
Purchase Prices; (iii) what portion of the Invested Amount represented by such
Purchase Prices is to be allocated to the Base Rate Tranche, a CP Tranche or a
LIBO
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Tranche; and (iv) if any portions thereof are to be allocated to a CP Tranche or
a LIBO Rate Tranche, the length of the related CP Tranche Period or LIBO Tranche
Period. Each Purchase shall be requested in an aggregate principal amount of
$5,000,000 and integral multiples of $1,000,000 in excess thereof; provided,
that a Purchase may be requested in the entire remaining Maximum Funding Amount;
provided, further, that if a Base Rate Trigger Event has occurred and is
continuing with respect to a Conduit Purchaser on a Purchase Date, the portion
of the Invested Amount that was to have been allocated to a CP Tranche
commencing on such Purchase Date with respect to such Conduit Purchaser shall be
deemed to have been allocated to the Base Rate Tranche.
(b) Purchases. On each Purchase Date identified in a Purchase Request: (i)
the Administrative Agent shall, on behalf of the Conduit Purchasers (unless the
Conduit Purchasers decline to participate in such Purchase), purchase Series
1999-1 Certificates having an aggregate outstanding principal balance equal to
the Purchase Prices specified in such Purchase Request; and (ii) to the extent
necessary to fund such Purchases, the Administrative Agent, on behalf of the
Committed Purchasers, shall purchase such Series 1999-1 Certificates on such
Purchase Date.
(c) Payment of Purchase Price. On each Purchase Date, the Administrative
Agent shall remit the aggregate Purchase Prices for the Purchases on such
Purchase Date not later than 1:00 p.m. New York City time on the Purchase Date
by wire transfer of immediately available funds in U.S. dollars to the Seller's
account no. 990101107, ABA# 122400724, maintained at Bank of America Nevada
(ref: Deutsche Floorplan Receivables, L.P.) (or such other account as may from
time to time be specified by the Seller in a notice to the Administrative
Agent).
(d) Conditions Precedent. The Purchase of the Initial Series 1999-1
Certificates shall be subject to the conditions precedent set forth in Article
IV. Each Purchase following the Purchase of the Initial Series 1999-1
Certificates shall be subject to the conditions precedent that:
(i) the Administrative Agent will have received copies of all
statements and all reports required to be delivered by the Servicer to the
Trustee after the Closing Date pursuant to Section 3.4 of the Pooling and
Servicing Agreement and Section 5.2 of the Series Supplement;
(ii) each of the representations and warranties of the Seller and the
Servicer made in the Series Documents shall be true and correct in all
material respects as of the applicable Purchase Date (except to the extent
they expressly relate to an earlier or later time); and
(iii) no Early Amortization Event (or event which, with the giving of
notice or passage of time, or both, would constitute an Early Amortization
Event) shall have occurred and be continuing.
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In addition, no Committed Purchaser shall be required to make a portion of
any Purchase to the extent that, after giving effect thereto, (A) the portion of
the Invested Amount funded or maintained by such Committed Purchaser (in each
case pursuant to this Certificate Purchase Agreement) would exceed (B) the
result of (I) its Purchaser Percentage multiplied by (II) the excess, if any, of
(x) the Maximum Funding Amount over (y) the portion of the Invested Amount then
funded or maintained by the Conduit Purchasers.
SECTION 2.04 Extension of Purchase Expiration Date. The parties to
this Certificate Purchase Agreement may mutually agree in writing to the
extension of the Purchase Expiration Date to a date no later than 364 days
following the date of such extension; provided that the Rating Agency Condition
shall have been satisfied with respect to such extension; provided, further,
that no agreement to any such extension shall be effective with respect to a
particular Conduit Purchaser unless the available commitments of the Liquidity
Purchasers under the Asset Purchase Agreement with respect to such Conduit
Purchaser and the credit and/or liquidity coverage committed under the
program-wide credit and/or liquidity facilities for the commercial paper program
of such Conduit Purchaser will continue to be in effect after such extension in
the aggregate amounts, and for the period of the time, necessary to maintain the
then-current ratings of such Conduit Purchaser's Commercial Paper.
SECTION 2.05 Reduction or Increase of Maximum Funding Amount. (a) The
Seller may reduce in whole or in part the Maximum Funding Amount (but not below
the Invested Amount) by giving the Administrative Agent written notice thereof
at least five Business Days before such reduction is to take place; provided,
however, that any partial reduction shall be in an aggregate amount of
$30,000,000, or any integral multiples of $15,000,000 in excess thereof. Any
such reduction in the Maximum Funding Amount shall be permanent unless a
subsequent increase in the Maximum Funding Amount is made in accordance with
Section 2.05(b). The Seller shall pay the applicable Purchasers any accrued and
unpaid Commitment Fee on the date of such reduction with respect to the
reduction amount.
(b) The Seller may request an increase in the Maximum Funding Amount
by written notice to the Administrative Agent at least 30 days before the date
on which such increase is requested to become effective. No such increase will
take effect unless (i) the Administrative Agent and one or more Conduit
Purchasers agree thereto, (ii) the available commitments of the Purchasers
(other than the Conduit Purchasers) hereunder or under the Asset Purchase
Agreement and the credit and/or liquidity coverage committed under the program-
wide credit and/or liquidity facilities for the commercial paper program of each
agreeing Conduit Purchaser are increased as necessary to maintain the then-
current ratings of such Conduit Purchaser's Commercial Paper, and (iii) the
Rating Agency Condition shall have been satisfied.
SECTION 2.06 Calculation of Monthly Interest; Fees. (a) On the fifth
day of each month (or if such day is not a Business Day, the next Business Day),
the Administrative Agent (i) shall calculate the amount of Monthly Interest (and
any Additional CP Interest or Additional Base Rate Interest) for the next
Distribution Date and (ii) shall notify the Servicer of
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the same in writing. The Servicer shall include such information in the next
Distribution Date Statement that it provides to the Trustee pursuant to Section
5.2 of the Series Supplement.
(b) On the third Business Day preceding each LIBO Payment Date, the
Administrative Agent (i) shall calculate the LIBO Interest Amount (and any
Additional LIBO Interest) for such LIBO Payment Date and (ii) shall notify the
Servicer of the same in writing. The Servicer shall include such information in
the LIBO Payment Date Statement that it provides to the Trustee in respect of
such LIBO Payment Date pursuant to Section 5.2 of the Series Supplement.
(c) The Seller agrees to pay and to instruct the Trustee to pay from
amounts distributable to the Seller all amounts payable by the Seller pursuant
to the Fee Letter to the account designated by the Administrative Agent in the
Fee Letter.
SECTION 2.07 Allocation of Tranches Other Than Pursuant to a Purchase
Request. (a) With respect to any Business Day, the Seller (or the Servicer on
its behalf) may elect to allocate all or any portion of the Unallocated Balance
to one or more CP Tranches or LIBO Tranches with CP Tranche Periods or LIBO
Tranche Periods commencing on such Business Day by giving the Administrative
Agent written or telephonic (confirmed in writing) notice thereof, which notice
must be received by the Administrative Agent (with a copy to the Trustee and the
Servicer or the Seller, as applicable) prior to 1:00 p.m., New York City time,
(x) one Business Day prior to such Business Day, in the case of a CP Tranche or
a Base Rate Tranche, or (y) three Business Days prior to such Business Day, in
the case of a LIBO Tranche. Such notice shall specify (i) the applicable
Business Day, (ii) whether such Tranche is to be a CP Tranche or a LIBO Tranche,
(iii) the CP Tranche Period for each CP Tranche and the LIBO Tranche Period for
each LIBO Tranche to which a portion of the Unallocated Balance is to be
allocated and (iv) the portion of the Unallocated Balance being allocated to
each such CP Tranche and LIBO Tranche; provided that no portion of the Invested
Amount funded by a particular Conduit Purchaser shall be allocated to a CP
Tranche with respect to such Conduit Purchaser so long as a Base Rate Trigger
Event exists with respect to such Conduit Purchaser. If the Administrative Agent
shall not have received timely notice as described above with respect to any
portion of the Unallocated Balance, such portion: (i) in the case of an expiring
CP Tranche, shall be continued as a CP Tranche for such period (not to exceed 90
days) as the Administrative Agent may select (but only, with respect to any
particular Conduit Purchaser, if no Base Rate Trigger Event shall exist with
respect to such Conduit Purchaser on the last day of the related expiring CP
Tranche Period); and (ii) in all other cases shall be continued as part of, or
shall be deemed allocated to, the Base Rate Tranche until such time as it is
reallocated in accordance with this Section 2.07(a).
(b) If a Liquidity Put has occurred, any portion of the Invested Amount
constituting the related Put Portion shall bear interest, but only following
such occurrence, at the Base Rate and shall be deemed, but only following such
occurrence, to be allocated to a Base Rate Tranche until such time as such
portion of the Invested Amount shall be reallocated pursuant to Section 2.07(a).
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(c) If a Liquidity Put occurs on a day other than the last day of a CP
Tranche, any breakage costs actually incurred by the applicable Conduit
Purchaser relating to such Liquidity Put shall be payable by the Seller to such
Conduit Purchaser. If the reduction in the outstanding balance of the Series
1999-1 Certificates on a Principal Reduction Date pursuant to Section
4.7(a)(iii) of the Series Supplement results in breakage costs actually incurred
by Liquidity Purchasers in respect of the outstanding LIBO Tranches, such
breakage costs shall be payable by the Seller to the Administrative Agent for
the benefit of such Liquidity Purchasers. The breakage costs referred to in
this paragraph shall be referred to collectively as the "Breakage Amounts".
SECTION 2.0 Notification as to Purchasers, Certificate Rates,
Liquidity Puts and Base Rate Trigger Events.
(a) On each Purchase Date the Administrative Agent shall notify the
Seller and the Servicer as to the Purchasers on whose behalf the Administrative
Agent made Purchases on such Purchase Date. Promptly following receipt of such
notice, the Seller shall instruct the Trustee to authenticate and deliver to the
Administrative Agent the Series 1999-1 Certificates purchased on such Purchase
Date.
(b) On the fifth day of each Collection Period (or, if such fifth day
is not a Business Day, on the next Business Day), the Administrative Agent shall
notify the Servicer as to (i) the CP Rate for each CP Tranche outstanding during
the preceding Collection Period, and (ii) the Base Rate applicable to each day
during such preceding Collection Period on which part of the Invested Amount was
allocated to the Base Rate Tranche.
(c) On the first day of each LIBO Tranche Period, the Administrative
Agent shall notify the Servicer as to the LIBO Rate for such LIBO Tranche.
(d) Promptly (but in no event more than one Business Day) after the
occurrence of a Liquidity Put or a Base Rate Trigger Event, the Administrative
Agent shall notify the Servicer as to (i) the occurrence of such Liquidity Put
or Base Rate Trigger Event and (ii) the amount of any Breakage Amounts.
ARTICLE III
CLOSING
SECTION 3.01 Closing. The closing (the "Closing") of the purchase and
sale of the Initial Series 1999-1 Certificates shall take place at the offices
of Mayer, Brown & Platt in Chicago, Illinois on the date of this Certificate
Purchase Agreement, or if the conditions to closing set forth in Article IV of
this Certificate Purchase Agreement shall not have been satisfied or waived by
such date, as soon as practicable after such conditions shall have been
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satisfied or waived, or at such other time, date and place as the parties shall
agree upon (the date of the Closing being referred to herein as the "Closing
Date").
SECTION 3.02 Transactions to be Effected at the Closing. At the
Closing (a) the Administrative Agent will deliver to the Seller funds in an
amount equal to the sum of the Purchase Prices for the Initial Series 1999-1
Certificates (by wire transfer of immediately available funds in U.S. dollars to
the bank account designated in Section 2.03(d)), net of the "Arrangement Fee"
referred to in the Fee Letter; and (b) the Seller shall instruct the Trustee to
authenticate and deliver the Initial Series 1999-1 Certificates to the
Administrative Agent in satisfaction of the Seller's obligation to the
Administrative Agent hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO
PURCHASE ON THE CLOSING DATE
The Purchase of the Initial Series 1999-1 Certificates is subject to
the satisfaction at the time of the Closing of the following conditions (any or
all of which may be waived by the Administrative Agent in its sole discretion):
SECTION 4.01 Performance by the Seller and Servicer. All the terms,
covenants, agreements and conditions of the Series Documents to be complied with
and performed by the Seller and the Servicer at or before the Closing shall have
been complied with and performed in all material respects. Without limiting the
foregoing, DFS shall have indicated in its books and records, which may include
its computer files, the matters specified in the third paragraph of Section 2.1
of the Pooling and Servicing Agreement.
SECTION 4.02 Representations and Warranties. Each of the
representations and warranties of the Seller and the Servicer made in the Series
Documents shall be true and correct in all material respects as of the time of
the Closing (except to the extent they expressly relate to an earlier or later
time).
SECTION 4.03 Corporate Documents. The Administrative Agent shall have
received copies of (a) the (i) certificate of incorporation and by-laws of DFS,
(ii) board of directors resolutions of DFS with respect to the transactions
contemplated by this Certificate Purchase Agreement, and (iii) incumbency
certificate of DFS, each certified by appropriate corporate authorities and (b)
the (i) certificate of limited partnership and agreement of limited partnership
of the Seller, (ii) board of directors resolutions of the general partner of the
Seller with respect to the transactions contemplated by this Certificate
Purchase Agreement, and (iii) incumbency certificate of the general partner of
the Seller, each certified by appropriate corporate authorities.
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SECTION 4.04 Opinions of Counsel to DFS and the Seller. Counsel to DFS
and the Seller shall have delivered to the Administrative Agent (a) favorable
opinions, dated the Closing Date and reasonably satisfactory in form and
substance to the Administrative Agent and its counsel, covering due
authorization, enforceability, true sale and non-consolidation, and perfection
matters and (b) Tax Opinions covering the matters referred to in Section
6.3(b)(vi) of the Pooling and Servicing Agreement, in each case addressed to the
Administrative Agent.
SECTION 4.05 Opinion of Counsel to the Trustee. Counsel to the Trustee
shall have delivered to the Administrative Agent a favorable opinion, dated the
Closing Date and reasonably satisfactory in form and substance to the
Administrative Agent and its counsel, and addressed to the Administrative Agent.
SECTION 4.06 Uniform Commercial Code Filings. The Administrative Agent
shall have received evidence satisfactory to it of the completion of all Uniform
Commercial Code filings as may be necessary to perfect or evidence the
assignment by DFS to the Seller and by the Seller to the Trust of their
respective ownership interests in the Receivables and the proceeds thereof and
the security interest granted pursuant to Section 2.1 of the Pooling and
Servicing Agreement.
SECTION 4.07 Documents. The Administrative Agent shall have received a
duly executed counterpart of each of the Series Documents and each and every
document or certification delivered by any party in connection with the Series
Supplement or this Certificate Purchase Agreement, and each such document shall
be in full force and effect.
SECTION 4.08 No Actions or Proceedings. No action, suit, proceeding or
investigation by or before any Governmental Authority shall have been instituted
to restrain or prohibit the consummation of, or to invalidate, the transactions
contemplated by the Series Documents and the documents related thereto in any
material respect.
SECTION 4.09 Approvals and Consents. All Governmental Actions of all
Governmental Authorities required with respect to the transactions contemplated
by the Series Documents and the other documents related thereto shall have been
obtained or made.
SECTION 4.10 Officer's Certificates. The Administrative Agent shall
have received certificates from DFS and the Seller in form and substance
reasonably satisfactory to the Administrative Agent and its counsel, dated as of
the Closing Date, certifying as to the satisfaction of the conditions set forth
in Sections 4.01 and 4.02 hereof with respect to DFS and the Seller,
respectively.
SECTION 4.11 Accounts. The Administrative Agent shall have received
evidence that the Series 1999-1 Accounts have been established in accordance
with the terms of the Pooling and Servicing Agreement and Series Supplement.
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SECTION 4.12 Reports. The Administrative Agent shall have received
copies of (a) the most recent Distribution Date Statement provided to the
Trustee pursuant to Section 3.4 of the Pooling and Servicing Agreement and (b)
the most recent reports furnished pursuant to Section 3.6 of the Pooling and
Servicing Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby makes the following representations and warranties
to the Purchasers and the Administrative Agent, as of the Closing Date and as of
each Purchase Date, and the Purchasers and the Administrative Agent shall be
deemed to have relied on such representations and warranties in purchasing the
Initial Series 1999-1 Certificates on the Closing Date and in making (or
committing to make) each Purchase on each subsequent Purchase Date.
SECTION 5.01 Pooling and Servicing Agreement. The Seller repeats and
reaffirms to the Purchasers and the Administrative Agent the representations and
warranties of the Seller set forth in Sections 2.3 and 2.4 of the Pooling and
Servicing Agreement and represents and warrants that such representations and
warranties are true and correct in all material respects.
SECTION 5.02 Authority, etc. (a) The Seller has been duly organized
and is validly existing and in good standing as a limited partnership under the
laws of the State of Delaware, with corporate power and authority to own its
properties and to transact the business in which it is now engaged, and the
Seller is duly qualified to do business and is in good standing (or is exempt
from such requirements) in each State of the United States where the nature of
its business requires it to be so qualified and the failure to be so qualified
and in good standing would have a material adverse effect on the interests of
the Purchasers.
(b) The issuance, sale, assignment and conveyance of the
Certificates, the performance of the Seller's obligations under this Certificate
Purchase Agreement and the consummation of the transactions herein contemplated
will not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or imposition of
any Lien (other than any Lien created by the Series Documents), charge or
encumbrance upon any of the property or assets of the Seller pursuant to the
terms of, any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which it is bound or to which any of its
property or assets is subject, nor will such action result in any violation of
the provisions of its certificate of limited partnership or its agreement of
limited partnership or any Governmental Rule applicable to the Seller.
(c) No Governmental Action which has not been obtained is required by
or with respect to the Seller in connection with the execution and delivery of
the Certificates or any
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of the Series Documents by the Seller or the consummation by the Seller of the
transactions contemplated hereby or thereby.
(d) Each of the Series Documents has been duly authorized, executed
and delivered by the Seller, and is the valid and legally binding obligation of
the Seller, enforceable against the Seller in accordance with its terms, subject
as to enforcement to bankruptcy, insolvency, reorganization, moratorium and
other similar laws of general applicability relating to or affecting creditors'
rights and to general principles of equity.
SECTION 5.03 Certificates. The Certificates have been duly and validly
authorized, and, when executed and authenticated in accordance with the terms of
the Pooling and Servicing Agreement and the Series Supplement, and delivered to
and paid for in accordance with this Certificate Purchase Agreement, will be
duly and validly issued and outstanding and will be entitled to the benefits of
the Pooling and Servicing Agreement and the Series Supplement.
SECTION 5.04 Litigation. There is no pending or, to the Seller's
knowledge, threatened action, suit or proceeding by or against the Seller before
any Governmental Authority or any arbitrator (i) with respect to the Trust, any
Series Document, the Certificates or any of the transactions contemplated herein
or therein, or (ii) with respect to the Seller which, in the case of any such
action, suit or proceeding with respect to the Seller, if adversely determined,
would have a material adverse effect on the ability of the Seller to perform its
obligations hereunder or thereunder.
SECTION 5.05 The Receivables. The Trust has a perfected interest in
the Receivables and Collateral Security free and clear of all Liens, except for
Liens permitted under Section 2.6(a) of the Pooling and Servicing Agreement. On
each Transfer Date, each Receivable conveyed to the Trust on such date is an
Eligible Receivable or, if such Receivable is not an Eligible Receivable, such
Receivable is conveyed to the Trust in accordance with Section 2.9 of the
Pooling and Servicing Agreement. Since the Closing Date, no material adverse
change has occurred in the overall credit quality of the Receivables.
SECTION 5.06 Taxes, etc. Any taxes, fees and other charges of
Governmental Authorities applicable to the Seller, except for franchise or
income taxes, in connection with the execution, delivery and performance by the
Seller of the Series Documents or otherwise applicable to the Seller in
connection with the Trust have been paid or will be paid by the Seller at or
prior to the Closing Date or Purchase Date, as applicable, to the extent then
due.
SECTION 5.07 Trust Existence and Authorization. The Trust has been
duly created and is validly existing under the laws of the State of New York.
The Seller has authorized the Trust to issue and sell the Certificates.
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SECTION 5.08 Financial Condition of the Seller. On the date hereof and
on each Purchase Date, the Seller is not insolvent or the subject of any
voluntary or involuntary bankruptcy proceeding.
SECTION 5.09 Use of Proceeds. No proceeds of a purchase hereunder will
be used by the Seller (i) for a purpose that violates or would be inconsistent
with Regulations T, U or X promulgated by the Board of Governors of the Federal
Reserve System from time to time or (ii) to acquire any security in any
transaction in violation of Section 13 or 14 of the Securities Exchange Act of
1934, as amended.
SECTION 5.10 Securities Act. The sale of the Certificates pursuant to
the terms of this Certificate Purchase Agreement, the Pooling and Servicing
Agreement and the Series Supplement will not require registration of the
Certificates under the Act.
SECTION 5.11 Investment Company Act. Neither the Trust nor the Seller
is an "investment company" or is controlled by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
SECTION 5.12 Full Disclosure. No written information furnished or to
be furnished by the Seller or any of its Affiliates, agents or representatives
to the Purchasers or the Administrative Agent for purposes of or in connection
with this Certificate Purchase Agreement, including, without limitation, any
information relating to the Accounts and Receivables, is or shall be inaccurate
in any material respect, or contains or shall contain any material misstatement
of fact, or omits or shall omit to state a material fact or any fact necessary
to make the statements contained therein not misleading, in each case as of the
date such information was or shall be stated or certified.
ARTICLE VA
REPRESENTATIONS AND WARRANTIES OF DFS
DFS hereby makes the following representations and warranties to the
Purchasers and the Administrative Agent, as of the Closing Date and as of each
Purchase Date, and the Purchasers and the Administrative Agent shall be deemed
to have relied on such representations and warranties in purchasing the
Certificates on the Closing Date and in making (or committing to make) each
Purchase on each Purchase Date.
SECTION 5A.01 Pooling and Servicing Agreement and Receivables
Contribution and Sale Agreement. DFS repeats and reaffirms to the Purchasers
and the Administrative Agent the representations, warranties and covenants of
the Servicer set forth in Section 3.3 of the Pooling and Servicing Agreement and
the representations and warranties of DFS set forth in Sections 2.2 and 2.3 of
the Receivables Contribution and Sale Agreement and represents and warrants that
all such representations and warranties are true and correct in all material
respects.
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SECTION 5A.02 Authority, etc. (a) DFS has been duly organized and is
validly existing and in good standing as a corporation under the laws of Nevada,
with corporate power and authority to own its properties and to transact the
business in which it is now engaged, and DFS is duly qualified to do business
and is in good standing (or is exempt from such requirements) in each State of
the United States where the nature of its business requires it to be so
qualified and the failure to be so qualified and in good standing would have a
material adverse effect on the interests of the Purchasers.
(b) The sale of the Receivables pursuant to the Receivables
Contribution and Sale Agreement, the servicing activities pursuant to the
Pooling and Servicing Agreement and the performance of the obligations of DFS
under this Certificate Purchase Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any Lien (other than any Lien created by the
Series Documents), charge or encumbrance upon any of the property or assets of
DFS pursuant to the terms of, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which it or any of its
Affiliates is bound or to which any of its property or assets is subject, nor
will such action result in any violation of the provisions of its Certificate of
Incorporation or By-Laws or any Governmental Rule applicable to DFS.
(c) No Governmental Action which has not been obtained is required by
or with respect to DFS in connection with any of the Series Documents.
(d) Each of the Series Documents has been duly authorized, executed
and delivered by DFS, and is the valid and legally binding obligation of DFS,
enforceable against DFS in accordance with its terms, subject as to enforcement
to bankruptcy, insolvency, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights and to general
principles of equity.
SECTION 5A.03 Litigation. There is no pending or, to the knowledge of
DFS, threatened action, suit or proceeding by or against DFS before any
Governmental Authority or any arbitrator (i) with respect to the Trust, any
Series Document or any of the transactions contemplated herein or therein, or
(ii) with respect to DFS which, in the case of any such action, suit or
proceeding with respect to DFS, if adversely determined, would have a material
adverse effect on the ability of DFS to perform its obligations hereunder or
thereunder.
SECTION 5A.04 The Receivables. DFS has serviced and administered the
Receivables in accordance with the Financing Guidelines and has not made a
change in such Financing Guidelines since the Closing Date which could have a
material adverse effect on the Purchasers.
SECTION 5A.05 Taxes, etc. Any taxes, fees and other charges of
Governmental Authorities applicable to DFS, except for franchise or income
taxes, in connection with the execution, delivery and performance by DFS of the
Series Documents or otherwise applicable to
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DFS in connection with the Trust have been paid or will be paid by DFS at or
prior to the Closing Date or Purchase Date, as applicable, to the extent then
due.
SECTION 5A.06 Trust Existence and Authorization. The Trust has been
duly created and is validly existing under the laws of the State of New York.
SECTION 5A.07 Financial Condition of DFS. On the date hereof and on
each Purchase Date, DFS is not insolvent or the subject of any insolvency
proceeding.
SECTION 5A.08 Full Disclosure. No written information furnished or to
be furnished by DFS or its agents or representatives to the Purchasers or the
Administrative Agent for purposes of or in connection with this Certificate
Purchase Agreement, including, without limitation, any information relating to
the Accounts and Receivables and the business of DFS, is or shall be inaccurate
in any material respect, or contains or shall contain any material misstatement
of fact, or omits or shall omit to state a material fact or any fact necessary
to make the statements contained therein not misleading, in each case as of the
date such information was or shall be stated or certified.
SECTION 5A.09 Year 2000 Plan. DFS has reviewed the areas within its
business and operations that could be adversely affected by, and has developed a
plan (the "Year 2000 Plan") to address on a timely basis, the risk that computer
applications used by it to process any data related to the Series Documents may
produce materially adverse consequences in performing date-sensitive functions
involving certain dates prior to and any date after December 31, 1999 (such risk
being referred to herein as the "Year 2000 Problem"). DFS is taking or causing
to be taken reasonable measures to address the Year 2000 Problem on a timely
basis. To the best knowledge of DFS, the Year 2000 Problem will not materially
and adversely affect the interests of the Purchasers under this Certificate
Purchase Agreement, the Series Supplement and the Pooling and Servicing
Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE ADMINISTRATIVE AGENT AND THE PURCHASERS
The Administrative Agent (on behalf of itself and on behalf of the
Conduit Purchasers) and the Committed Purchasers hereby make the following
representations and warranties to the Seller and DFS, as of the Closing Date and
as of each Purchase Date, and the Seller and DFS shall be deemed to have relied
upon such representations and warranties in entering into this Certificate
Purchase Agreement and in consummating the transactions contemplated by this
Certificate Purchase Agreement (including each issuance of a Series 1999-1
Certificate).
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SECTION 6.01 Organization. Each Purchaser Party has been duly
organized and is validly existing and in good standing under the state or
federal laws governing its incorporation or formation, with power and authority
to own its properties and to transact the business in which it is now engaged
and each Purchaser Party is duly qualified to do business and is in good
standing (or is exempt from such requirements) in each State of the United
States where the nature of its business requires it to be so qualified and the
failure to be so qualified and in good standing would have a material adverse
effect on the interests of the Seller.
SECTION 6.02 Authority, etc. Each Purchaser Party has all requisite
power and authority to enter into and perform its obligations under this
Certificate Purchase Agreement and to consummate the transactions contemplated
hereby. The execution and delivery by each Purchaser Party of this Certificate
Purchase Agreement and the consummation by each Purchaser Party of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of each Purchaser Party. This Certificate
Purchase Agreement has been duly and validly executed and delivered by each
Purchaser Party and constitutes a legal, valid and binding obligation of each
Purchaser Party, enforceable against each Purchaser Party in accordance with its
terms, subject as to enforcement to bankruptcy, reorganization, insolvency,
moratorium and other similar laws of general applicability relating to or
affecting creditors' rights and to general principles of equity. Neither the
execution and delivery by any Purchaser Party of this Certificate Purchase
Agreement nor the consummation by such Purchaser Party of any of the
transactions contemplated hereby, nor the fulfillment by any Purchaser Party of
the terms hereof, will conflict with, or violate, result in a breach of or
constitute a default under any term or provision of the Articles of
Incorporation or By-laws of any Purchaser Party or any Governmental Rule
applicable to any Purchaser Party.
SECTION 6.03 Securities Act. The Series 1999-1 Certificates purchased
by any Purchaser Party pursuant to this Certificate Purchase Agreement will be
acquired for investment only and not with a view to any distribution, resale or
other transfer thereof, except as contemplated by the next sentence. No
Purchaser Party will sell or offer to sell or otherwise transfer its interest in
any Series 1999-1 Certificate acquired by it (or any interest therein), except
(A) in accordance with Section 9.9 of the Series 1999-1 Supplement and (B) (i)
pursuant to an effective registration statement under the Act or (ii) in a
transaction exempt from the registration requirements of the Act and applicable
state securities or "blue sky" laws, to a Person who the Purchaser reasonably
believes is a qualified institutional buyer (within the meaning thereof in Rule
144A under the Act) that is aware that the resale or other transfer is being
made in reliance upon Rule 144A. Each Purchaser Party acknowledges that it has
no right to require the Seller to register under the Act, or any other
securities law, any Series 1999-1 Certificate to be acquired by any Purchaser
Party pursuant to this Certificate Purchase Agreement.
Each Purchaser Party has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of an
investment in the Series 1999-1 Certificates and each Purchase Party is able to
bear the economic risk of such investment. Each Purchaser Party has reviewed the
Pooling and Servicing Agreement and other Series
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Documents (including the schedules and exhibits thereto) and has had the
opportunity to perform due diligence with respect thereto and to ask questions
of and receive answers from the Seller and its representatives concerning the
Seller, the Trust, the Trust Assets, the Series Documents and the Series 1999-1
Certificates. Each of the Purchaser Parties is an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
promulgated by the Securities and Exchange Commission (the "Commission") under
the Act.
Each Purchaser Party understands that the offering and sale of the
Series 1999-1 Certificates have not been and will not be registered under the
Act, and have not and will not be registered or qualified under any applicable
"blue sky" or state securities law, and that the offering and sale of the Series
1999-1 Certificates have not been reviewed by, passed on or submitted to the
Commission or any other federal or state agency or commission, securities
exchange or other regulatory body. No Purchaser Party is a Benefit Plan. No
Purchaser Party is acquiring any Series 1999-1 Certificate (or any interest in a
Series 1999-1 Certificate) directly or indirectly for the benefit of a Benefit
Plan.
SECTION 6.04 Investment Company Act. No Purchaser Party is (a)
required to register as an "investment company" or (b) controlled by an
"investment company", in each case within the meaning of the Investment Company
Act of 1940, as amended.
ARTICLE VII
COVENANTS OF THE SELLER
SECTION 7.01 Access to Information. So long as any Series 1999-1
Certificate remains outstanding, the Seller will, at any time from time to time
during regular business hours with reasonable notice to the Seller, permit the
Administrative Agent, or its agents or representatives to:
(a) examine all books, records and documents (including computer
tapes and disks) in the possession or under the control of the Seller relating
to the Receivables, and
(b) visit the offices and property of the Seller for the purpose of
examining such materials described in clause (a) above.
Except as provided in Section 11.05, any information obtained by any
Conduit Purchaser or the Administrative Agent pursuant to this Section 7.01
shall be held in confidence by the Conduit Purchasers and the Administrative
Agent unless and to the extent such information (i) has become available to the
public other than as a result of disclosure in breach of this Certificate
Purchase Agreement, (ii) is required or requested by any Governmental Authority
or in any court proceeding or (iii) is required by any Governmental Rule. In
the case of any disclosure permitted by clause (ii) or (iii), the Conduit
Purchasers and the Administrative Agent shall use commercially reasonable
efforts to (x) provide the Seller with advance notice of any
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such disclosure and (y) cooperate with the Seller in limiting the extent or
effect of any such disclosure.
SECTION 7.02 Security Interests; Further Assurances. The Seller will
take all action reasonably necessary to maintain the Trustee's first priority
perfected ownership or security interest in the Receivables and the Collateral
Security granted pursuant to Section 2.1 of the Pooling and Servicing Agreement.
The Seller agrees to take any and all acts and to execute any and all further
instruments necessary or reasonably requested by the Administrative Agent to
more fully effect the purposes of this Agreement.
SECTION 7.03 Covenants. The Seller will duly observe and perform each
of its covenants set forth in the other Series Documents.
SECTION 7.04 Amendments. The Seller will not make, or permit any
Person to make, any material amendment, modification or change to, or provide
any material waiver under any Series Document without the prior written consent
of the Administrative Agent; provided that neither the Administrative Agent nor
any Purchaser shall unreasonably withhold or delay its consent (if applicable)
to any amendment, modification, change or waiver to or under any Series Document
if the Rating Agency Condition shall have been satisfied with respect to such
amendment, modification, change or waiver; provided, further, that neither the
consent of the Administrative Agent nor the consent of any Purchaser shall be
required for (a) the issuance of any Series after the Closing Date or (b) any
amendment contemplated by Section 13.1(a) of the Pooling and Servicing
Agreement.
ARTICLE VIIA
COVENANTS OF DFS
SECTION 7A.01 Information from DFS. So long as the Series 1999-1
Certificates remain outstanding, DFS will furnish to the Administrative Agent:
(a) a copy of each certificate, opinion, report, statement, notice or
other communication (other than investment instructions) which the Series
Documents require to be furnished by or on behalf of DFS or the Seller to the
Trustee or the Rating Agencies under any Series Document, concurrently
therewith, and promptly after receipt thereof, a copy of each notice, demand or
other communication received by or on behalf of DFS or the Seller under any
Series Document;
(b) such other information (including financial information),
documents, records or reports respecting the Trust, the Receivables, the Seller
or the Servicer as a Conduit Purchaser or Administrative Agent may from time to
time reasonably request;
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(c) promptly following the sending or filing thereof, copies of all
registration statements which the Seller or the Servicer files with the
Securities and Exchange Commission or any national securities exchange in
connection with the Trust, the Pooling and Servicing Agreement, any Series
Supplement or any Certificate; and
(d) as soon as possible and in any event within two Business Days
after the occurrence thereof, notice of each Early Amortization Event or event
which with the giving of notice or the passage of time or both would constitute
a Early Amortization Event.
SECTION 7A.02 Access to Information. So long as any Certificate
remains outstanding, DFS will, at any time from time to time during regular
business hours with reasonable notice to DFS, permit the Administrative Agent,
or its agents or representatives to:
(a) examine all books, records and documents (including computer
tapes and disks) in the possession or under the control of DFS relating to the
Receivables, and
(b) visit the offices and property of DFS for the purpose of
examining such materials described in clause (a) above.
Except as provided in Section 11.05, any information obtained by any
Purchaser or the Administrative Agent pursuant to this Section 7A.02 shall be
held in confidence by the Purchasers and the Administrative Agent unless and to
the extent such information (i) has become available to the public other than as
a result of disclosure in breach of this Certificate Purchase Agreement, (ii) is
required or requested by any Governmental Authority or in any court proceeding
or (iii) is required by any Governmental Rule. In the case of any disclosure
permitted by clause (ii) or (iii), each Purchaser and the Administrative Agent
shall use commercially reasonable efforts to (x) provide DFS with advance notice
of any such disclosure and (y) cooperate with DFS in limiting the extent or
effect of any such disclosure.
SECTION 7A.03 Security Interests; Further Assurances. DFS will take
all action necessary to maintain the Trustee's first priority perfected
ownership or security interest in the Receivables and the Collateral Security
granted pursuant to Section 2.1 of the Pooling and Servicing Agreement and the
Seller's first priority perfected ownership or security interest in the
Receivables and the Collateral Security granted pursuant to Section 2.1 of the
Receivables Contribution and Sale Agreement. DFS agrees to take any and all acts
and to execute any and all further instruments necessary or reasonably requested
by the Administrative Agent to more fully effect the purposes of this Agreement.
SECTION 7A.04 Covenants. DFS will duly observe and perform each of its
covenants set forth in the other Series Documents.
SECTION 7A.05 Amendments. DFS will not make, or permit any Person to
make, any material amendment, modification or change to, or provide any material
waiver under any Series Document without the prior written consent of the
Administrative Agent; provided
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that neither the Administrative Agent nor any Purchaser shall unreasonably
withhold or delay its consent (if applicable) to any amendment, modification,
change or waiver to or under any Series Document if the Rating Agency Condition
shall have been satisfied with respect to such amendment, modification, change
or waiver; provided, further, that neither the consent of the Administrative
Agent nor the consent of any Purchaser shall be required for (a) the issuance of
any Series after the Closing Date or (b) any amendment contemplated by Section
13.1(a) of the Pooling and Servicing Agreement.
ARTICLE VIII
ADDITIONAL COVENANTS
SECTION 8.01 Legal Conditions to Closing. The parties hereto will take
all reasonable action necessary to obtain (and will cooperate with one another
in obtaining) any consent, authorization, permit, license, franchise, order or
approval of, or any exemption by, any Governmental Authority or any other
Person, required to be obtained or made by it in connection with any of the
transactions contemplated by this Certificate Purchase Agreement.
SECTION 8.02 Expenses. Whether or not the Closing takes place, except
as otherwise expressly provided herein or in the Fee Letter, all costs and
expenses incurred in connection with this Certificate Purchase Agreement and the
transactions contemplated hereby shall (as between the Seller and the
Purchasers) be paid by the Seller.
SECTION 8.03 Mutual Obligations. On and after the Closing, each party
hereto will do, execute and perform all such other acts, deeds and documents as
the other party may from time to time reasonably require in order to carry out
the intent of this Certificate Purchase Agreement.
SECTION 8.04 Restrictions on Transfer. The Administrative Agent agrees
that it will comply with the restrictions on transfer of the Certificates set
forth in the Pooling and Servicing Agreement and the Series Supplement and that
it will resell the Certificates only in compliance with such restrictions;
provided, however, that in accordance with Section 9.9(a) of the Series
Supplement, so long as FNBC is the Administrative Agent, the Administrative
Agent shall not be required to sign an Investment Letter in its capacity as a
Series 1999-1 Certificateholder.
SECTION 8.05 Consents, etc. Each of the Purchasers and the
Administrative Agent agrees not to unreasonably withhold or delay its consent to
any amendment or other matter requiring consent of Certificateholders under a
provision of any Series Document to the extent that such provision specifies
that such consent is not to be unreasonably withheld or delayed.
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ARTICLE IX
INDEMNIFICATION
SECTION 9.01 Indemnification. (a) The Seller hereby agrees to
indemnify and hold harmless each Indemnified Party against any and all losses,
claims, damages, liabilities or expenses (including legal and accounting fees),
other than DFS Losses (collectively, exclusive of DFS Losses, "Seller Losses"),
for (or on account of or arising from or in connection with) any breach of any
representation, warranty or covenant of the Seller in this Certificate Purchase
Agreement or in any certificate or other written material delivered pursuant
hereto, as such Seller Losses are incurred (payable promptly upon written
request).
(b) DFS hereby agrees to indemnify and hold harmless each Indemnified
Party against any and all losses, claims, damages, liabilities or expenses
(including legal and accounting fees) (collectively, "DFS Losses"), for (or on
account of or arising from or in connection with) any breach of any
representation, warranty or covenant of DFS in this Certificate Purchase
Agreement or in any certificate or other written material delivered pursuant
hereto, as such DFS Losses are incurred (payable promptly upon written request).
(c) Notwithstanding Sections 9.01(a) and (b), in no event shall any
Indemnified Party be indemnified for Seller Losses or DFS Losses to the extent
(i) resulting from the performance of the Receivables, market fluctuations, or
other similar market or investment risks associated with ownership of the
Certificates, (ii) which would otherwise be covered in Sections 9.04 and 9.05
hereof, (iii) arising from such Person's gross negligence or willful misconduct,
(iv) arising from a breach of any representation or warranty set forth in the
Pooling and Servicing Agreement, a remedy for the breach of which is provided in
Section 2.3, 2.4, 2.8 or 3.3 of the Pooling and Servicing Agreement or (v)
arising from a breach of any representation or warranty set forth in the
Receivables Contribution and Sale Agreement, a remedy for the breach of which is
provided in Section 2.2, 2.3 or 2.7 of the Receivables Contribution and Sale
Agreement.
SECTION 9.02 Procedure. In order for an Indemnified Party to be
entitled to any indemnification provided for under this Certificate Purchase
Agreement in respect of, arising out of, or involving a claim made by any Person
against the Indemnified Party (a "Third Party Claim"), such Indemnified Party
must notify DFS or the Seller, as applicable (the "Applicable Indemnifying
Party") in writing of the Third Party Claim within a reasonable time after
receipt by such Indemnified Party of written notice of the Third Party Claim
unless the Applicable Indemnifying Party shall have previously obtained actual
knowledge thereof. Thereafter, the Indemnified Party shall deliver to the
Applicable Indemnifying Party, within a reasonable time after the Indemnified
Party's receipt thereof, copies of all notices and documents (including court
papers) received by the Indemnified Party relating to the Third Party Claim.
SECTION 9.03 Defense of Claims. If a Third Party Claim is made against
an Indemnified Party, (a) the Applicable Indemnifying Party will be entitled to
participate in the
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defense thereof and, (b) if it so chooses, to assume the defense thereof with
counsel selected by the Applicable Indemnifying Party, provided that in
connection with such assumption (i) such counsel is not reasonably objected to
by the Indemnified Party and (ii) the Applicable Indemnifying Party first admits
in writing its liability to indemnify the Indemnified Party with respect to all
elements of such claim in full. Should the Applicable Indemnifying Party so
elect to assume the defense of a Third Party Claim, the Applicable Indemnifying
Party will not be liable to the Indemnified Party for any legal expenses
subsequently incurred by the Indemnified Party in connection with the defense
thereof. If the Applicable Indemnifying Party elects to assume the defense of a
Third Party Claim, the Indemnified Party will (i) cooperate in all reasonable
respects with the Applicable Indemnifying Party in connection with such defense
and (ii) not admit any liability with respect to, or settle, compromise or
discharge, such Third Party Claim without the Applicable Indemnifying Party's
prior written consent, as the case may be. If the Applicable Indemnifying Party
shall assume the defense of any Third Party Claim, the Indemnified Party shall
be entitled to participate in (but not control) such defense with its own
counsel at its own expense. If the Applicable Indemnifying Party does not assume
the defense of any such Third Party Claim, the Indemnified Party may defend the
same in such manner as it may deem appropriate, including settling such claim or
litigation after giving notice to the Applicable Indemnifying Party of such
terms and the Applicable Indemnifying Party will promptly reimburse the
Indemnified Party upon written request. Anything contained in this Certificate
Purchase Agreement to the contrary notwithstanding, no Applicable Indemnifying
Party shall be entitled to assume the defense of any part of a Third Party Claim
that seeks an order, injunction or other equitable relief or relief for other
than money damages against the Indemnified Party.
SECTION 9.04 Indemnity for Taxes, Reserves and Expenses. (a) If after
the date hereof, the adoption of any Governmental Rule or bank regulatory
guideline or any amendment or change in the interpretation of any existing or
future Governmental Rule or bank regulatory guideline by any Governmental
Authority charged with the administration, interpretation or application
thereof, or the compliance with any directive of any Governmental Authority (in
the case of any bank regulatory guideline, whether or not having the force of
Governmental Rule):
(i) shall subject any Indemnified Party to any tax, duty, deduction
or other charge with respect to the Receivables, the Pooling and Servicing
Agreement, the Series Supplement, the Certificates, this Certificate Purchase
Agreement or payments of amounts due thereunder, or shall change the basis of
taxation of payments to any Indemnified Party of amounts payable in respect
thereof (except for changes in the rate of general corporate, franchise, net
income or other income tax (including by means of withholding) imposed on such
Indemnified Party by the United States of America, the jurisdiction in which
such Indemnified Party's principal executive office is located or any other
jurisdiction in which the Indemnified Party would be subject to such tax even if
the transactions contemplated by this Agreement had not occurred); or
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(ii) shall impose, modify or deem applicable any reserve, capital,
special deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System)
against assets of, deposits with or for the account of, or credit extended by,
any Indemnified Party or shall impose on any Indemnified Party or on the United
States market for certificates of deposit or the London interbank market any
other condition affecting the Receivables, the Pooling and Servicing Agreement,
the Series Supplement, the Certificates, this Certificate Purchase Agreement or
payments of amounts due thereunder (including with respect to Eurocurrency
liability reserves); or
(iii) imposes upon any Indemnified Party any other cost or expense
(including, without limitation, reasonable attorneys' fees and expenses, and
expenses of litigation or preparation therefor in contesting any of the
foregoing if such a contest is requested by the Applicable Indemnifying Party)
with respect to the Receivables, the Certificates, any Series Document or
payments of amounts due hereunder or thereunder;
and the result of any of the foregoing is to increase the cost or reduce the
payments to such Indemnified Party with respect to the Receivables, the Pooling
and Servicing Agreement, the Series Supplement, the Certificates, this
Certificate Purchase Agreement or payments of amounts due thereunder or the
obligations thereunder or the funding of any Purchases with respect thereto by
any Purchaser, by an amount deemed by such Indemnified Party to be material,
then the Seller agrees to pay such Indemnified Party, within 10 days after
demand by such Indemnified Party, such additional amount or amounts as will
compensate such Indemnified Party for such increased cost or reduced payments.
(b) If any Indemnified Party shall have determined that, after the
date hereof, the adoption of any applicable Law or bank regulatory guideline
regarding capital adequacy, or any change therein, or any change in the
interpretation thereof by any Governmental Authority, or any directive regarding
capital adequacy (in the case of any bank regulatory guideline, whether or not
having the force of law) of any such Governmental Authority, has or would have
the effect of reducing the rate of return on capital of such Indemnified Party
(or its parent) as a consequence of such Indemnified Party's obligations
hereunder or with respect hereto to a level below that which such Indemnified
Party (or its parent) could have achieved but for such adoption, change, request
or directive (taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Indemnified Party to be material, then
from time to time, the Seller agrees to pay such Indemnified Party, within 10
days after demand by any such Indemnified Party, such additional amount or
amounts as will compensate such Indemnified Party (or its parent) for such
reduction.
(c) Any Indemnified Party who makes a demand for payment of increased
costs or capital pursuant to Section 9.04(a) or (b) shall promptly deliver to
the Seller a certificate setting forth in reasonable detail the computation of
such increased costs or capital and specifying the basis therefor and such other
information as may be reasonably requested by the Seller. In the absence of
manifest error, such certificate shall be conclusive and binding for all
purposes. Each Indemnified Party shall use reasonable efforts to mitigate the
effect upon the
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Seller of any such increased costs or capital requirements; provided, it shall
not be obligated to take any action that it determines would be disadvantageous
to it or inconsistent with its policies.
SECTION 9.05 Costs, Expenses, Taxes, Breakage Payments and Increased
Costs under Certificate Purchase Agreement and Program Facility. (a) The Seller
shall be obligated to pay on demand to each Purchaser and the Administrative
Agent (i) all reasonable costs and expenses in connection with the preparation,
execution and delivery of this Certificate Purchase Agreement, the other
documents to be delivered hereunder or in connection herewith and any requested
amendments, waivers or consents or examination or visit by the Administrative
Agent pursuant to Section 7.01 or 7A.02 hereof including, without limitation,
the reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent, with respect thereto and with respect to advising the Administrative
Agent as to its rights and remedies under this Certificate Purchase Agreement
and the other documents delivered hereunder or in connection herewith and (ii)
all costs and expenses, if any, in connection with the enforcement of this
Certificate Purchase Agreement and the other documents delivered hereunder or in
connection herewith.
(b) In addition, the Seller shall be obligated to pay on demand any
and all stamp and other taxes and fees payable in connection with the execution,
delivery, filing and recording of this Certificate Purchase Agreement, the
Certificates or the other documents and agreements to be delivered hereunder,
and agrees to hold each Purchaser and its Administrative Agent harmless from and
against any liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes and fees.
(c) The Seller shall be obligated to pay to the Purchasers promptly
on request by the Administrative Agent, the amount of any Additional Amounts to
the extent not paid when required pursuant to Section 4.6 of the Series
Supplement; provided that such payment obligation of the Seller shall be
satisfied only out of funds payable to the Seller pursuant to the Series
Documents. The other provisions of this Article IX are subject to the preceding
sentence.
(d) If a Conduit Purchaser becomes obligated to compensate any
financial institution under its commercial paper program as a result of any
events or circumstances similar to those described in Sections 9.04 or 9.05(c),
such Conduit Purchaser shall promptly deliver to the Seller a certificate
setting forth in reasonable detail the computation of such amounts. In the
absence of manifest error, such certificate shall be conclusive and binding for
all purposes. The Seller shall be obligated to pay to the Conduit Purchaser,
promptly after receipt of such certificate, such additional amounts as may be
necessary to reimburse the Conduit Purchaser for any amounts so paid by the
Conduit Purchaser. With respect to amounts to be paid pursuant to this Section
9.05(d) as a result of any events or circumstances similar to those described in
Section 9.04 or 9.05(c) hereof, the Conduit Purchaser shall request the party to
be compensated to use its reasonable efforts to mitigate the effect upon the
Seller of any such increased costs or capital requirements; provided, such party
shall not be obligated to take any action that it determines would be
disadvantageous to it or inconsistent with its policies.
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ARTICLE X
THE ADMINISTRATIVE AGENT
SECTION 10.01 Authorization and Action. Each Purchaser hereby accepts
the appointment of and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. The Administrative Agent reserves the right, in
its sole discretion, to take any actions and exercise any rights or remedies
under this Certificate Purchase Agreement and any related agreements and
documents. Except for actions which the Administrative Agent is expressly
required to take pursuant to this Certificate Purchase Agreement or the
applicable Asset Purchase Agreement, the Administrative Agent shall not be
required to take any action which exposes the Administrative Agent to personal
liability or which is contrary to applicable law unless the Administrative Agent
shall receive further assurances to its satisfaction from the Purchasers, of the
indemnification obligations under Section 10.04 hereof against any and all
liability and expense which may be incurred in taking or continuing to take such
action. The Administrative Agent agrees to give to the Purchasers prompt notice
of each notice and determination given to it by the Seller, the Servicer or the
Trustee, pursuant to the terms of this Certificate Purchase Agreement, the
Pooling and Servicing Agreement or the Series Supplement. Subject to Section
10.06 hereof, the appointment and authority of the Administrative Agent
hereunder shall terminate upon (i) the payment to (a) the Purchasers of all
amounts owing to the Purchasers hereunder and (b) the Administrative Agent of
all amounts due hereunder and (ii) the Termination Date specified in the Series
Supplement.
SECTION 10.02 Administrative Agent's Reliance, etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them as
Administrative Agent under or in connection with this Certificate Purchase
Agreement or any related agreement or document, except for its or their own
gross negligence or willful misconduct. Without limiting the foregoing, the
Administrative Agent: (i) may consult with legal counsel, independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (ii) makes no warranty or
representation to the Purchasers and shall not be responsible to the Purchasers
for any statements, warranties or representations made by the Seller or DFS (in
any capacity) in connection with any Series Document; (iii) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of any Series Document on the part of the
Seller or DFS (in any capacity) or to inspect the property (including the books
and records) of the Seller or DFS (in any capacity); (iv) shall not be
responsible to any Purchaser for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Certificate Purchase
Agreement or any other instrument or document furnished pursuant hereto; and (v)
shall incur no liability under or in respect of this Certificate Purchase
Agreement by acting upon any notice (including notice by telephone),
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consent, certificate or other instrument or writing (which may be by telex)
believed by it in good faith to be genuine and signed or sent by the proper
party or parties.
SECTION 10.03 Administrative Agent and Affiliates. FNBC and its
respective Affiliates may generally engage in any kind of business with the
Seller, DFS or any Dealer, any of their respective Affiliates and any Person who
may do business with or own securities of the Seller, DFS or any Dealer or any
of their respective Affiliates, all as if such entities were not the
Administrative Agent and without any duty to account therefor to the Purchasers.
SECTION 10.04 Indemnification. Each Purchaser (other than the Conduit
Purchasers) severally agrees to indemnify the Administrative Agent (to the
extent not reimbursed by the Seller or DFS), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Certificate Purchase Agreement or any action
taken or omitted by the Administrative Agent under this Certificate Purchase
Agreement; provided, that (i) no Purchaser shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting or arising from the
Administrative Agent's gross negligence or willful misconduct and (ii) no
Purchaser shall be liable for any amount in respect of any compromise or
settlement or any of the foregoing unless such compromise or settlement is
approved by the Conduit Purchaser and the majority of the Purchasers (other than
the Conduit Purchaser) (based on purchase commitments under the applicable Asset
Purchase Agreement). Without limitation of the generality of the foregoing, each
Purchaser (other than a Conduit Purchaser) agrees to reimburse the
Administrative Agent, promptly upon demand, for any reasonable out-of-pocket
expenses (including reasonable counsel fees) incurred by the Administrative
Agent in connection with the administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Certificate
Purchase Agreement, provided, that no Purchaser shall be responsible for the
costs and expenses of the Administrative Agent in defending itself against any
claim alleging the gross negligence or willful misconduct of the Administrative
Agent to the extent such gross negligence or willful misconduct is determined by
a court of competent jurisdiction in a final and non-appealable decision.
SECTION 10.05 Purchase Decision. Each Purchaser acknowledges that it
has, independently and without reliance upon the Administrative Agent, and based
on such documents and information as it has deemed appropriate, made its own
evaluation and decision to enter into this Certificate Purchase Agreement and to
purchase an interest in the Certificates. Each Purchaser also acknowledges that
it will, independently and without reliance upon the Administrative Agent or any
of its Affiliates, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own decisions in taking or not
taking action under this Certificate Purchase Agreement or any related
agreement, instrument or other document.
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SECTION 10.06 Successor Administrative Agent. The Administrative Agent
may resign at any time by giving sixty days' written notice thereof to the
Purchasers, the Seller, the Servicer and the Trustee. Upon any such resignation,
the Purchasers shall have the right to appoint a successor Administrative Agent
approved by the Seller (which approval will not be unreasonably withheld or
delayed). If no successor Administrative Agent shall have been so appointed and
shall have accepted such appointment, within sixty days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Purchasers, appoint a successor
Administrative Agent. If such successor Administrative Agent is not an Affiliate
of the resigning Administrative Agent, such successor Administrative Agent shall
be subject to the Seller's prior written approval (which approval will not be
unreasonably withheld or delayed). Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations under this Certificate Purchase Agreement. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article X shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was the Administrative Agent under this
Certificate Purchase Agreement.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Amendments. No amendment or waiver of any provision of
this Certificate Purchase Agreement shall in any event be effective unless the
same shall be in writing and signed by all of the parties hereto, and then such
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. The Servicer shall give the Rating
Agencies and the Trustee (i) prior notice of any such amendment or waiver and
(ii) after the execution of any such amendment or waiver, copies thereof.
SECTION 11.02 Notices. All notices and other communications provided
for hereunder shall, unless otherwise stated herein, be in writing (including
telecopies, telegraphic, telex or cable communication) and mailed, telecopied,
telegraphed, cabled or delivered, as to each party hereto, at its address set
forth in Schedule I hereto or at such other address as shall be designated by
such party in a written notice to the other parties hereto. All such notices and
communications shall, when mailed, telecopied, telegraphed or cabled, be
effective when deposited in the mails, confirmed by telephone, delivered to the
telegraph company or delivered to the cable company, respectively. All notices
to the Trustee or the Rating Agencies shall be made in accordance with Section
13.6 of the Pooling and Servicing Agreement.
SECTION 11.03 No Waiver; Remedies. No failure on the part of any party
hereto to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver
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<PAGE>
thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 11.04 Binding Effect; Assignability. (a) This Certificate
Purchase Agreement shall be binding upon and inure to the benefit of the Seller,
DFS, the Administrative Agent and the Purchasers party to this Agreement and
their respective successors and assigns (including any subsequent holders of the
Certificates); provided, however, that the Seller shall not have the right to
assign its rights hereunder or any interest herein (by operation of law or
otherwise) without the prior written consent of the Administrative Agent. The
Administrative Agent agrees that it shall not transfer a Certificate without the
Seller's prior written consent, unless such transfer (x) is to a Committed
Purchaser or Liquidity Purchaser, (y) is to a RIC or (z) occurs after the
commencement of the Early Amortization Period.
(b) Each of the Purchasers and the Administrative Agent shall comply
with all of the provisions of Section 9.9 of the Supplement applicable to Series
1999-1 Certificateholders regardless of the fact that the Administrative Agent
may be the Series 1999-1 Certificateholder.
(c) Without the consent of the Seller, but subject to Section
11.04(b), each Committed Purchaser party to this Certificate Purchase Agreement
may assign all or a portion of its rights and obligations under this Certificate
Purchase Agreement to any financial or other institution acceptable to the
Administrative Agent. The parties to each such assignment shall execute and
deliver an Assignment and Acceptance to the Administrative Agent, and the
Administrative Agent shall promptly notify the Seller of such assignment. From
and after the effective date of such Assignment and Acceptance, the assigning
Committed Purchaser shall be relieved of its obligations hereunder to the extent
so assigned.
(d) Any Purchaser may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more Persons (each, a
"Participant") participating interests in all or a portion of its rights and
obligations under this Certificate Purchase Agreement. Notwithstanding any such
sale by a Purchaser of participating interests to a Participant, such
Purchaser's rights and obligations under this Certificate Purchase Agreement
shall remain unchanged, such Purchaser shall remain solely responsible for the
performance thereof, and the Seller, the Administrative Agent and the other
parties hereto shall continue to deal solely and directly with such Purchaser in
connection with such Purchaser's rights and obligations under this Certificate
Purchase Agreement. The Seller also agrees that each Participant shall be
entitled to the benefits of Article IX hereof; provided, however, that all
amounts payable by the Seller to any such Participant shall be limited to the
amounts which would have been payable to the Purchaser selling such
participating interest had such interest not been sold.
(e) This Certificate Purchase Agreement shall create and constitute
the continuing obligation of the parties hereto in accordance with its terms,
and shall remain in full
29
<PAGE>
force and effect until such time as all amounts payable with respect to the
Certificates shall have been paid in full.
SECTION 11.05 Provision of Documents and Information. The Seller
acknowledges and agrees that the Conduit Purchasers, the Committed Purchaser and
Administrative Agent are permitted to provide to the Liquidity Purchasers,
permitted assignees and participants, the placement agents for their respective
commercial paper notes, the rating agencies with respect to such notes and other
liquidity and credit providers under their respective commercial paper programs,
opinions, certificates, documents and other information relating to the Seller,
DFS and the Receivables delivered to the Conduit Purchasers, the Committed
Purchaser or the Administrative Agent pursuant to this Certificate Purchase
Agreement.
SECTION 11.06 GOVERNING LAW. THIS CERTIFICATE PURCHASE AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS.
SECTION 11.07 No Proceedings. (a) Each party hereto agrees that so
long as any senior indebtedness of a Conduit Purchaser shall be outstanding or
there shall not have elapsed one year plus one day since the last day on which
any Commercial Paper or other senior indebtedness of a Conduit Purchaser shall
have been outstanding, it shall not file, or join in the filing of, a petition
against such Conduit Purchaser under the Federal Bankruptcy Code, or commence or
join in the commencement of any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar proceeding against such Conduit
Purchaser.
(b) Each party hereto agrees that it shall not at any time file, or
join in the filing of, a petition against the Seller or the general partner of
the Seller or the Trust under the Federal Bankruptcy Code, or commence or join
in the commencement of any bankruptcy, reorganization, arrangement, insolvency,
liquidation or other similar proceeding against the Seller or the general
partner of the Seller or the Trust.
SECTION 11.08 Execution in Counterparts. This Certificate Purchase
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same agreement.
SECTION 11.09 No Recourse. The obligations of any Purchaser under this
Certificate Purchase Agreement, or any other agreement, instrument, document or
certificate executed and delivered by or issued by such Purchaser or any officer
thereof are solely the corporate or partnership obligations of such Purchaser.
No recourse shall be had for payment of any fee or other obligation or claim
arising out of or relating to this Certificate Purchase Agreement or any other
agreement, instrument, document or certificate executed and delivered or issued
by such Purchaser or any officer thereof in connection therewith, against any
stockholder, limited partner, employee, officer, director or incorporator of
such Purchaser.
30
<PAGE>
SECTION 11.10 Limited Recourse. The obligations of the Seller under
this Certificate Purchase Agreement and the other Series Documents are solely
the limited partnership obligations of the Seller. No recourse shall be had for
the payment of any fee or other obligation or claim arising out of or relating
to this Certificate Purchase Agreement or the other Series Documents or any
other agreement, instrument, document or certificate executed and delivered or
issued by the Seller or by any partner of the Seller or any officer thereof in
connection herewith or therewith, against any stockholder, employee, officer or
director of the Seller or of any partner of the Seller.
Without limiting the generality of the foregoing, and notwithstanding
any other provision of this Certificate Purchase Agreement, (i) the Seller shall
have no liability for any obligation of DFS or for any claim against DFS, and
(ii) DFS shall have no liability for any obligation of the Seller or for any
claim against the Seller.
SECTION 11.11 Survival. All representations, warranties, covenants,
and indemnifications contained in this Certificate Purchase Agreement,
including, without limitation, Article IX and Sections 11.07, 11.09 and 11.10,
and in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the sale, transfer or repayment of the
Certificates.
SECTION 11.12 Tax Characterization. Each party to this Certificate
Purchase Agreement (a) acknowledges and agrees that it is the intent of the
parties to this Certificate Purchase Agreement that, for federal, state and
local income, single business and franchise tax purposes, the Certificates will
be treated as evidence of indebtedness secured by the Receivables and proceeds
thereof and the Trust will not be characterized as an association (or publicly
traded partnership) taxable as a corporation, (b) agrees to treat the
Certificates for federal, state and local income, single business and franchise
tax purposes as indebtedness and (c) agrees that the provisions of this
Certificate Purchase Agreement and all related Series Documents shall be
construed to further these intentions of the parties.
SECTION 11.13 Severability; Certificate Rate Limitation. (a) If any
one or more of the covenants, agreements, provisions or terms of this
Certificate Purchase Agreement shall for any reason whatsoever be held invalid,
then such covenants, agreements, provisions or terms shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this
Certificate Purchase Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Certificate Purchase Agreement or
of the Series 1999-1 Certificates.
(b) Notwithstanding anything in this Certificate Purchase Agreement,
the other Series Documents or any Series 1999-1 Certificate to the contrary, if
at any time any Certificate Rate, together with all fees, charges and other
amounts which are treated as interest on the Series 1999-1 Certificates, under
applicable law (collectively the "Charges"), shall exceed the maximum lawful
rate (the "Maximum Rate") which may be contracted for, charged, taken, received
or reserved by the Series 1999-1 Certificateholders in accordance with the terms
of this Certificate Purchase Agreement, the other Series Documents or any Series
1999-1 Certificate,
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then such Certificate Rate, together with all Charges payable in respect of the
Series 1999-1 Certificates, shall be limited to the Maximum Rate and, to the
extent lawful, such Certificate Rate and Charges that would have been payable in
respect of the Series 1999-1 Certificates, but were not payable as a result of
the operation of this Section, shall be cumulated and the Certificate Rate and
Charges payable to the Series 1999-1 Certificateholders in respect of other
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount shall have been received by the Series 1999-1
Certificateholders.
SECTION 11.14 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 11.15 Submission to Jurisdiction. Each of the parties hereto
hereby irrevocably and unconditionally: (a) submits for itself and its property
in any legal action or proceeding relating to this Certificate Purchase
Agreement, any other Series Document, any Series 1999-1 Certificate or the other
documents executed and delivered in connection herewith or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to such Person at its
address determined in accordance with Section 11.02; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to sue in any other jurisdiction.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Certificate Purchase
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P., as Seller
By DEUTSCHE FLOORPLAN RECEIVABLES, INC., its
general partner
By:______________________________________________
Name: Richard H. Schumacher
Title: President
By:______________________________________________
Name: Richard C. Goldman
Title: Senior Vice President
DEUTSCHE FINANCIAL SERVICES CORPORATION, as
Servicer
By:______________________________________________
Name: Richard H. Schumacher
Title: Senior Vice President
By:______________________________________________
Name: Richard C. Goldman
Title: Senior Vice President
S-1
<PAGE>
FALCON ASSET SECURITIZATION CORPORATION, as a
Conduit Purchaser
By:_____________________________________________
Name:
Title: Authorized Signer
S-2
<PAGE>
PREFERRED RECEIVABLES FUNDING CORPORATION, as a
Conduit Purchaser
By:_____________________________________________
Name:
Title: Authorized Signer
S-3
<PAGE>
INTERNATIONAL SECURITIZATION CORPORATION, as a
Conduit Purchaser
By:____________________________________________
Name:
Title: Authorized Signer
S-4
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO, as
Administrative Agent
By:_____________________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO, as a Committed
Purchaser
By:_____________________________________________
Name:
Title:
Purchaser Percentage: 100%
S-5
<PAGE>
EXHIBIT A
Purchase Request
[Letterhead of Deutsche Floorplan Receivables, L.P.]
[Date]
<TABLE>
<C> <S> <C>
1. Proposed Purchase Date: ___________
2. Aggregate Purchase Price(s) (lesser of minimum amount
of $5,000,000 or remaining Maximum Funding Amount)......... $__________
3. Remaining Maximum Funding Amount (after giving effect to
the requested Purchase(s))................................. $__________
4. [Specify type(s) and amount(s) of Tranche(s) and Tranche
Period(s)]................................................. $__________
</TABLE>
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
By: Deutsche Floorplan Receivables, Inc., its
general partner
By_____________________________________________
Name___________________________________________
Title__________________________________________
By_____________________________________________
Name___________________________________________
Title__________________________________________
A-1
<PAGE>
SCHEDULE I
Addresses for Notice
In the case of the Seller:
- -------------------------
Deutsche Floorplan Receivables, L.P.
655 Maryville Centre Drive
St. Louis, Missouri 63141
Attention: President
In the case of the Servicer:
- ---------------------------
Deutsche Financial Services Corporation
655 Maryville Centre Drive
St. Louis, Missouri 63141
Facsimile: (314) 523-3999
Attention: Senior Vice President or Chief Legal Officer
In the case of the Administrative Agent and the Committed Purchaser:
- -------------------------------------------------------------------
The First National Bank of Chicago
One First National Plaza
Suite 0079
Chicago, Illinois 60670
Facsimile: (312) 732-1844
Attention: Laura Mahaney
In the case of the Conduit Purchasers:
- -------------------------------------
Falcon Asset Securitization Corporation
c/o The First National Bank of Chicago
One First National Plaza
Suite 0079
Chicago, Illinois 60670
Facsimile: (312) 732-1844
Attention: Laura Mahaney
Preferred Receivables Funding Corporation
c/o The First National Bank of Chicago
One First National Plaza
Suite 0079
Chicago, Illinois 60670
Facsimile: (312) 732-1844
Attention: Laura Mahaney
<PAGE>
International Securitization Corporation
c/o The First National Bank of Chicago
One First National Plaza
Suite 0079
Chicago, Illinois 60670
Facsimile: (312) 732-1844
Attention: Laura Mahaney
