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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) April 27, 2000
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Deutsche Floorplan Receivables, L.P.
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(Exact Name of Registrant as Specified in its Charter)
Distribution Financial Services Floorplan Master Trust
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(Co-Registrant and Issuer with Respect to the Securities)
N.A.
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(State or Other Jurisdiction of Incorporation)
333-74457 and 333-74457-01 88-0355652
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(Commission File Number) (Registrant's 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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Item 5. Other Events.
The Registrant and Co-Registrant are filing the exhibits listed in Item
7(c) below in connection with the issuance of Floating Rate Asset Backed
Certificates, Series 2000-1 and Series 2000-2 by Distribution Financial Services
Floorplan Master Trust.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
Exhibit
No. Document Description
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1.1 Underwriting Agreement dated April 20, 2000 among Deutsche
Bank Securities Inc. ("DBS"), the Registrant and Deutsche
Financial Services Corporation ("DFS").
1.2 Terms Agreement for Series 2000-1 dated April 20, 2000 among
DBS, the Registrant and DFS.
1.3 Terms Agreement for Series 2000-2 dated April 20, 2000 among
DBS, the Registrant and DFS.
4.1 Amended and Restated Pooling and Servicing Agreement dated as
of April 1, 2000 among the Registrant, DFS and The Chase
Manhattan Bank, as Trustee (the "Trustee").
4.2 Series 2000-1 Supplement dated as of April 1, 2000 among the
Registrant, DFS and the Trustee.
4.3 Series 2000-2 Supplement dated as of April 1, 2000 among the
Registrant, DFS and the Trustee.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
each of the registrant and the co- registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
May 10, 2000 Deutsche Floorplan Receivables, L.P., on
behalf of itself, as Registrant
By: Deutsche Floorplan Receivables, Inc., its
General Partner
By: /s/ Naran U. Burchinow
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Name: Naran U. Burchinow
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Title: Vice President and Assistant Secretary
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May 10, 2000 Deutsche Floorplan Receivables, L.P., on
behalf of Distribution Financial Services
Floorplan Master Trust, as Co-Registrant
By: Deutsche Floorplan Receivables, Inc., its
General Partner
By: /s/ Naran U. Burchinow
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Name: Naran U. Burchinow
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Title: Vice President and Assistant Secretary
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EXHIBIT 1.1
EXECUTION
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
Asset Backed Certificates
UNDERWRITING AGREEMENT
April 20, 2000
DEUTSCHE BANK SECURITIES INC.
Acting on behalf of itself and, if applicable, as the Representative of the
several Underwriters named in Schedule 1 to the Terms Agreement (in either
such capacity sometimes herein the "Representative")
31 West 52nd Street
New York, New York 10019
Ladies and Gentlemen:
Section 1. Introductory. Deutsche Floorplan Receivables, L.P., a Delaware
limited partnership (the "Seller"), proposes to sell Asset Backed Certificates
(the "Certificates") from time to time in one or more series (each, a "Series").
Each Series, which may include one or more classes of Certificates, will be
issued by the Distribution Financial Services Floorplan Master Trust (the
"Trust") formed pursuant to the Pooling and Servicing Agreement as amended and
restated as of April 1, 2000 (as the same may be supplemented, amended, amended
and restated or otherwise modified from time to time, and including the
supplement for the related Series, the "Pooling and Servicing Agreement") among
the Seller, Deutsche Financial Services Corporation ("DFS") as Servicer, and the
trustee specified therein (the "Trustee"). Each Certificate will represent a
fractional undivided interest in the assets of the Trust. The assets of the
Trust (the "Trust Property") will include, among other things, a pool of dealer
floorplan receivables (the "Receivables").
The Certificates are more fully described in the Registration Statement (as
defined herein). Each Series of Certificates and any classes of Certificates
(each, a "Class") within such Series may vary as to, among other things, number
and types of Classes, principal or notional amount, interest rate, the
percentage interest, if any, evidenced by each Class in the payments of
principal of and interest on, or with respect to, the Trust Property, priority
of payment among Classes, credit enhancement with respect to the related Trust
Property or Certificates, the Classes of such Series subject to this
Underwriting Agreement, and any other terms contemplated by the Terms Agreement
(as defined herein) with respect to the Certificates of such Series.
Each offering of the Certificates to which this Underwriting Agreement
applies will be made pursuant to the Registration Statement through the
Representative or through an
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underwriting syndicate managed by the Representative. Whenever the Seller
determines to make such an offering of Certificates of a Series, it will enter
into an appropriate agreement (the "Terms Agreement"), a form of which is
attached hereto as Exhibit A, providing for the sale of certain classes of such
Certificates to, and the purchase and offering thereof by, the Representative
and such other underwriters, if any, as have authorized the Representative to
enter into such Terms Agreement on their behalf (the "Underwriters," which term
shall include the Representative, whether acting alone in the sale of such
Certificates, in which case any reference herein to the Representative shall be
deemed to refer to the Representative in its individual capacity as Underwriter
of the Certificates, or as a member of an underwriting syndicate). Such Terms
Agreement shall specify the undivided interest, principal or notional amount of
each Class of the Certificates to be issued, the Classes of Certificates subject
to this Underwriting Agreement, the price at which such Classes of Certificates
are to be purchased by the Underwriters from the Seller and the initial public
offering price or prices or the method by which the price or prices at which
such Certificates are to be sold will be determined.
Each such offering of Certificates as to which Deutsche Bank Securities
Inc. is the sole underwriter or acts as the Representative of the several
Underwriters will be governed by this Underwriting Agreement, as supplemented by
the applicable Terms Agreement, and this Underwriting Agreement and such Terms
Agreement shall inure to the benefit of and be binding upon each Underwriter
participating in the offering of such Certificates. This Underwriting Agreement
is non-exclusive, and the Seller may enter into any other underwriting agreement
with any other underwriter with respect to the offering and sale of Certificates
of a Series.
Section 2. Representations, Warranties and Covenants of DFS and the Seller.
Each of DFS and the Seller, as applicable, represents and warrants to, and
agrees with, each Underwriter, as of the date of the related Terms Agreement,
that:
(a) The registration statement specified in the related Terms Agreement, on
Form S-3, including a prospectus, has been filed with the Securities and
Exchange Commission (the "Commission") for the registration under the Securities
Act of 1933, as amended (the "Act"), of the Certificates, which registration
statement has been declared effective by the Commission. Such registration
statement, as amended to the date of the related Terms Agreement, including any
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the effective date of the
Registration Statement (as such date is defined in Rule 158(c) under the Act,
the "Effective Date"), is hereinafter called the "Registration Statement," and
such prospectus, as such prospectus is supplemented by a prospectus supplement
relating to the Certificates of the related Series, each in the form first filed
after the date of the related Terms Agreement pursuant to Rule 424(b) under the
Act, including any documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Act which were filed under the Exchange Act on or
before the date of such prospectus supplement (such prospectus supplement,
including such incorporated documents, in the form first filed after the date of
the related Terms Agreement pursuant to Rule 424(b) is hereinafter called the
"Prospectus Supplement"), is hereinafter called the "Prospectus" (except where
the context requires otherwise). Any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement, the
Prospectus or the Prospectus Supplement shall be deemed to refer to and include
the filing of any document under the Exchange Act after the
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Effective Date or the issue date of the Prospectus or Prospectus Supplement, as
the case may be, deemed to be incorporated therein by reference pursuant to Item
12 of Form S-3 under the Act.
(b) The related Registration Statement, at the time it became effective,
and the prospectus contained therein, and any amendments thereof and supplements
thereto filed prior to the date of the related Terms Agreement, conformed in all
material respects to the requirements of the Act and the rules and regulations
of the Commission thereunder (the "Rules and Regulations"); on the date of the
related Terms Agreement and on the related Closing Date, the Registration
Statement, the Prospectus and the related Prospectus Supplement, and any
amendments thereof and supplements thereto, will conform in all material
respects to the requirements of the Act and the Rules and Regulations; such
Registration Statement, at the time it became effective, did not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
such Prospectus and Prospectus Supplement, on the date of any filing pursuant to
Rule 424(b) and on the related Closing Date, will not include any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they are
made, not misleading; provided, however, that neither DFS nor the Seller makes
any representations or warranties as to the information contained in or omitted
from (A) such Registration Statement or such Prospectus (or any supplement
thereto) in reliance upon and in conformity with written information furnished
to the Seller by or on behalf of the Underwriters specifically for use in the
preparation thereof as specified in the related Terms Agreement or (B) any ABS
Filing (as defined herein), or in any amendment thereof or supplement thereto,
incorporated by reference in such Registration Statement or such Prospectus (or
any amendment thereof or supplement thereto).
(c) DFS is a corporation duly incorporated, validly existing and in good
standing under the laws of the state of its incorporation, the Seller is a
limited partnership duly formed, validly existing and in good standing under the
laws of its state of formation, and each of DFS and the Seller is duly qualified
to transact business and is in good standing in each jurisdiction in the United
States of America in which the conduct of its business or the ownership of its
property requires such qualification, with power to own, lease and operate its
property and conduct its business as it is currently conducted.
(d) Each of DFS and the Seller has, and will have, the requisite power to
execute and deliver the Pooling and Servicing Agreement, any series supplement
thereto relating to a Series of Certificates, and any other agreement or
document executed by either of them in connection with the issuance and sale of
the related Certificates (each, an "Agreement"), this Underwriting Agreement and
the Terms Agreement and to perform their respective obligations hereunder and
thereunder.
(e) Each of the Agreements, Terms Agreements and this Underwriting
Agreement has been, or will be, duly and validly authorized, executed and
delivered by each of DFS and the Seller, and each of the Agreements, Terms
Agreements and this Underwriting Agreement constitutes, or will constitute, the
valid, legal and binding obligation of each of DFS and the Seller, enforceable
against each of DFS and the Seller in accordance with its terms.
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(f) The Certificates of each Series conform, or will conform as of the
related Closing Date, to the description thereof contained in the Registration
Statement, the Prospectus, and the related Prospectus Supplement; and the
Certificates of such Series, on the related Closing Date, will have been duly
and validly authorized and, when such Certificates are duly and validly
executed, issued and delivered in accordance with the Agreements, and sold to
the Underwriters as provided herein and in the related Terms Agreement, will
each be validly issued and outstanding and entitled to the benefits of the
Agreements.
(g) Neither the execution and delivery by DFS or the Seller of any
Agreement, Terms Agreement or this Underwriting Agreement nor the consummation
by DFS or the Seller of the transactions contemplated herein or therein, nor the
issuance of the Certificates of a Series by the Trust or the public offering
thereof as contemplated in the Prospectus and the applicable Prospectus
Supplement, will conflict in any material respect with or result in a material
breach of, or constitute a material default (with notice or passage of time or
both) under, or result in the imposition of any lien, pledge, charge,
encumbrance, adverse claim or other security interest of any other person
(collectively, "Liens") upon any of the property or assets of DFS or the Seller
(except as required or permitted pursuant thereto or hereto), pursuant to any
material mortgage, indenture, loan agreement, contract or other instrument to
which DFS or the Seller is party or by which either of them is bound, nor will
such action result in any violation of any provisions of any applicable law,
administrative regulation or administrative or court decree, the certificate of
incorporation or by-laws of DFS or the certificate of limited partnership of the
Seller. Neither DFS nor the Seller is in violation of its certificate of
incorporation or certificate of limited partnership, as applicable, in default
in any material respect in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease, trust agreement, transfer and
servicing agreement or other instrument to which it is a party or by which it
may be bound, or to which any material portion of its property or assets is
subject.
(h) No legal or governmental proceedings are pending to which DFS or the
Seller is a party or of which any property of DFS or the Seller is the subject,
which if determined adversely to DFS or the Seller would, individually or in the
aggregate, have a material adverse effect on the financial position,
shareholders' equity or results of operations of DFS or the Seller; and to the
best of DFS's or the Seller's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(i) No consent, approval, authorization or order of, or registration,
filing or declaration with, any court or governmental agency or body is
required, or will be required, in connection with (i) the execution and delivery
by DFS or the Seller of any Agreement, Terms Agreement or this Underwriting
Agreement or the performance by DFS or the Seller of any Agreement, Terms
Agreement or this Underwriting Agreement or (ii) the offer, sale or delivery of
the Certificates of any Series, except such as shall have been obtained or made,
as the case may be, or will be obtained or made, as the case may be, prior to
the applicable Closing Date, or will not materially adversely affect the ability
of DFS or the Seller to perform its obligations under any Agreement, Terms
Agreement or this Underwriting Agreement.
(j) Each of DFS and the Seller possesses, and will possess, all material
licenses, certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory
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agencies or bodies necessary to conduct the business now conducted by it and as
described in the Prospectus and Prospectus Supplement, except to the extent that
the failure to have such licenses, certificates, authorities or permits does not
have a material adverse effect on the Certificates of any Series or the
financial condition of DFS or the Seller, and neither DFS nor the Seller has
received, nor will have received as of each Closing Date, any notice of
proceedings relating to the revocation or modification of any such license,
certificate, authority or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of its business, operations or financial condition.
(k) On the related Closing Date, (i) the Seller or the Trust will have good
and marketable title to the related Receivables, free and clear of any Lien,
except to the extent permitted in the Agreements, (ii) the Seller will not have
assigned to any person any of its right, title or interest in such Receivables
or in the Agreements, (iii) the Seller will have the power and authority to sell
such Receivables to the Trust.
(l) The properties and businesses of each of DFS and the Seller conform,
and will conform, in all material respects, to the descriptions thereof
contained in the Prospectus and the Prospectus Supplements.
(m) Since the date as of which information is given in the Registration
Statement, there has not been any material adverse change in the business or net
worth of the Seller or DFS.
Section 3. Purchase, Sale and Delivery of Certificates. (a) On the basis of
the representations, warranties and agreements contained in this Underwriting
Agreement and in the Terms Agreement for a particular offering of Certificates,
but subject to the terms and conditions set forth in this Underwriting Agreement
and subject to the execution of such Terms Agreement, the Seller agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Seller, the respective original
principal amounts of the related Certificates set forth in the related Terms
Agreement opposite the name of such Underwriter, plus any additional original
principal amount of Certificates which such Underwriter may be obligated to
purchase pursuant to Section 12 hereof, at the purchase price therefor set forth
in such Terms Agreement.
The parties hereto agree that settlement for all Certificates sold pursuant
to this Underwriting Agreement shall take place on the terms set forth herein
and not as set forth in Rule 15c6-1(a) under the Exchange Act.
(b) Against payment of the purchase price specified in the applicable Terms
Agreement in same day funds drawn to the order of the Seller (or paid by such
other manner as may be agreed upon by the Seller and the Representative), the
Seller will deliver the related Certificates of a Series to the Underwriters at
the offices of Mayer, Brown & Platt, 190 South LaSalle Street, Chicago, Illinois
60603 at such time as shall be specified in such Terms Agreement, or at such
other place and time as the Representative and the Seller shall agree upon, each
such time being herein referred to as a "Closing Date." The Certificates of each
Series will initially be in definitive, fully registered form or will be
maintained through the facilities of The Depository Trust Company, as indicated
in the applicable Prospectus Supplement.
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Section 4. Public Offering of Certificates. It is understood by the parties
hereto that, after the Registration Statement becomes effective, the
Underwriters propose to offer the Certificates for sale to the public (which may
include selected dealers), as set forth in the Prospectus.
Section 5. Covenants of DFS and the Seller. Each of DFS and the Seller
jointly and severally covenants and agrees with each Underwriter:
(a) That immediately following the execution of each Terms Agreement, the
Seller shall prepare a Prospectus Supplement setting forth the amount of
Certificates covered thereby and the terms thereof not otherwise specified in
the Prospectus, the price at which such Certificates are to be purchased by the
Underwriters from the Seller, either the initial public offering price or the
method by which the price at which such Certificates are to be sold will be
determined, the selling concessions and reallowances, if any, and such other
information as the Representative and the Seller deem appropriate in connection
with the offering of such Certificates; provided, however, that each of DFS and
the Seller shall make no amendment or supplement to the Registration Statement
affecting or relating to any material extent to the Certificates of a Series to
which this Underwriting Agreement relates, and shall make no amendment or
supplement to the Prospectus or the Prospectus Supplement without furnishing the
Representative with a copy of the proposed form thereof and providing the
Representative with a reasonable opportunity to review the same, and shall not
file any such amendment or supplement to which the Representative shall
reasonably object; and, provided further, that each of DFS and the Seller shall
advise the Representative, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or the Prospectus Supplement or
any amended Prospectus or Prospectus Supplement has been filed or mailed for
filing, of the issuance of any stop order by the Commission, of the suspension
of the qualification of the Certificates of a Series for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement, the Prospectus or the Prospectus Supplement or
for additional information; and, in the event of the issuance of any such stop
order or of any order preventing or suspending the use of any Prospectus or
Prospectus Supplement relating to the Certificates of a Series or suspending any
such qualification, promptly shall use its best efforts to obtain its
withdrawal.
(b) That the Seller shall cause any Computational Materials and any
Structural Term Sheets (each as defined herein) with respect to the Certificates
of a Series that are delivered by an Underwriter to the Seller pursuant to
Section 9 to be filed with the Commission on a Current Report on Form 8-K (an
"ABS Filing") pursuant to Rule 13a-11 under the Exchange Act on the business day
immediately following the later of (i) the day on which such Computational
Materials and Structural Term Sheets are delivered to counsel for the Seller by
an Underwriter prior to 1:00 p.m. New York time and (ii) the date on which the
related Prospectus Supplement is first made available to the public. The Seller
shall cause any Collateral Term Sheet with respect to the Certificates of a
Series that is delivered by the Representative to the Seller in accordance with
the provisions of Section 10 to be filed with the Commission on an ABS Filing
pursuant to Rule 13a-11 under the Exchange Act on the business day immediately
following the day on which such Collateral Term Sheet is delivered to counsel
for the Seller by the Representative.
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Each such ABS Filing shall be incorporated by reference in the related
Prospectus and the related Registration Statement.
(c) Promptly from time to time to take such action as the Representative
may reasonably request in order to qualify the Certificates of a Series for
offering and sale under the securities laws of such states as the Representative
may request and to continue such qualifications in effect so long as necessary
under such laws for the distribution of such Certificates; provided, that in
connection therewith neither DFS nor the Seller shall be required to qualify as
a foreign corporation to do business or to file a general consent to service of
process in any jurisdiction.
(d) To furnish to each Underwriter copies of the Registration Statement
(one of which will be signed and will include all exhibits), each related
preliminary prospectus, the Prospectus, and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as such
Underwriter may from time to time reasonably request; and, if the delivery of a
Prospectus or Prospectus Supplement shall be at the time required by law in
connection with sales of the Certificates of a Series and either (i) any event
shall have occurred as a result of which the Prospectus or Prospectus Supplement
would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or (ii) for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or Prospectus Supplement, to notify the Representative
and to prepare and furnish to the Representative as the Representative may from
time to time reasonably request an amendment or a supplement to the Prospectus
or Prospectus Supplement which will correct such statement or omission or effect
such compliance, or if it is necessary at any time to amend or supplement the
Prospectus or Prospectus Supplement to comply with the Act or the Rules and
Regulations, the Seller will promptly prepare and file with the Commission an
amendment or supplement that will correct such statement or omission or an
amendment that will effect such compliance; provided, however, that the Seller
will not be required to file any such amendment or supplement with respect to
any Computational Materials, Structural Term Sheets or Collateral Term Sheets
incorporated by reference in the Prospectus other than any amendments or
supplements of such Computational Materials or Structural Term Sheets that are
furnished to the Seller by the Underwriters pursuant to Section 9(c) hereof or
any amendments or supplements of such Collateral Term Sheets that are furnished
to the Seller by the Underwriters pursuant to Section 10(c) hereof which are
required to be filed in accordance therewith.
(e) To file or cause to be filed with the Commission all reports required
to be filed with respect to each Series pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act.
(f) So long as any of the Certificates of a Series are outstanding, to
furnish each Underwriter copies of all reports or other communications
(financial or other) furnished to holders of such Certificates, and to deliver
to the Underwriters during such same period (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed with the
Commission and (ii) such additional information concerning the business and
financial condition of the Seller as such Underwriter may from time to time
reasonably request.
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(g) To pay all expenses (other than fees of counsel for the Underwriters,
except as provided below) incident to the performance of the obligations under
this Underwriting Agreement and the related Terms Agreement, including:
(i) the word processing, printing and filing of the Registration Statement
as originally filed and of each amendment thereto;
(ii) the reproduction of this Underwriting Agreement, the related Terms
Agreement and the Pooling and Servicing Agreement, including the
supplement for the related Series;
(iii) the preparation, printing, issuance and delivery of the Certificates
of each Series to the Underwriters;
(iv) the fees and disbursements of counsel and accountants for DFS and/or
the Seller;
(v) the qualification of the Certificates of a Series under securities
laws in accordance with the provisions of Section 5(c) hereof,
including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection
with the preparation of the Blue Sky Survey;
(vi) if requested by the Representative, the determination of the
eligibility of the Certificates for investment and the reasonable fees
and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Legal
Investment Memorandum;
(vii) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment
thereto, of the preliminary prospectuses, and of the Prospectus and
Prospectus Supplement and any amendments or supplements thereto;
(viii) the printing and delivery to the Underwriters of copies of the Blue
Sky Survey and, if requested by the Representative, the Legal
Investment Memorandum, if any;
(ix) the fees of any rating agency rating the Certificates of a Series; and
(x) the fees and expenses of the Trustee and its counsel.
If the sale of the Certificates of a Series is not consummated by reason of
any failure, refusal or inability on the part of DFS or the Seller to perform
any agreement on its part to be performed, or because any condition of the
Underwriters' obligations hereunder required to be fulfilled shall not have been
fulfilled (other than as a result of any breach or default by the Underwriters),
each of DFS and the Seller shall jointly and severally be obligated to reimburse
the Underwriters for all out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Underwriters. For purposes of the preceding
sentence, the conditions in
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clauses (ii) and (iii) of Section 6(d) shall not be conditions required to be
fulfilled by DFS or the Seller.
(h) So long as the Certificates of a Series are outstanding, or until such
time as each Underwriter shall cease to maintain a secondary market in such
Certificates, whichever occurs first, to deliver to each Underwriter all
statements and reports furnished to the Trustee pursuant the Agreements, as soon
as such statements and reports are furnished to the Trustee.
(i) From and after the related Closing Date, not to take any action
inconsistent with the Trust's ownership of the related Receivables other than as
permitted by the Agreements.
(j) To the extent, if any, that the rating provided with respect to any
Class of Certificates of a Series by a rating agency or agencies that initially
rate such Certificates is conditional upon the furnishing of documents or the
taking of any other actions by DFS and/or the Seller, to furnish such documents
and take any such other actions.
(k) That during the period when a prospectus is required by law to be
delivered in connection with the sale of the Certificates of a Series pursuant
to this Underwriting Agreement and the related Terms Agreement, the Seller will
file, or cause the Trustee to file on behalf of the Trust, on a timely and
complete basis, all documents that are required to be filed by the Trust with
the Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
Section 6. Conditions Precedent to the Obligations of the Underwriters. The
obligation of the Underwriters to purchase and pay for the Certificates of a
Series is subject to the accuracy of the representations and warranties on the
part of DFS and the Seller herein and in the related Terms Agreement as of the
respective dates thereof and the related Closing Date, to the accuracy of the
statements of officers of DFS and the Seller made pursuant to the provisions
hereof and thereof, to the performance by each of DFS and the Seller of its
obligations hereunder and thereunder and to the following additional conditions
precedent:
(a) The Registration Statement shall have become effective not later than
4:00 p.m., New York time, on the day following the date of this Underwriting
Agreement or such later date as shall have been consented to by the
Representative; and prior to the related Closing Date no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
DFS or the Seller, shall be contemplated by the Commission. If the Seller has
elected to rely upon Rule 430A of the Rules and Regulations, the price of the
Certificates of a Series and any price-related information previously omitted
from the effective Registration Statement pursuant to such Rule 430A shall have
been transmitted to the Commission for filing pursuant to Rule 424(b) of the
Rules and Regulations within the prescribed time period, and prior to the
related Closing Date the Seller shall have provided evidence satisfactory to the
Representative of such timely filing, or a post-effective amendment providing
such information shall have been promptly filed and declared effective in
accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) Each of DFS and the Seller shall have delivered on or before the
related Closing Date to the Representative a certificate, dated as of such
Closing Date, signed by the president, a
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<PAGE>
senior vice president or a vice president of DFS or of the general partner of
the Seller, as the case may be, to the effect that the signer of such
certificate has carefully examined the Registration Statement, the Prospectus,
each Agreement and this Underwriting Agreement and related Terms Agreement and
that:
(i) to the best of such officer's knowledge, the representations and
warranties of DFS and/or the Seller, as the case may be, in this
Underwriting Agreement and the related Terms Agreement are true and
correct in all material respects at and as of such Closing Date with
the same effect as if made on such Closing Date;
(ii) each of DFS and the Seller, as the case may be, has complied with all
the Agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been initiated or, to DFS's or the Seller's knowledge, threatened as
of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such
person to believe that the Prospectus as amended and supplemented as
of such Closing Date contains any untrue statement of a material fact
or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) Since the respective dates as of which information is given in the
Prospectus and Prospectus Supplement, there shall not have occurred any material
adverse change or any development involving a prospective material adverse
change in or affecting particularly the business or assets of the Trust, the
Seller or DFS or any material adverse change in the financial position or
results or operations of the Trust, the Seller or DFS otherwise than as set
forth or contemplated in the Prospectus and Prospectus Supplement, which in any
such case makes it impracticable or inadvisable in the Representative's judgment
to proceed with the public offering or the delivery of the related Certificates
on the terms and in the manner contemplated in the related Terms Agreement and
Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the business, financial condition or
properties of DFS or the Seller which, in the Representative's judgment,
materially impairs the investment quality of the related Certificates, (ii) any
material adverse change in the financial markets in the United States or any
outbreak of hostilities or other calamity or crisis, the effect of which is such
as to make it, in the judgment of the Representative, impracticable or
inadvisable to market such Certificates or to enforce contracts for the sale of
such Certificates, (iii) the suspension of trading generally by either the
American Stock Exchange or the New York Stock Exchange, or the establishment of
minimum or maximum prices or ranges of prices, by either of such exchanges or by
order of the Commission or any other governmental authority, or any banking
moratorium declared by Federal, Missouri or New York authorities or (iv) any
event that would constitute a default under such Terms Agreement or this
Underwriting Agreement or default in the performance of DFS's or the Seller's
10
<PAGE>
obligations under any Agreement or which, with the passage of time or the giving
of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for DFS and the Seller, an opinion, dated
the related Closing Date, addressed to the Underwriters and satisfactory in form
and substance to the Representative and to counsel to the Underwriters, with
respect to the matters set forth in Exhibit B hereto.
(f) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for the Seller, an opinion, dated the
related Closing Date and satisfactory in form and substance to the
Representative and to counsel to the Underwriters, to the effect that the
information in the Prospectus Supplement under the heading "State and Local Tax
Consequences," to the extent it constitutes matters of Missouri law or legal
conclusions with respect thereto, has been reviewed by such counsel and is
correct in all material respects.
(g) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for DFS and the Seller, an opinion, dated
the related Closing Date, addressed to the Underwriters and satisfactory in form
and substance to the Representative and to counsel to the Underwriters, relating
to certain insolvency and bankruptcy matters and federal income tax matters.
(h) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for the Trustee, an opinion, dated the
related Closing Date, addressed to the Underwriters, DFS and the Seller and
satisfactory in form and substance to the Representative and to counsel to the
Underwriters, in substantially the form of Exhibit C hereto.
(i) The Representative shall have received an officer's certificate dated
the related Closing Date of the chairman of the board, the president, an
executive vice president or the treasurer of the Trustee in which such officer
shall state that, to the best of his/her knowledge after reasonable
investigation, the representations and warranties of the Trustee contained in
any Agreement are true and correct in all material respects, and that the
Trustee has complied in all material respects with all agreements and satisfied
all conditions on its part to be performed or satisfied under each related
Agreement at or prior to such Closing Date.
(j) The Trustee shall have furnished to the Representative a certificate of
the Trustee, signed by one or more duly authorized officers of the Trustee,
dated the related Closing Date, as to the due acceptance of the Agreements by
the Trustee and the due execution and delivery of the Certificates of such
Series by the Trustee thereunder and such other matters as the Representative
shall reasonably request.
(k) Counsel to DFS and the Seller shall have furnished to the
Representative any opinions supplied to the rating agencies relating to certain
matters with respect to the Certificates of a Series, which opinions shall also
be addressed to the Underwriters. Drafts of such opinions shall have been
furnished to the Representative no later than five business days prior to the
related Closing Date.
(l) The Representative shall have received a letter, dated the related
Closing Date and addressed to the Underwriters, from certified public
accountants (who shall be satisfactory to the
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<PAGE>
Representative), substantially in the form approved by the Representative and
counsel to the Underwriters.
(m) The Representative shall have received a copy of (i) a file-stamped
acknowledgment copy of each UCC-1 financing statement on Form UCC-1
appropriately filed with respect to the transfer of the related Receivables by
DFS to the Seller, identifying such Receivables as collateral and naming DFS as
debtor and the Seller as the secured party and (ii) a file-stamped
acknowledgment copy of each UCC-1 financing statement on Form UCC-1
appropriately filed with respect to the transfer of the related Receivables by
the Seller to the Trust pursuant to the Agreements, identifying such Receivables
as collateral and naming the Seller as debtor and the Trust as the secured
party.
(n) All documents incident to the Agreements, Terms Agreements and this
Underwriting Agreement shall be reasonably satisfactory in form and substance to
the Representative and counsel to the Underwriters; and all actions taken by the
Seller to authorize the offering and sale of the Certificates of a Series shall
be reasonably satisfactory in form and substance to the Representative and
counsel to the Underwriters; and DFS and/or the Seller shall furnish the
Representative and counsel to the Underwriters with such other opinions,
certificates, letters and documents as the Representative or counsel to the
Underwriters shall reasonably request.
(o) The Certificates of the related Series shall have received the ratings
specified in the related Terms Agreement.
(p) On or prior to the related Closing Date, there has been no downgrading,
nor has any notice been given of (i) any intended or possible downgrading or
(ii) any review or possible changes in rating the direction of which has not
been indicated, in the rating accorded and originally requested by and paid for
by or on behalf of the Seller relating to any previously issued asset-backed
securities of the Trust by any "nationally recognized statistical rating
organization" (as such term is defined for purposes of the Exchange Act).
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Underwriting Agreement (with respect
to the related Certificates) and the related Terms Agreement may be terminated
by the Representative by notice to the Seller at any time at or prior to the
related Closing Date, and such termination shall be without liability of any
party to any other party except as provided in Section 5 hereof.
Section 7. Indemnification and Contribution. (a) Each of DFS and the Seller
shall, jointly and severally, indemnify and hold harmless each Underwriter and
each person who controls any Underwriter within the meaning of Section 15 of the
Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any
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<PAGE>
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Seller and DFS (which consent
shall not be unreasonably withheld); and
(iii) against any and all expense whatsoever (including, subject to Section
7(c) hereof, the reasonable fees and disbursements of counsel chosen
by the Representative) incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this Section 7 shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made (A) in reliance upon and
in conformity with written information furnished to the Seller by the
Representative expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) and set forth in the Prospectus and in the Prospectus
Supplement, in each case as specified in the related Terms Agreement, or (B) in
any ABS Filing or any amendment or supplement thereof, except to the extent that
any untrue statement or alleged untrue statement therein or omission therefrom
results (or is alleged to have resulted) from an error (a "Pool Error") in the
information concerning the characteristics of the Receivables furnished by the
Seller to the Underwriter in writing or by electronic transmission that was used
in the preparation of any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) included in such ABS Filing (or amendment or
supplement thereof).
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Seller and DFS, each of their respective directors, each of their respective
officers who signed the Registration Statement, and each person, if any, who
controls the Seller and DFS, respectively, within the meaning of Section 15 of
the Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section 7, as
incurred, but only with respect to (i) untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Seller through the Representative expressly for use
in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), in each
case as specified in the related Terms Agreement, or (ii) any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof) furnished to
the Seller by such Underwriter through the Representative pursuant to Section 9
or Section 10, or directly by such Underwriter, to the extent
13
<PAGE>
that such materials were delivered to investors by such Underwriter, and
incorporated by reference in such Registration Statement or the related
Prospectus or any amendment or supplement thereof (except that no such indemnity
shall be available for any losses, claims, damages or liabilities, or actions in
respect thereof, resulting from any Pool Error).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it with
respect to which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve it from any liability which it may have
otherwise than on account of this Section 7. An indemnifying party may
participate at its own expense in the defense of any such action. In no event
shall the indemnifying parties be liable for the fees and expenses of more than
one counsel (in addition to any local counsel) separate from their own counsel
for all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
Section 8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 7 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Seller and DFS, jointly
and severally, on the one hand, and the Underwriters (as applicable), on the
other, shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by said Section 7 incurred by the
Seller, DFS and one or more Underwriters, as incurred, in such proportions that
each applicable Underwriter is responsible for that portion represented by the
percentage that the underwriting discount received by it bears to the initial
public offering price of the related Series of Certificates, and the Seller and
DFS shall be jointly and severally responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. Notwithstanding
the other provisions of this Section 8, an Underwriter shall not be required to
contribute any amount in excess of the amount of the underwriting discount
received by it. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act shall have
the same rights to contribution as such Underwriter and each officer of the
Seller or DFS who signed the Registration Statement, and each person, if any,
who controls the Seller or DFS within the meaning of Section 15 of the Act shall
have the same rights to contribution as the Seller and DFS.
Section 9. Computational Materials and Structural Term Sheets. (a) Not
later than 5 p.m., New York time, on the business day before the date on which
the applicable ABS Filing relating to the Certificates of a Series is required
to be filed by the Seller with the Commission pursuant to Section 5(b) hereof,
the Representative shall deliver to the Seller a complete copy of all materials
provided by the Underwriters to prospective investors in such Certificates that
constitute (i) "Computational Materials" within the meaning of the no-action
letter dated May 20, 1994, issued by the Division of Corporation Finance of the
Commission to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co.
Incorporated and Kidder Structured Asset Corporation and the no-action letter
dated May 27, 1994, issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"), the filing of which material is a condition of the relief granted in
such letters (such materials being the "Computational Materials") and (ii)
"Structural Term Sheets" within the meaning of
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<PAGE>
the no-action letter dated February 17, 1995, issued by the Division of
Corporation Finance of the Commission to the Public Securities Association (the
"PSA Letter"), the filing of which material is a condition of the relief granted
in such letter (such materials being the "Structural Term Sheets"); prior to
such delivery by the Representative to the Seller of such materials, the
Representative shall notify, or cause to be notified, the Seller or its counsel
by telephone of its intention to deliver such materials and the approximate date
on which such delivery of such materials is expected to occur.
(b) Each Underwriter represents and warrants to and agrees with the Seller,
as of the date of the related Terms Agreement and as of the related Closing
Date, that:
(i) the Computational Materials furnished to the Seller pursuant to
Section 9(a) constitute (either in original, aggregated or
consolidated form) all of the materials furnished to prospective
investors by such Underwriter prior to the time of delivery thereof to
the Seller that are required to be filed with the Commission with
respect to the related Certificates in accordance with the Kidder
Letters, and such Computational Materials comply with the requirements
of the Kidder Letters; and
(ii) the Structural Term Sheets furnished to the Seller pursuant to Section
9(a) constitute all of the materials furnished to prospective
investors by the Underwriter prior to the time of delivery thereof to
the Seller that are required to be filed with the Commission as
"Structural Term Sheets" with respect to the related Certificates in
accordance with the PSA Letter, and such Structural Term Sheets comply
with the requirements of the PSA Letter.
(c) If, at any time when a prospectus relating to the Certificates of a
Series is required to be delivered under the Act, it shall be necessary to amend
or supplement the related Prospectus and Prospectus Supplement as a result of an
untrue statement of a material fact contained in any Computational Materials or
Structural Term Sheets provided by the Underwriters pursuant to this Section 9
or the omission to state therein a material fact required, when considered in
conjunction with the related Prospectus and Prospectus Supplement, to be stated
therein or necessary to make the statements therein, when read in conjunction
with the related Prospectus and Prospectus Supplement, not misleading, or if it
shall be necessary to amend or supplement any ABS Filing relating to any
Computational Materials or Structural Term Sheets to comply with the Act or the
Rules and Regulations, the Representative promptly will prepare and furnish to
the Seller for filing with the Commission an amendment or supplement that will
correct such statement or omission or an amendment which will effect such
compliance.
Section 10. Collateral Term Sheets. (a) Prior to the delivery of any
"Collateral Term Sheet" within the meaning of the PSA Letter, the filing of
which material is a condition of the relief granted in such letter (such
material being the "Collateral Term Sheets" and together with Structural Term
Sheets, referred to herein as "ABS Term Sheets"), to a prospective investor in
Certificates of a Series, the Representative shall, in order to facilitate the
timely filing of such material with the Commission, notify the Seller and its
counsel by telephone of its intention to deliver such materials and the
approximate date on which the first such delivery of such materials is expected
to occur. Not later than 2 p.m., New York time, on the business day
15
<PAGE>
immediately following the date on which any Collateral Term Sheet was first
delivered to a prospective investor in such Certificates, the Representative
shall deliver to the Seller a complete copy of all materials provided by the
Underwriters to prospective investors in the Certificates that constitute
"Collateral Term Sheets." At the time of each such delivery, the Representative
shall indicate in writing that the materials being delivered constitute
Collateral Term Sheets.
(b) Each Underwriter represents and warrants to and agrees with the Seller
as of the date of the related Terms Agreement and as of the related Closing
Date, that the Collateral Term Sheets furnished to the Seller pursuant to
Section 10(a) constitute all of the materials furnished to prospective investors
by such Underwriter prior to time of delivery thereof to the Seller that are
required to be filed with the Commission as "Collateral Term Sheets" with
respect to the related Certificates in accordance with the PSA Letter, and such
Collateral Term Sheets comply with the requirements of the PSA Letter.
(c) If, at any time when a prospectus relating to the Certificates of a
Series is required to be delivered under the Act, it shall be necessary to amend
or supplement the related Prospectus and Prospectus Supplement as a result of an
untrue statement of a material fact contained in any Collateral Term Sheets
provided by the Underwriters pursuant to this Section 10 or the omission to
state therein a material fact required, when considered in conjunction with the
related Prospectus and Prospectus Supplement, to be stated therein or necessary
to make the statements therein, when read in conjunction with the related
Prospectus and Prospectus Supplement, not misleading, or if it shall be
necessary to amend or supplement any ABS Filing relating to any Collateral Term
Sheets to comply with the Act or the Rules and Regulations, the Representative
promptly will prepare and furnish to the Seller for filing with the Commission
an amendment or supplement that will correct such statement or omission or an
amendment which will effect such compliance.
Section 11. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
each of DFS, the Seller or its officers and of the Underwriters set forth in or
made pursuant to this Underwriting Agreement and the related Terms Agreement
will remain in full force and effect, regardless of any investigation or
statement as to the results thereof, made by or on behalf of any Underwriter,
DFS, the Seller or any of their respective representatives, officers or
directors of any controlling person, and will survive delivery of and payment
for the related Certificates.
Section 12. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail on a Closing Date to purchase the related
Certificates which it or they are obligated to purchase under this Underwriting
Agreement and the applicable Terms Agreement (the "Defaulted Certificates"), the
Representative shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Certificates in such amounts as may be agreed upon and upon the terms herein set
forth and under the applicable Terms Agreement; if, however, the Representative
shall not have completed such arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Certificates does not exceed 10%
of the principal amount of such Series of Certificates to be purchased pursuant
to such Terms
16
<PAGE>
Agreement, each of the non-defaulting Underwriters named in such Terms Agreement
shall be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting obligations
thereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the principal amount of Defaulted Certificates exceeds 10% of the
principal amount of such Series of Certificates to be purchased pursuant to such
Terms Agreement, the applicable Terms Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 12 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
the related Terms Agreement, either the Representative or the Seller shall have
the right to postpone the related Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement,
Prospectus or Prospectus Supplement or in any other documents or arrangements.
Section 13. Notices. All communications hereunder will be in writing and:
(i) if sent to the Underwriters, will be mailed, delivered or sent by
facsimile transmission and confirmed to the Representative at:
Deutsche Bank Securities Inc.
31 West 52nd Street
New York, New York 10019
Attention: David Bondy
Telephone: (212) 469-8000
Facsimile: (212) 469-5923;
with a copy to:
Brown & Wood LLP
1666 K Street, N.W.
Washington, D.C. 20006
Attention: Edward E. Gainor
Telephone: (202) 533-1300
Facsimile: (202) 533-1399;
17
<PAGE>
(ii) if sent to the Seller, will be mailed, delivered or sent by facsimile
transmission, and confirmed to it at:
Deutsche Floorplan Receivables, L.P.
655 Maryville Centre Drive
St. Louis, Missouri 63141
Attention: Richard Schumacher
Telephone: (314) 523-3950
Facsimile: (314) 523-3993;
(iii) if sent to DFS, will be mailed, delivered or sent by facsimile
transmission, and confirmed to it at:
Deutsche Financial Services Corporation
655 Maryville Centre Drive
St. Louis, Missouri 63141
Attention: Richard Schumacher
Telephone: (314) 523-3950
Facsimile: (314) 523-3993;
or to such other address as DFS, the Seller or the Representative may designate
in writing to the other parties hereto.
Section 14. Successors. This Underwriting Agreement will inure to the
benefit of and be binding upon the Underwriters, DFS and the Seller and their
respective successors and the officers and directors and controlling persons
referred to in Section 7 hereof, and no other person will have any right or
obligations hereunder.
Section 15. Governing Law. THIS UNDERWRITING AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH
PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY
NEW YORK STATE OR FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY
OF NEW YORK, NEW YORK OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS UNDERWRITING AGREEMENT AND ANY TERMS AGREEMENT, AND IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF THE ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE OR FEDERAL COURT, AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO
THE MAINTENANCE OF SUCH ACTION OF PROCEEDING.
Section 16. Nonpetition Covenant. Notwithstanding any prior termination of
this Underwriting Agreement or any Terms Agreement, the Underwriters shall not
acquiesce, petition or otherwise invoke or cause the Seller or the general
partner of the Seller or the Trust to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Seller or the general partner of the Seller or the Trust under any federal
or state bankruptcy, insolvency or similar law, or appointing a receiver,
liquidator, assignee, trustee,
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<PAGE>
custodian, sequestrator or other similar official of the Seller or the general
partner of the Seller or the Trust or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Seller, of the
general partner of the Seller or the Trust.
Section 17. Counterparts. This Underwriting Agreement may be executed by
each of the parties hereto in any number of counterparts, and by each of the
parties hereto on separate counterparts, each of which counterparts, when so
executed and delivered, shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
19
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us a counterpart hereof, whereupon this letter and your acceptance
hereof shall constitute a binding agreement between the Underwriters, the Seller
and DFS.
Very truly yours,
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
By: Deutsche Floorplan Receivables, Inc.,
its general partner
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
DEUTSCHE FINANCIAL SERVICES CORPORATION
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
Accepted in New York, New York, as of the date hereof:
DEUTSCHE BANK SECURITIES INC.
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
Acting on behalf of itself and, if applicable, as the
Representative of the Underwriters named in the
related Terms Agreement.
<PAGE>
EXHIBIT A
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
Asset Backed Certificates
TERMS AGREEMENT
---------------
[Date]
To: Deutsche Floorplan Receivables, L.P.
Re: Underwriting Agreement dated as of April [[ ]], 2000 (the "Standard
Terms," and together with this Terms Agreement, the "Agreement").
Series Designation: Series ____.
Terms of the Series Certificates: Distribution Financial Services
Floorplan Master Trust, Asset Backed Certificates, Class __, Class __, Class __,
Class __, Class __, Class __ and Class __ Certificates (the "Certificates") will
evidence beneficial ownership interest in a pool of Receivables having the
characteristics described in the Prospectus Supplement dated the date hereof.
Only the Class __, Class __, Class __, Class __ and Class __ Certificates
(collectively, the "Offered Certificates") are being sold pursuant to the terms
hereof.
Registration Statement: File Number 333-74457.
Ratings: It is a condition of Closing that at the Closing Date the
Class __ and Class __ Certificates be rated "____" by _______________ ("____")
and "___" by _____________ ("_____"); that the Class __ Certificates be rated
"___" by ____ and "___" by ____; that the Class __ Certificates be rated "__" by
____ and "__" by _______.
Terms of Sale of Offered Certificates: The Seller agrees to sell to
Deutsche Bank Securities Inc. [and ______________________________ (the
"Underwriter[s]")] and Deutsche Bank Securities Inc. [and ___________________
each] agree[s][, severally and not jointly,] to purchase from the Seller the
Offered Certificates in the principal amounts and prices set forth beneath their
[respective] name[s] on Schedule 1. The purchase price for each class of the
Offered Certificates shall be the applicable Purchase Price Percentage set forth
in Schedule 1 multiplied by the applicable principal amount.
Cut-off Date: [Date]
<PAGE>
Closing Date: 10:00 A.M., New York time, on or about [Date]. On the
Closing Date, the Seller will deliver the Offered Certificates to the
Underwriters against payment therefor.
Underwriter-Provided Information: The Seller and DFS each acknowledge
and agree that the information set forth in (i) the table immediately following
the _______ paragraph under the caption "Underwriting" in the Prospectus
Supplement dated [Date], (ii) the _______ and _______ paragraphs under such
caption in such Prospectus Supplement and (iii) the table immediately following
the _______ paragraph under such caption in such Prospectus Supplement, as such
information relates to the Certificates, constitute the only information
furnished in writing by or on behalf of the Underwriters for inclusion in the
Registration Statement, the Prospectus or the Prospectus Supplement, and the
Underwriters confirm that such statements are correct.
Incorporation of the Standard Terms: Each of the provisions of the
Standard Terms is incorporated herein by reference in its entirety and shall be
deemed to be a part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein and each of the representations and
warranties set forth therein shall be deemed to have been made on and as of the
date of this Terms Agreement, and the Standard Terms and this Terms Agreement
shall be construed as, together, one and the same agreement. Without limiting
the foregoing, Sections 14 through 17 of the Standard Terms are incorporated
herein by reference in their entirety.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement among the Underwriters, Deutsche Floorplan Receivables, L.P. and
Deutsche Financial Services Corporation.
Very truly yours,
DEUTSCHE BANK SECURITIES INC.
By:______________________________
Name:
Title:
By:______________________________
Name:
Title:
[Acting on behalf of itself and as
the Representative of the
Underwriters named herein.]
Accepted in New York, New York, as of the date hereof:
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
By: Deutsche Floorplan Receivables, Inc.,
its general partner
By:______________________________
Name:
Title:
By:______________________________
Name:
Title:
DEUTSCHE FINANCIAL SERVICES CORPORATION
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
<PAGE>
Schedule 1
----------
<TABLE>
<CAPTION>
Approximate
Amount Approximate
Initial Purchase Purchased by Amount
Interest Principal Price Deutsche Bank Purchased by
Class Rate Amount (1) Percentage Securities Inc. [ ]
-------- ---------- ---------- --------------- ------------
<S> <C> <C> <C> <C> <C>
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Total/ $ % $ $
Wtd Avg
</TABLE>
(1) Approximate.
<PAGE>
EXHIBIT B
1. DFS is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Nevada, and is duly qualified to
transact business and is in good standing in each jurisdiction in the United
States of America in which failure to so qualify would have a material adverse
effect on its business and financial condition.
2. The Seller is a limited partnership duly organized, validly existing and
in good standing under the laws of the State of Delaware and is duly qualified
to transact business and is in good standing in each jurisdiction in the United
States in which the conduct of its business or the ownership of its property
requires such qualification.
3. The Seller has the power and authority to carry on its business as
described in the Prospectus and to own its own assets in connection therewith.
4. DFS and the Seller each has the requisite power to execute and deliver
each Agreement, Terms Agreement and the Underwriting Agreement and to perform
its obligations thereunder.
5. Each of the Agreements (as applicable), Terms Agreement and the
Underwriting Agreement has been duly and validly authorized, executed and
delivered by each of DFS and the Seller, and each constitutes the valid, legal
and binding obligation of each of DFS and the Seller, enforceable against each
of DFS and the Seller in accordance with its terms, except as enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or other
similar laws relating to or affecting the enforcement of creditors' rights
generally and by general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
6. The Certificates of the applicable Series have been duly and validly
authorized, and, when duly and validly executed and delivered in accordance with
the Agreements, and following delivery to and payment therefor by the
Underwriters as provided in the related Terms Agreement, will be validly issued
and outstanding and entitled to the benefits of the Agreements.
7. Neither the execution and delivery by DFS or the Seller of any Agreement
(as applicable), a Terms Agreement or the Underwriting Agreement nor the
consummation of DFS or the Seller of the transactions therein contemplated, nor
the issuance of the Certificates of a Series by the Trust or the public offering
thereof as contemplated in the Prospectus and Prospectus Supplement, will
conflict with or result in a breach of, or constitute a default (with notice or
passage of time or both) under, or result in the imposition of any lien, charge
or encumbrance upon any of the property or assets of DFS or the Seller (except
as required or permitted pursuant thereto) pursuant to any indenture, mortgage,
contract or other instrument to which DFS or the Seller is party or by which any
of them is bound, nor will such action violate any provision of the certificate
of incorporation or by-laws of DFS or the certificate of limited partnership of
the Seller. To the best of such counsel's knowledge and information, the
execution and delivery of the Agreements, a Terms Agreement and the Underwriting
Agreement and the consummation of the transactions contemplated thereby will not
result in the violation of
<PAGE>
the provisions of any applicable federal or Missouri law, administrative
regulation or court decree.
8. There are no legal or governmental proceedings pending or, to the
knowledge of such counsel, threatened which are required to be disclosed in the
Registration Statement, other than those disclosed therein, and all pending
legal or governmental proceedings to which DFS or the Seller is a party or to
which any of its property is subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the business,
are, considered in the aggregate, not material. There are no legal or
governmental proceedings pending or, to the best of such counsel's knowledge and
information, threatened (A) asserting the invalidity of an Agreement or the
Certificates of a Series, (B) seeking to prevent the issuance of such
Certificates or the consummation by DFS or the Seller of any of the transactions
contemplated by the Agreements, a Terms Agreement or the Underwriting Agreement
or (C) which might materially and adversely affect the performance by DFS or the
Seller of its obligations under the Agreements (as applicable), a Terms
Agreement or the Underwriting Agreement.
9. No consent, approval, authorization or order of, or registration, filing
or declaration with, any court or governmental agency or body is required in
connection with (i) the execution and delivery by DFS or the Seller of the
Agreements (as applicable), a Terms Agreement or of the Underwriting Agreement
or the performance by DFS or the Seller of any of its obligations therein or
(ii) the offer, sale or delivery of the Certificates of a Series, except such as
shall have been obtained or made, as the case may be, or will be obtained or
made, as the case may be, prior to the applicable Closing Date.
10. Each of DFS and the Seller possesses all material licenses,
certificates, authorities or permits issued by the appropriate state or federal
regulatory agencies or bodies necessary to conduct the business now conducted by
it and as described in the Prospectus as amended and supplemented, except to the
extent that the failure to have such licenses, certificates, authorities or
permits does not have a material adverse effect on the Certificates of a Series
or the financial condition of DFS or the Seller, and neither DFS nor the Seller
has received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the conduct of its business,
operations or financial condition.
11. The Registration Statement has become effective under the Act and, to
the best of such counsel's knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that purpose
has been instituted or threatened by the Commission. The Registration Statement
and the Prospectus as amended and supplemented (other than the financial
statements and other accounting information contained in the Registration
Statement or the Prospectus, or omitted therefrom, as to which such counsel does
not express any opinion) comply as to form in all material respects with the
requirements of the Act and the rules and regulations thereunder.
B-2
<PAGE>
12. There are no contracts or other documents required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not so filed or described as
required.
13. The Certificates, each Agreement and the Underwriting Agreement each
conform in all material respects with the descriptions thereof contained in the
Registration Statement and the Prospectus.
14. Each of DFS and the Seller has full power and authority to sell and
assign the related Receivables and has duly authorized its sale and assignment
of such property by all necessary action.
15. All filings necessary under applicable law to perfect the transfer of
the related Receivables by DFS to the Seller pursuant to the Agreements have
been made and, provided that DFS does not relocate its principal place of
business in a state other than Missouri, no other filings (other than the filing
of continuation statements) need be made to maintain the perfection of the sale
of such Receivables to the Seller pursuant to the Agreements.
16. Immediately prior to the transfer of the related Receivables to the
Trust, the Seller is the sole owner of all right, title and interest in, and has
good and marketable title to, such Receivables to be transferred by it to the
Trust. The assignment of the related Receivables, all documents and instruments
relating thereto and all proceeds thereof to the Trust, pursuant to the
Agreements, vest in the Trust all interests which are purported to be conveyed
thereby, free and clear of all liens, security interests, encumbrances or other
rights of others, except as specifically permitted pursuant to the Agreements.
17. Immediately prior to the transfer of the related Receivables to the
Trust, the Seller's interest in such Receivables and the proceeds of each of the
foregoing were perfected, to the extent any filing was necessary to effect such
perfection, upon the appropriate filing of the UCC-1 financing statement, the
form of which is attached to such opinion, and constituted a perfected ownership
interest therein, free and clear of all liens, security interests, encumbrances
and other rights of others, except as specifically permitted pursuant to the
Agreements. If a court concludes that the transfer of the related Receivables
from the Seller to the Trust is a sale, the interest of the Trust in such
Receivables and the proceeds of each of the foregoing was perfected, to the
extent any filing was necessary to effect such perfection, upon the appropriate
filing of the UCC-1 financing statement, the form of which is attached to such
opinion, and constitutes a perfected ownership interest therein, free and clear
of all liens, security interests, encumbrances and other rights of others,
except as specifically permitted pursuant to the Agreements. If a court
concludes that such transfer is not a sale, the Agreements constitute a grant by
the Seller to the Trust of a valid security interest in the related Receivables
and the proceeds of each of the foregoing, which security interest was perfected
upon the appropriate filing of the UCC-1 financing statement, the form of which
is attached to such opinion, and constitutes a first priority perfected security
interest therein. No filing or other action, other than the appropriate filing
of the UCC-1 financing statements, is necessary to perfect and maintain the
ownership interest or the security interest of the Trust in the related
Receivables and the proceeds of each of the foregoing against third parties.
B-3
<PAGE>
18. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended.
19. Neither the Seller nor the Trust is (and neither of them will, as a
result of the offer and sale of the Certificates of a Series, be) an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
20. If applicable, the Class or Classes of Certificates of a Series so
designated in the related Prospectus Supplement will be "eligible securities"
within the meaning of paragraph (a) of Rule 2a-7 under the Investment Company
Act of 1940, as amended.
21. The statements in the Prospectus Supplement under the headings "Summary
- - Tax Matters," "Summary - ERISA Considerations," "Description of the
Certificates, " "Federal Income Tax Considerations," "State and Local Tax
Consequences" and "ERISA Considerations" and in the Prospectus under the
headings "Description of the Certificates," "The Trust," "Description of the
Receivables Contribution and Sale Agreement" and "Certain Legal Aspects of the
Receivables," to the extent that they constitute matters of law or legal
conclusions with respect thereto, were prepared or reviewed by such counsel and
are correct in all material respects.
22. Nothing has come to such counsel's attention that would lead such
counsel to believe that the Registration Statement, at the time it became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus and Prospectus
Supplement, at the date thereof or on the applicable Closing Date, included or
includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
B-4
<PAGE>
EXHIBIT C
1. The Trustee has been duly incorporated, formed or organized and is
validly existing in good standing under the laws of the jurisdiction governing
its incorporation, formation or organization with full trust power and authority
to enter into and perform its obligations under the Agreements.
2. Each Agreement has been duly executed and delivered by the Trustee, and,
insofar as the laws governing the trust powers of the Trustee are concerned and
assuming due authorization, execution and delivery thereof by each of the Seller
and DFS (as applicable), such Agreement constitutes a legal, valid and binding
obligation of the Trustee, enforceable against the Trustee in accordance with
its terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganizations or other similar laws relating to or affecting the
enforcement of creditor' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
3. The related Certificates have been duly executed, authenticated and
delivered by the Trustee.
4. Neither the execution nor delivery by the Trustee of the Agreements, nor
the consummation of any of the transactions by the Trustee contemplated thereby
required the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action with respect to, any governmental
authority or agency under any existing federal or related state law governing
the trust powers of the Trustee, except such as have been obtained, made or
taken.
<PAGE>
EXHIBIT 1.2
EXECUTION
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
Asset Backed Certificates
TERMS AGREEMENT
April 20, 2000
To: Deutsche Floorplan Receivables, L.P.
Re: Underwriting Agreement dated April 20, 2000 (the "Standard Terms," and
together with this Terms Agreement, the "Agreement").
Series Designation: Series 2000-1.
Terms of the Series 2000-1 Certificates: Distribution Financial Services
Floorplan Master Trust, Asset Backed Certificates, Series 2000-1 Class A, Class
B and Class C (the "Certificates") will evidence beneficial ownership interests
in a pool of Receivables having the characteristics described in the Prospectus
Supplement dated the date hereof. Only the Class A and Class B Certificates
(collectively, the "Offered Certificates") are being sold pursuant to the terms
hereof.
Registration Statement: File Number 333-74457.
Certificate Ratings: It is a condition of closing that at the Closing
Date the Class A Certificates be rated "AAA" by each of Standard & Poor's Rating
Services, a division of The McGraw-Hill Companies, Inc. ("S&P") and Fitch IBCA,
Inc. ("Fitch") and "Aaa" by Moody's Investors Services Inc. ("Moody's") and that
the Class B Certificates be rated "A" by each of S&P and Fitch and "A2" by
Moody's.
Terms of Sale of Offered Certificates: The Seller agrees to sell to
Deutsche Bank Securities Inc., Banc of America Securities LLC, Banc One Capital
Markets, Inc. and J.P. Morgan Securities Inc. (the "Underwriters") and the
Underwriters each agree, severally and not jointly, to purchase from the Seller
the Offered Certificates in the principal amounts and prices set forth beneath
their respective names on Schedule 1. The purchase price for each class of the
<PAGE>
Offered Certificates shall be the applicable Purchase Price Percentage set forth
in Schedule 1 multiplied by the applicable principal amount.
Cut-off Date: April 1, 2000.
Closing Date: 10:00 A.M., New York time, on or about April 27, 2000. On
the Closing Date, the Seller will deliver the Offered Certificates to the
Underwriters against payment therefor.
Underwriter-Provided Information: The Seller and DFS each acknowledge
and agree that the information set forth in (i) the two tables immediately
following the first paragraph under the caption "Underwriting" in the Prospectus
Supplement dated April 20, 2000 and (ii) the second, third and fourth paragraphs
under such caption in such Prospectus Supplement, as such information relates to
the Certificates, constitute the only information furnished in writing by or on
behalf of the Underwriters for inclusion in the Registration Statement, the
Prospectus or the Prospectus Supplement, and the Underwriters confirm that such
statements are correct.
Incorporation of the Standard Terms: Each of the provisions of the
Standard Terms is incorporated herein by reference in its entirety and shall be
deemed to be a part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein and each of the representations and
warranties set forth therein shall be deemed to have been made on and as of the
date of this Terms Agreement, and the Standard Terms and this Terms Agreement
shall be construed as, together, one and the same agreement. Without limiting
the foregoing, Sections 14 through 17 of the Standard Terms are incorporated
herein by reference in their entirety.
2
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement among the Underwriters, Deutsche Floorplan Receivables, L.P. and
Deutsche Financial Services Corporation.
Very truly yours,
DEUTSCHE BANK SECURITIES INC.
By:______________________________
Name:
Title:
By:______________________________
Name:
Title:
Acting on behalf of itself and as
the Representative of the
Underwriters named herein.
Accepted in New York, New York,
as of the date hereof:
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
By: Deutsche Floorplan Receivables, Inc.,
its general partner
By:______________________________
Name:
Title:
By:______________________________
Name:
Title:
DEUTSCHE FINANCIAL SERVICES CORPORATION
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
<PAGE>
Schedule 1
----------
<TABLE>
<CAPTION>
Approximate Approximate Approximate
Amount Amount Amount Approximate
Underwritten by Underwritten by Underwritten Amount
Initial Purchase Deutsche Banc of by Banc One Underwritten
Interest Principal Price Bank America Capital by J.P. Morgan
Class Rate Amount (1) Percentage Securities Inc. Securities LLC Markets, Inc. Securities Inc.
----- ---- ----------- ---------- --------------- --------------- ------------- ---------------
<S> <C> <C> <C> <C> <C> <C> <C>
Class A LIBOR $1,193,750,000 99.775% $830,000,000 $100,000,000 $163,750,000 $100,000,000
plus 0.17%
Class B LIBOR $37,500,000 99.725% $9,375,000 $9,375,000 $9,375,000 $9,375,000
plus 0.44%
-------------- -------------- ------------ ------------ ------------
Total $1,231,250,000 $839,375,000 $109,375,000 $173,125,000 $109,375,000
</TABLE>
(1) Approximate.
<PAGE>
EXHIBIT 1.3
EXECUTION
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
Asset Backed Certificates
TERMS AGREEMENT
---------------
April 20, 2000
To: Deutsche Floorplan Receivables, L.P.
Re: Underwriting Agreement dated April 20, 2000 (the "Standard Terms," and
together with this Terms Agreement, the "Agreement").
Series Designation: Series 2000-2.
Terms of the Series 2000-2 Certificates: Distribution Financial Services
Floorplan Master Trust, Asset Backed Certificates, Series 2000-2 Class A, Class
B and Class C (the "Certificates") will evidence beneficial ownership interests
in a pool of Receivables having the characteristics described in the Prospectus
Supplement dated the date hereof. Only the Class A and Class B Certificates
(collectively, the "Offered Certificates") are being sold pursuant to the terms
hereof.
Registration Statement: File Number 333-74457.
Certificate Ratings: It is a condition of closing that at the Closing
Date the Class A Certificates be rated "AAA" by each of Standard & Poor's Rating
Services, a division of The McGraw-Hill Companies, Inc. ("S&P") and Fitch IBCA,
Inc. ("Fitch") and "Aaa" by Moody's Investors Services Inc. ("Moody's") and that
the Class B Certificates be rated "A" by each of S&P and Fitch and "A2" by
Moody's.
Terms of Sale of Offered Certificates: The Seller agrees to sell to
Deutsche Bank Securities Inc., Banc of America Securities LLC, Banc One Capital
Markets, Inc. and J.P. Morgan Securities Inc. (the "Underwriters") and the
Underwriters each agree, severally and not jointly, to purchase from the Seller
the Offered Certificates in the principal amounts and prices set forth beneath
their respective names on Schedule 1. The purchase price for each class of the
<PAGE>
Offered Certificates shall be the applicable Purchase Price Percentage set forth
in Schedule 1 multiplied by the applicable principal amount.
Cut-off Date: April 1, 2000.
Closing Date: 10:00 A.M., New York time, on or about April 27, 2000. On
the Closing Date, the Seller will deliver the Offered Certificates to the
Underwriters against payment therefor.
Underwriter-Provided Information: The Seller and DFS each acknowledge
and agree that the information set forth in (i) the two tables immediately
following the first paragraph under the caption "Underwriting" in the Prospectus
Supplement dated April 20, 2000 and (ii) the second, third and fourth paragraphs
under such caption in such Prospectus Supplement, as such information relates to
the Certificates, constitute the only information furnished in writing by or on
behalf of the Underwriters for inclusion in the Registration Statement, the
Prospectus or the Prospectus Supplement, and the Underwriters confirm that such
statements are correct.
Incorporation of the Standard Terms: Each of the provisions of the
Standard Terms is incorporated herein by reference in its entirety and shall be
deemed to be a part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein and each of the representations and
warranties set forth therein shall be deemed to have been made on and as of the
date of this Terms Agreement, and the Standard Terms and this Terms Agreement
shall be construed as, together, one and the same agreement. Without limiting
the foregoing, Sections 14 through 17 of the Standard Terms are incorporated
herein by reference in their entirety.
2
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement among the Underwriters, Deutsche Floorplan Receivables, L.P. and
Deutsche Financial Services Corporation.
Very truly yours,
DEUTSCHE BANK SECURITIES INC.
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
Acting on behalf of itself and as
the Representative of the
Underwriters named herein.
Accepted in New York, New York, as of the date hereof:
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
By: Deutsche Floorplan Receivables, Inc.,
its general partner
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
DEUTSCHE FINANCIAL SERVICES CORPORATION
By:___________________________________________
Name:
Title:
By:___________________________________________
Name:
Title:
<PAGE>
Schedule 1
----------
<TABLE>
<CAPTION>
Approximate Approximate
Amount Approximate Amount Approximate
Underwritten by Amount Underwritten Amount
Initial Purchase Deutsche Underwritten by by Banc One Underwritten
Interest Principal Price Bank Banc of America Capital by J.P. Morgan
Class Rate Amount (1) Percentage Securities Inc. Securities LLC Markets, Inc. Securities Inc.
----- ---- ----------- ---------- --------------- -------------- ------------ ---------------
<S> <C> <C> <C> <C> <C> <C> <C>
Class A LIBOR $477,500,000 99.725% $138,750,000 $100,000,000 $138,750,000 $100,000,000
plus 0.25%
Class B LIBOR $15,000,000 99.675% $3,750,000 $3,750,000 $3,750,000 $3,750,000
plus 0.52%
------------ ------------- ------------ ------------ ------------
Total $492,500,000 $142,500,000 $103,750,000 $142,500,000 $103,750,000
</TABLE>
(1) Approximate.
<PAGE>
EXHIBIT 4.1
- --------------------------------------------------------------------------------
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
Seller
DEUTSCHE FINANCIAL SERVICES CORPORATION
Servicer
and
THE CHASE MANHATTAN BANK
Trustee
Distribution Financial Services Floorplan Master Trust
AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2000
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
SECTION 1.1. Definitions.....................................................1
SECTION 1.2. Other Definitional Provisions..................................27
SECTION 1.3. Provisions Relating to Rating Agencies.........................27
ARTICLE II
Conveyance of Receivables
SECTION 2.1. Conveyance of Receivables......................................28
SECTION 2.2. Acceptance by Trustee..........................................30
SECTION 2.3. Representations and Warranties of the Seller Relating to the
Seller and the Agreement.......................................30
SECTION 2.4. Representations and Warranties of the Seller Relating to the
Receivables....................................................33
SECTION 2.5. Addition of Accounts...........................................35
SECTION 2.6. Covenants of the Seller........................................38
SECTION 2.7. Removal of Eligible Accounts...................................40
SECTION 2.8. Removal of Ineligible Accounts.................................42
SECTION 2.9. Sale of Ineligible Receivables.................................43
SECTION 2.10. Removal of Receivables in Connection with Overconcentration
Amount.........................................................43
ARTICLE III
Administration and Servicing of Receivables
SECTION 3.1. Acceptance of Appointment and Other Matters Relating to the
Servicer.......................................................44
SECTION 3.2. Servicing Compensation.........................................45
SECTION 3.3. Representations, Warranties and Covenants of the Servicer......46
SECTION 3.4. Reports and Records for the Trustee............................49
SECTION 3.5. Annual Servicer's Certificate and Assertion....................49
SECTION 3.6. Annual Independent Public Accountants' Attestation and Agreed
Upon Procedures Report.........................................50
SECTION 3.7. Tax Treatment..................................................50
SECTION 3.8. Notices to DFS.................................................51
SECTION 3.9. Adjustments....................................................51
i
<PAGE>
Page
----
ARTICLE IV
Rights of Holders and Allocation and Application of Collections
SECTION 4.1. Rights of Holders..............................................51
SECTION 4.2. Establishment of the Collection Account........................52
SECTION 4.3. Allocations and Applications of Collections and Other Funds....53
SECTION 4.4. Unallocated Principal Collections..............................54
ARTICLE V
Distributions and Reports to Certificateholders
ARTICLE VI
The Certificates
SECTION 6.1. The Certificates...............................................55
SECTION 6.2. Authentication of Certificates.................................56
SECTION 6.3. New Issuances..................................................56
SECTION 6.4. Registration of Transfer and Exchange of Certificates..........58
SECTION 6.5. Mutilated, Destroyed, Lost or Stolen Certificates..............61
SECTION 6.6. Persons Deemed Owners..........................................61
SECTION 6.7. Access to List of Registered Certificateholders' Names and
Addresses......................................................62
SECTION 6.8. Book-Entry Certificates........................................62
SECTION 6.9. Notices to Depository..........................................63
SECTION 6.10. Definitive Certificates........................................63
SECTION 6.11. Global Certificate; Exchange Date..............................64
SECTION 6.12. Meetings of Certificateholders.................................65
ARTICLE VII
Other Matters Relating to the Seller
SECTION 7.1. Liability of the Seller........................................68
SECTION 7.2. Limitation on Liability of the Seller..........................68
SECTION 7.3. Seller Indemnification of the Trust and the Trustee............68
SECTION 7.4. Liabilities....................................................69
ARTICLE VIII
Other Matters Relating to the Servicer
SECTION 8.1. Liability of the Servicer......................................69
SECTION 8.2. Merger or Consolidation of, or Assumption of, the
Obligations of the Servicer....................................69
ii
<PAGE>
Page
----
SECTION 8.3. Limitation on Liability of the Servicer and Others.............70
SECTION 8.4. Servicer Indemnification of the Trust and the Trustee..........70
SECTION 8.5. The Servicer Not to Resign.....................................71
SECTION 8.6. Access to Certain Documentation and Information Regarding the
Receivables....................................................71
SECTION 8.7. Delegation of Duties...........................................71
SECTION 8.8. Examination of Records.........................................71
SECTION 8.9. Custodial Arrangements.........................................71
ARTICLE IX
Early Amortization Events
SECTION 9.1. Early Amortization Events......................................72
SECTION 9.2. Additional Rights Upon the Occurrence of Certain Events........74
ARTICLE X
Servicer Defaults
SECTION 10.1. Servicer Defaults..............................................75
SECTION 10.2. Trustee to Act; Appointment of Successor.......................77
ARTICLE XI
The Trustee
SECTION 11.1. Duties of Trustee..............................................79
SECTION 11.2. Certain Matters Affecting the Trustee..........................81
SECTION 11.3. Trustee Not Liable for Recitals in Certificates................82
SECTION 11.4. Trustee May Own Certificates...................................83
SECTION 11.5. The Servicer to Pay Trustee's Fees and Expenses................83
SECTION 11.6. Eligibility Requirements for Trustee...........................83
SECTION 11.7. Resignation or Removal of Trustee..............................84
SECTION 11.8. Successor Trustee..............................................84
SECTION 11.9. Merger or Consolidation of Trustee.............................84
SECTION 11.10. Appointment of Co-Trustee or Separate Trustee..................85
SECTION 11.11. Tax Returns....................................................86
SECTION 11.12. Trustee May Enforce Claims Without Possession of Certificates..86
SECTION 11.13. Suits for Enforcement..........................................86
SECTION 11.14. Representations and Warranties of Trustee......................87
SECTION 11.15. Maintenance of Office or Agency................................87
ARTICLE XII
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Termination
SECTION 12.1. Termination of Trust...........................................87
SECTION 12.2. Final Distribution.............................................87
SECTION 12.3. Seller's Termination Rights....................................89
ARTICLE XIII
Miscellaneous Provisions
SECTION 13.1. Amendment......................................................89
SECTION 13.2. Protection of Right, Title and Interest to Trust...............92
SECTION 13.3. Limitation on Rights of Certificateholders.....................92
SECTION 13.4. No Petition....................................................93
SECTION 13.5. GOVERNING LAW..................................................94
SECTION 13.6. Notices........................................................94
SECTION 13.7. Severability of Provisions.....................................94
SECTION 13.8. Assignment.....................................................94
SECTION 13.9. Certificates Nonassessable and Fully Paid......................94
SECTION 13.10. Further Assurances.............................................95
SECTION 13.11. No Waiver, Cumulative Remedies.................................95
SECTION 13.12. Counterparts...................................................95
SECTION 13.13. Third-Party Beneficiaries......................................95
SECTION 13.14. Actions by Certificateholders..................................95
SECTION 13.15. Rule 144A Information..........................................95
SECTION 13.16. Action by Trustee..............................................96
SECTION 13.17. Merger and Integration.........................................96
SECTION 13.18. Headings.......................................................96
SECTION 13.19. Continued Effectiveness of the Existing Pooling and Servicing
Agreement......................................................96
SECTION 13.20. Submission to Jurisdiction.....................................96
SECTION 13.21. Actions by Seller on Behalf of Trust...........................97
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EXHIBITS
Exhibit A [Reserved]
Exhibit B Form of Assignment of Receivables in Additional Accounts
Exhibit C Form of Annual Servicer's Certificate
Exhibit D Form of Legends
Exhibit E [Reserved]
Exhibit F Forms of Certificates for European Transfer
Exhibit G Forms of Opinions of Counsel
Exhibit H Form of Reassignment of Receivables in Removed Accounts
SCHEDULES
Schedule 1 List of Accounts
Schedule 2 Designation of Collection Account
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AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT dated as of April 1,
2000, 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.
WHEREAS, each party hereto executed a Pooling and Servicing Agreement dated
as of December 1, 1993, an amended and restated Pooling and Servicing Agreement
dated as of April 1, 1994, an amendment, dated as of January 24, 1996 to the
Pooling and Servicing Agreement and an amended and restated Pooling and
Servicing Agreement dated as of October 1, 1996 (as so amended and restated, the
"Existing Pooling and Servicing Agreement") and now wishes to amend and restate
the Existing Pooling and Servicing Agreement;
NOW THEREFORE, in consideration of the mutual agreements herein contained,
each party agrees to amend and restate the Existing Pooling and Servicing
Agreement, for the benefit of the other parties and for the benefit of the
Certificateholders and the other Beneficiaries to the extent provided herein, as
follows:
ARTICLE I
Definitions
-----------
SECTION 1.1. Definitions. Whenever used in this Agreement, the following
words and phrases shall have the following meanings:
"Account" shall mean each Initial Account and, from and after the related
Addition Date, each Additional Account. The term "Account" shall not apply to
any Removed Accounts reassigned or assigned to the Seller or the Servicer in
accordance with the terms of this Agreement.
"Accounts Receivable" shall mean, with respect to any Dealer, all amounts
shown on such Dealer's records as amounts payable by a customer in respect of
goods or services sold by such Dealer to such customer.
"Accounts Receivable Business" shall mean the extensions of credit made by
DFS or an Approved Affiliate to Dealers in order to finance the Accounts
Receivable of such Dealers.
"Accounts Receivable Financing Agreement" shall mean an accounts receivable
financing agreement entered into by DFS or an Approved Affiliate with a Dealer
in connection with the Accounts Receivable Business with such Dealer.
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"Act" shall mean the Securities Act of 1933, as amended.
"Addition Date" shall have the meaning specified in Section 2.5(c).
"Addition Notice" shall have the meaning specified in Section 2.5(c).
"Additional Accounts" shall mean each individual revolving credit
arrangement established by DFS or an Approved Affiliate with a Dealer in
connection with the Floorplan Business, the Accounts Receivable Business, or the
Asset Based Lending Business, which account is designated pursuant to Section
2.5(a) or (b) to be included as an Account and is identified in a computer file
or microfiche or written list delivered to the Trustee by the Seller pursuant to
Sections 2.1 and 2.5(d).
"Additional Cut-Off Date" shall mean, with respect to Additional Accounts,
the day specified in the Addition Notice delivered with respect to such
Additional Accounts pursuant to Section 2.5(c).
"Adjustment Payment" shall have the meaning specified in Section 3.9.
"Affiliate" shall mean, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent" shall mean, with respect to any Series, the Person (if any) so
designated in the related Supplement.
"Agreement" shall mean this Pooling and Servicing Agreement, as the same
may from time to time be amended or supplemented, including, with respect to any
Series or Class, by the related Supplement.
"Allocable Miscellaneous Payments" shall mean, with respect to any Series
and for any Collection Period, the product of the amount of Miscellaneous
Payments for such Collection Period and a fraction, the numerator of which is
the Invested Amount for such Series immediately prior to the following
Distribution Date and the denominator of which is the Trust Invested Amount as
of such time.
"Applicants" shall have the meaning specified in Section 6.7.
"Appointment Date" shall have the meaning specified in Section 9.2.
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"Approved Affiliate" shall mean any Affiliate of DFS if the Rating Agency
Condition has been satisfied with respect to designating such Affiliate as an
Approved Affiliate.
"A/R Receivable Overconcentration" on any Determination Date shall mean the
excess, if any, of (a) the aggregate of all amounts of Principal Receivables in
Accounts created pursuant to Accounts Receivable Financing Agreements as of the
last day of the Collection Period immediately preceding such Determination Date
over (b) 20% of the Pool Balance on the last day of such immediately preceding
Collection Period or, if the Rating Agency Condition is satisfied, such larger
percentage of such Pool Balance as is stated in the applicable notice from each
applicable Rating Agency in connection with the satisfaction of such Rating
Agency Condition.
"A/R Receivables" shall mean Receivables arising from the Accounts
Receivable Business.
"Asset Based Lending Business" shall mean the extensions of credit made by
DFS or an Approved Affiliate to Dealers in order to provide loans based on the
value of certain assets of such Dealer and generally secured by a first priority
security interest in such assets.
"Asset Based Lending Financing Agreement" shall mean an asset based lending
financing agreement entered into by DFS or an Approved Affiliate and a Dealer in
connection with the Asset Based Lending Business with such Dealer.
"Asset Based Receivable Overconcentration" on any Determination Date shall
mean the excess of (a) the aggregate of all amounts of Principal Receivables in
Accounts created pursuant to Asset Based Lending Financing Agreements on the
last day of the Collection Period immediately preceding such Determination Date
over (b) 20% of the Pool Balance on the last day of such immediately preceding
Collection Period or, if the Rating Agency Condition is satisfied, such larger
percentage of such Pool Balance as is stated in the applicable notice from each
applicable Rating Agency in connection with the satisfaction of such Rating
Agency Condition.
"Asset Based Receivables" shall mean Receivables arising from the Asset
Based Lending Business.
"Assignment" shall have the meaning specified in Section 2.5(d).
"Authorized European Newspaper" shall mean a daily newspaper, in the
official language of the country of publication, customarily published at least
once a day for at least five days in each calendar week, and of general
circulation in Luxembourg (or, if not practical in Luxembourg, in Europe)
including, without limitation, the Luxemburger Wort.
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"Authorized Newspaper" shall mean any newspaper or newspapers of general
circulation in New York City customarily published on each Business Day, whether
or not published on Saturdays, Sundays and holidays.
"Automatic Addition Condition" shall mean, with respect to the addition of
Accounts pursuant to Section 2.5(c), that, as of the related Notice Date, (i)
during the calendar quarter in which such addition occurs, the number of new
Accounts for Dealers that are financing products of the type already being
financed by DFS and purchasing such products from Existing Manufacturers does
not exceed 5% of the number of all Accounts at the end of the preceding calendar
quarter, (ii) during the twelve months ending at the beginning of such calendar
quarter, the number of such new Accounts does not exceed 20% of the number of
all Accounts at the beginning of such twelve month period, (iii) the average for
the three months preceding the month of such addition of the aggregate balance
of Receivables that have been SAU or NSF for more than 30 days does not exceed
1.25% of the Pool Balance at the end of the month preceding the month of such
addition, and (iv) the annualized average for such three month period of the net
losses incurred in respect of the Receivables does not exceed 1.75% of the Pool
Balance at the end of the month preceding the month of such addition. An Account
that is removed from the Trust pursuant to Section 2.7 for the purpose of
permitting DFS or the related Approved Affiliate to convey a Participation
Interest in the receivables arising in such Account and, after such
Participation Interest is created, is designated as an Additional Account
pursuant to Section 2.5 and has an Addition Date that is no more than 45 days
after its Removal Date, shall not be a "new Account" for purposes of this
definition.
"Beneficiary" shall mean any of the Holders of the Investor Certificates,
any of the Holders of the Dealer Overconcentration Series and any Enhancement
Provider.
"Benefit Plan" shall have the meaning specified in Section 6.4(c).
"Book-Entry Certificates" shall mean beneficial interests in the Investor
Certificates, ownership and transfers of which shall be made through book
entries by a Depository as described in Section 6.8.
"Business Day" shall mean any day other than (a) a Saturday or a Sunday or
(b) another day on which banking institutions in the state in which the
Corporate Trust Office is located are authorized or obligated by law, executive
order or governmental decree to be closed.
"Cedel" shall mean Centrale de Livraison de Valeurs Mobilieres S.A.
"Certificate" shall mean any of the Investor Certificates or the Seller's
Certificates.
"Certificate Owner" shall mean, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of a Book-Entry Certificate.
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"Certificate Rate" shall mean, with respect to any Series or Class, the
interest rate, if any, specified therefor in the related Supplement; provided,
however, that the Dealer Overconcentration Series shall not have a Certificate
Rate.
"Certificate Register" shall have the meaning specified in Section 6.4.
"Certificateholder" shall mean an Investor Certificateholder or a Person in
whose name any one of the Seller's Certificates is registered.
"Certificateholders' Interest" shall have the meaning specified in Section
4.1.
"Class" shall mean, with respect to any Series, any one of the classes of
Investor Certificates of that Series.
"Closing Date" shall mean, with respect to any Series, the Closing Date
specified in the related Supplement.
"Collateral Security" shall mean, with respect to any Receivable, (i) the
security interest, if any, granted by or on behalf of the related Dealer with
respect thereto, including a first priority perfected security interest in the
related Products, Accounts Receivable or assets, (ii) all other security
interests or liens and property subject thereto from time to time purporting to
secure payment of such Receivable, whether pursuant to the agreement giving rise
to such Receivable or otherwise, together with all financing statements signed
by a Dealer describing any collateral securing such Receivable, (iii) all
guarantees, insurance and other agreements (including Floorplan Agreements and
subordination agreements with other lenders) or arrangements of whatever
character from time to time supporting or securing payment of such Receivable
whether pursuant to the agreement giving rise to such Receivable or otherwise,
and (iv) all Records in respect of such Receivable.
"Collection Account" shall have the meaning specified in Section 4.2.
"Collection Period" shall mean, with respect to any Distribution Date, the
calendar month preceding the month in which such Distribution Date occurs.
"Collections" shall mean, without duplication, all payments by or on behalf
of Dealers received by the Servicer in respect of the Receivables (including
proceeds from the realization upon any Collateral Security), in the form of
cash, checks, wire transfers or any other form of payment. Collections of
Non-Principal Receivables shall include all Recoveries.
"Common Depositary" shall mean the Person specified as such in the
applicable Supplement, in its capacity as common depositary for the respective
accounts of any Foreign Clearing Agencies.
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"Concentration Limit Percentage" shall have the meaning contemplated by the
definition of Dealer Concentration Limit.
"Corporate Trust Office" shall mean the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the date of the execution of this Agreement is located at 450
West 33rd Street, 14th Floor, New York, New York 10001, Attention: Capital
Markets Fiduciary Services, Deutsche Floorplan Receivables.
"Cut-Off Date" shall mean October 31, 1993.
"Date of Processing" shall mean, with respect to any transaction, the date
on which such transaction is first recorded on the Servicer's computer file of
accounts (without regard to the effective date of such recordation).
"Dealer" shall mean a Person engaged generally in the business of
purchasing consumer or commercial products from a manufacturer or distributor
thereof and holding such Products for sale or lease in the ordinary course of
business or a Person engaged generally in the business of manufacturing or
distributing Products for sale to Dealers in the ordinary course of business.
"Dealer Overconcentration" shall be determined by the Servicer on each
Determination Date. A Dealer Overconcentration shall exist with respect to a
Dealer (an "Overconcentrated Dealer") if the aggregate amount of the Principal
Receivables owed by such Dealer exceeds the applicable Dealer Concentration
Limit. "Dealer Concentration Limit" is a dollar amount calculated as a
percentage of the Pool Balance as of the end of each Collection Period (the
"Concentration Limit Percentage"). If the Dealer is among the fifteen Dealers
owing the largest amount of Principal Receivables as of the end of a Collection
Period (the "Top 15 Dealers"), the Concentration Limit Percentage as of April
20, 2000 is 3%. If the Dealer is not among the Top 15 Dealers, the Concentration
Limit Percentage as of April 20, 2000 is 2%. The Concentration Limit Percentage
for Top 15 Dealers, as well as the Concentration Limit Percentage for the other
Dealers, may be increased or decreased from time to time by the Seller upon
notice to the Trustee and the Servicer without the consent of any Investor
Certificateholder if the Rating Agency Condition has been satisfied in
connection with that increase or decrease. For purposes of the definitions of
Dealer Overconcentration, Overconcentrated Dealer and Top 15 Dealers, a Dealer
and all of its Affiliates that are Dealers shall be considered to be a single
Dealer. For so long as a Dealer Overconcentration exists, allocations of
Principal Collections, Non-Principal Collections, Defaulted Amounts and
Miscellaneous Payments related to an Overconcentrated Dealer shall be allocated
in accordance with Section 4.5.
"Dealer Overconcentration Series" shall mean an uncertificated Series known
as the "Distribution Financial Services Floorplan Master Trust Dealer
Overconcentration Series."
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"Defaulted Amount" on any Determination Date shall mean an amount (which
shall not be less than zero) equal to (a) the sum for all the Accounts of the
amount of Principal Receivables which became Defaulted Receivables during the
immediately preceding Collection Period (or with respect to a particular Dealer,
the amount of Principal Receivables of such Dealer which became Defaulted
Receivables during such Collection Period) minus (b) the full amount of any such
Defaulted Receivables for such Collection Period which are subject to
reassignment or assignment to the Seller or the Servicer in accordance with the
terms of this Agreement (or, with respect to a particular Dealer, the full
amount of such Defaulted Receivables of such Dealer which are subject to
reassignment or assignment to the Seller or the Servicer in accordance with the
terms of this Agreement); provided, however, that, if an Insolvency Event occurs
with respect to the Seller, the amounts of such Defaulted Receivables which are
subject to reassignment to the Seller shall not be included in clause (b) and,
if an Insolvency Event occurs with respect to the Servicer, the amount of such
Defaulted Receivables which are subject to assignment to the Servicer shall not
be included in clause (b).
"Defaulted Receivables" on any Determination Date shall mean (a) all
Receivables (other than all of the Ineligible Receivables) in an Account which
are charged off as uncollectible in respect of the immediately preceding
Collection Period in accordance with the Servicer's customary and usual
servicing procedures for servicing Dealer receivables comparable to the
Receivables which have not been sold to third parties and (b) all Receivables
which were Eligible Receivables when transferred to the Trust on the initial
Closing Date or the related Addition Date or on their respective Transfer Date,
which arose in an Account that thereafter became an Ineligible Account and which
remained outstanding for any six consecutive Determination Dates (inclusive of
the Determination Date on which such determination is being made) after such
Account became an Ineligible Account.
"Definitive Certificates" shall have the meaning specified in Section 6.8.
"Definitive Euro-Certificates" shall have the meaning specified in Section
6.11.
"Delayed Funding Receivable" shall mean a Receivable in respect of which
the related Floorplan Agreement permits DFS or an Approved Affiliate to delay
payment of the purchase price of the related Product to the Manufacturer for a
specified period after the invoice date for such Product; provided that such
Receivable shall be a Delayed Funding Receivable only until DFS or such Approved
Affiliate funds the payment of such purchase price. Notwithstanding anything
herein to the contrary, if the Rating Agency Condition is satisfied, then the
Receivables referred to in the preceding sentence shall not be Delayed Funding
Receivables and the provisions herein relating to Delayed Funding Receivables
shall no longer be of any force or effect.
"Deposit Date" shall mean each day on which the Servicer deposits
Collections in the Collection Account pursuant to Section 4.3 hereof.
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"Depository" shall mean The Depository Trust Company, as initial
Depository, the nominee of which is CEDE & Co., or any other organization
registered as a "clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. The Depository shall at all times be a
"clearing corporation" as defined in Section 8-102(3) of the Uniform Commercial
Code of the State of New York.
"Depository Agreement" shall mean, with respect to any Series or Class, an
agreement among the Trust, the Trustee and the initial Depository. The Seller is
hereby authorized to enter into each Depository Agreement on behalf of the
Trust.
"Depository Participant" shall mean a broker, dealer, bank or other
financial institution or other Person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Designated Account" shall have the meaning specified in Section 2.8(b).
"Designated Balance" shall have the meaning specified in Section 2.8(b).
"Determination Date" with respect to any Distribution Date shall mean the
day that is two Business Days prior to such Distribution Date.
"Deutsche FRI" shall mean Deutsche Floorplan Receivables, Inc., a Nevada
corporation, and its successors and assigns.
"Deutsche FRLP" shall mean Deutsche Floorplan Receivables, L.P., a Delaware
limited partnership, and its successors.
"Deutsche FRLP Certificate" shall mean the certificate executed by the
Seller and authenticated by the Trustee, substantially in the form of Exhibit A
to the Existing Pooling and Servicing Agreement.
"Deutsche North America" shall mean Deutsche Bank Americas Holding Corp., a
Delaware corporation, and its successors in interest.
"DFS" shall mean Deutsche Financial Services Corporation, a Nevada
corporation, and its successors and assigns.
"Discount Factor" shall initially mean 0.50% and shall be adjusted as
provided in this definition. If on any Distribution Date the Net Receivables
Rate for such Distribution Date less (i) the weighted average of the Certificate
Rates (as determined in accordance with this definition) for all outstanding
Series (other than the Dealer Overconcentration Series) for such Distribution
Date less (ii) the annualized Net Loss Rate for the preceding twelve Collection
Periods is less than 1%, then the Discount Factor for such Distribution Date
shall be adjusted upwards, rounded up to the nearest 0.1% (but in no event to
exceed 1%), so that
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the Net Receivables Rate less the rate in clause (i) less the rate in clause
(ii) shall be equal to 1%; and the Discount Factor shall remain at such adjusted
percentage until it is further adjusted by the terms of this sentence or either
of the following two sentences. Notwithstanding the foregoing, the Seller, at
its discretion, may increase or decrease the Discount Factor, but in no event
shall the Discount Factor exceed 1% or be less than the percentage required by
the immediately preceding sentence or be greater than the percentage required by
the next sentence. Notwithstanding the foregoing, if the application of the
Discount Factor would cause the Pool Balance to be less than the Required
Participation Amount, then the Discount Factor shall be the percentage (which
shall in no event be less than 0%), rounded down to the nearest 0.1%, which,
when applied, shall cause the Pool Balance to at least equal the Required
Participation Amount. For purposes of this definition, (i) if a Certificate Rate
is calculated as the lesser of (x) a fixed rate or a formula rate and (y) the
Net Receivables Rate, then such Certificate Rate shall be the rate in clause (x)
and (ii) if an interest rate swap agreement provides the interest distributable
on a Series or Class of Investor Certificates, then the Certificate Rate for
such Series or Class of Investor Certificates shall be the interest rate payable
by the Trust to the related swap counterparty.
"Discount Portion" shall mean, with respect to a Receivable, the portion
thereof equal to the product of the Discount Factor and the outstanding
principal balance of such Receivable.
"Distribution Date" shall mean the fifteenth day of each month or, if such
day is not a Business Day, the next succeeding Business Day.
"Distribution Date Statement" shall mean, with respect to any Series, a
report prepared by the Servicer on each Determination Date for the immediately
preceding Collection Period in substantially the form set forth in the related
Supplement.
"Duff & Phelps" shall mean Duff & Phelps Credit Rating Co. or its
successor.
"Early Amortization Event" shall have the meaning specified in Section 9.1
and, with respect to any Series, shall also mean any Early Amortization Event
specified in the related Supplement.
"Early Amortization Period" shall mean, with respect to any
Series, the period beginning at the close of business on the Business Day
immediately preceding the day on which the Early Amortization Event is deemed to
have occurred and ending upon the earliest to occur of (a) the payment in full
to the Investor Certificateholders of such Series of the Invested Amount with
respect to such Series, (b) the Termination Date with respect to such Series and
(c) if such Early Amortization Period has resulted from the occurrence of an
Early Amortization Event described in Section 9.1(a), the end of the first
Collection Period during which an Early Amortization Event would no longer be
deemed to exist pursuant to Section 9.1(a), so long as no other Early
Amortization Event with respect to such Series shall have occurred and the
scheduled termination of the Revolving Period with respect to such
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Series shall not have occurred. The Dealer Overconcentration Series shall not
have an Early Amortization Period.
"Eligible Account" shall mean each individual revolving credit arrangement
payable in U.S. dollars and established by DFS or an Approved Affiliate with a
Dealer in the ordinary course of business pursuant to a Financing Agreement,
which arrangement, as of the date of determination with respect thereto: (a) is
in favor of a Dealer (i) which is doing business in the United States of America
(including its territories and possessions), (ii) which has not been identified
by the Servicer as being the subject of any voluntary or involuntary bankruptcy
proceeding or being in a voluntary or involuntary liquidation, and (iii) in
which the direct controlling shareholder of DFS (which is currently Deutsche
North America) or any Affiliate thereof does not have an equity investment, (b)
is in existence and maintained and serviced by DFS or an Approved Affiliate and
(c) is an Account in respect of which no amounts have been charged off as
uncollectible.
"Eligible Deposit Account" shall mean either (a) a segregated account with
an Eligible Institution or (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 of the states thereof, or
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.
"Eligible Institution" shall mean (a) the corporate trust department of the
Trustee or (b) a depository institution or trust company organized under the
laws of the United States of America or any one of the states thereof, or the
District of Columbia (or any domestic branch of a foreign bank), which at all
times (i) has either (A) a long-term unsecured debt rating of A2 or better by
Moody's, AAA by Standard & Poor's and, if Fitch has rated such debt, AA- or
better by Fitch or such other rating that is acceptable to each Rating Agency,
as evidenced by a letter from such Rating Agency to the Trustee or (B) a
certificate of deposit rating of P-1 by Moody's, A-1+ by Standard & Poor's and,
if Fitch has rated such certificate of deposit, F-1+ by Fitch or such other
rating that is acceptable to each Rating Agency, as evidenced by a letter from
such Rating Agency to the Trustee and (ii) whose deposits are insured by the
FDIC. If so qualified, the Trustee may be considered an Eligible Institution for
the purposes of clause (b) of this definition.
"Eligible Investments" shall mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form having original or remaining maturities of 30 days or less, but in no event
occurring later than the Distribution Date next succeeding the Trustee's
acquisition thereof, which evidence:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
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(b) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of the
United States of America or any state thereof (or any domestic branch of a
foreign bank) and subject to supervision and examination by Federal or
state banking or depository institution authorities; provided, however,
that at the time of the Trust's investment or contractual commitment to
invest therein, the commercial paper or other short-term unsecured debt
obligations (other than such obligations the rating of which is based on
the credit of a person or entity other than such depository institution or
trust company) thereof shall have a credit rating from each of the Rating
Agencies in the Highest Investment Category granted thereby;
(c) commercial paper having, at the time of the Trust's investment or
contractual commitment to invest therein, a rating from each of the Rating
Agencies in the Highest Investment Category granted thereby;
(d) investments in money market funds having a rating from each of the
Rating Agencies in the Highest Investment Category granted thereby or
otherwise approved in writing thereby;
(e) bankers' acceptances issued by any depository institution or trust
company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of America
or any agency or instrumentality thereof the obligations of which are
backed by the full faith and credit of the United States of America, in
either case entered into with a depository institution or trust company
(acting as principal) described in clause (b); and
(g) any other investment as to which (x) the Rating Agency Condition
has been satisfied and (y) the Seller certifies will not result in the
Seller or the Trust becoming an "investment company" under the Investment
Company Act.
"Eligible Receivable" shall mean each Receivable:
(a) which was originated or acquired by DFS or the related Approved
Affiliate in the ordinary course of business;
(b) which arose under an Eligible Account;
(c) which is owned by DFS or the related Approved Affiliate at the
time of sale or contribution by DFS or the related Approved Affiliate to
the Seller;
(d) which represents the obligation of a Dealer to repay an advance
made or to be made to or on behalf of such Dealer (i) to finance the
acquisition of Products or
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(ii) in connection with the Accounts Receivable Business or the Asset Based
Lending Business;
(e) which at the time of creation and, except at the Closing Date for
the initial Series in the case of Receivables in respect of which the
related financed Product has been sold, at the time of transfer to the
Trust is secured, to the extent required by the related Financing
Agreement, by, inter alia, a first priority perfected security interest
(whether by prior filing, purchase money security interest statutory
priority, or subordination agreement from prior filers or otherwise) in the
related Product, Accounts Receivable other assets financed by the related
advance (except that such security interest need not be a first priority
security interest (x) in the case of a Receivable arising in an Account for
which the payment terms are on a scheduled payment plan basis and the
maximum credit line is $250,000 or less and which was included as an
Account hereunder on or before the Closing Date for Series 1994-1 or (y) in
the case of any Receivable if the Rating Agency Condition is satisfied with
respect thereto); and the perfection of such security interest is governed
by the laws of one or more of the states of the United States, the District
of Columbia or, if the Rating Agency Condition is satisfied, a territory or
possession of the United States;
(f) which was created in compliance in all respects with all
Requirements of Law applicable thereto and pursuant to a Financing
Agreement which complies in all respects with all Requirements of Law
applicable to any party thereto;
(g) with respect to which all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained, effected or given by DFS, the related
Approved Affiliate or the Seller in connection with the creation of such
Receivable or the transfer thereof to the Trust or the execution, delivery
and performance by DFS or the related Approved Affiliate of the Financing
Agreement pursuant to which such Receivable was created, have been duly
obtained, effected or given and are in full force and effect;
(h) as to which at all times following the transfer of such Receivable
to the Trust, the Trust shall have (x) good and marketable title thereto
free and clear of all Liens arising prior to the transfer or arising at any
time other than Liens permitted by this Agreement, or (y) a first priority
perfected security interest therein and in the related Collateral Security
(and in the proceeds thereof);
(i) which shall at all times be the legal, valid, binding and
assignable payment obligation of the Dealer relating thereto, enforceable
against such Dealer in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws, now or hereafter in
effect, affecting the enforcement of creditors' rights in general and
except as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity);
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(j) which at the time of transfer to the Trust is not subject to any
valid claim of a right of rescission, setoff, counterclaim or any other
defense (including defenses arising out of violations of usury laws) of the
Dealer;
(k) as to which, at the time of transfer of such Receivable to the
Trust, DFS, the related Approved Affiliate and the Seller have satisfied
all their respective obligations with respect to such Receivable required
to be satisfied at such time (whether pursuant to the related Financing
Agreement, the related Floorplan Agreement or otherwise);
(l) as to which, at the time of transfer of such Receivable to the
Trust, neither DFS, the related Approved Affiliate nor the Seller has taken
or failed to take any action which would impair the rights of the Trust or
the Certificateholders therein;
(m) which constitutes "chattel paper", an "account" or a "general
intangible", and is not represented by an "instrument," each as defined in
Article 9 of the UCC as then in effect in the State of Missouri; provided
that the Financing Agreement giving rise to such Receivable may be subject
by its terms, or by judicial interpretation, to the laws of other states;
(n) with respect to which the representations set forth in Sections
2.4(a)(i) and (ii) were correct as of the Transfer Date with respect
thereto; and
(o) if such Receivable has the benefit of a Floorplan Agreement, such
Floorplan Agreement provides that the related Manufacturer is obligated,
subject to the specific terms of such Floorplan Agreement (which may vary
among Floorplan Agreements), to repurchase Products that the Servicer
repossesses upon a default by the related Dealer.
"Eligible Servicer" shall mean the Trustee or an entity which, at the time
of its appointment as Servicer, (a) is legally qualified and has the capacity to
service the Accounts, (b) has demonstrated the ability to professionally and
competently service a portfolio of similar accounts in accordance with high
standards of skill and care and (c) is qualified to use the software that is
then currently being used to service the Accounts or obtains the right to use or
has its own software which is adequate to perform its duties under this
Agreement.
"Enhancement" shall mean the rights and benefits provided to the Investor
Certificateholders of any Series or Class pursuant to any letter of credit,
surety bond, cash collateral account, spread account, guaranteed rate agreement,
maturity liquidity facility, tax protection agreement, interest rate swap
agreement or other similar arrangement. The subordination of any Series or Class
to any other Series or Class or of the Seller's Interest to any Series or Class
shall be deemed to be an Enhancement. Enhancement provided to a particular
Series or Class shall not be available to another Series or Class unless the
applicable Enhancement Agreement otherwise provides.
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"Enhancement Agreement" shall mean any agreement, instrument or document
governing the terms of any Enhancement or pursuant to which any Enhancement is
issued or outstanding.
"Enhancement Provider" shall mean the Person providing any Enhancement,
other than any Certificateholders (including any holders of the Seller's
Certificates) the Certificates of which are subordinated to any Series or Class.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Euroclear Operator" shall mean Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System.
"Exchange Date" shall mean any date that is after the Series Issuance Date,
in the case of Definitive Euro-Certificates in registered form, or upon
presentation of certification of non-United States beneficial ownership (as
described in Section 6.11), in the case of Definitive Euro-Certificates in
bearer form.
"Existing Manufacturer" shall mean (i) each Manufacturer with which DFS has
entered into a business arrangement, either through a Floorplan Agreement or any
other arrangement, on or prior to the Closing Date for Series 1994-1, (ii) each
Manufacturer with which DFS enters into such a business arrangement after the
Closing Date for Series 1994-1 so long as the aggregate balances of the
Receivables subject to such Floorplan Agreement do not exceed lesser of (a) 1%
of the Pool Balance at the beginning of the Collection Period in which the
addition of the related Additional Account occurs and (b) $25 million and (iii)
each Manufacturer with which DFS enters into such a business arrangement after
the Closing Date for Series 1994-1 and as to which the Rating Agency Condition
is satisfied.
"Existing Pooling and Servicing Agreement" shall have the meaning set forth
in the recitals.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor entity thereto.
"Final Maturity Date" shall have the meaning specified in Section 12.1.
"Financing Agreement" shall mean any Wholesale Financing Agreement,
Accounts Receivable Financing Agreement or Asset Based Lending Financing
Agreement.
"Financing Guidelines" shall mean DFS's written policies and procedures, as
such policies and procedures may be amended from time to time, (a) relating to
the operation of the Floorplan Business, the Accounts Receivable Business and
the Asset Based Lending Business, including the written policies and procedures
for determining the interest rate, if
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any, charged to Dealers, the other terms and conditions relating to DFS's
wholesale financing accounts, the creditworthiness of Dealers and the extension
of credit to Dealers, and (b) relating to the maintenance of accounts and
collection of receivables.
"Fitch" shall mean Fitch IBCA, Inc. or its successor.
"Floorplan Agreement" shall mean an agreement, entered into by DFS or the
related Approved Affiliate and a Manufacturer pursuant to which such
Manufacturer agrees, among other matters, to repurchase from DFS or such
Approved Affiliate, as applicable, Products sold by such Manufacturer to any of
its Dealers and financed by DFS or such Approved Affiliate under a Wholesale
Financing Agreement if DFS or such Approved Affiliate acquires possession of
such Products because of a default by such Dealer under such Wholesale Financing
Agreement, voluntary surrender or other circumstances.
"Floorplan Business" shall mean the extensions of credit made by DFS or the
related Approved Affiliate to Dealers in order to finance Products purchased by
Dealers from Manufacturers.
"Floorplan Receivables" shall mean Receivables arising from the Floorplan
Business.
"Foreign Clearing Agency" shall mean Cedel and the Euroclear Operator.
"Global Certificate" shall have the meaning specified in Section 6.11.
"Governmental Authority" shall mean 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.
"Highest Investment Category" means, with respect to a Rating Agency, the
highest long-term or short-term rating given by that Rating Agency with respect
to long-term or short-term obligations or investments, as the case may be.
"Holder" shall mean a Certificateholder.
"Ineligible Account" shall mean an Account that at the time of
determination is not an Eligible Account.
"Ineligible Amount" on any Determination Date shall mean the amount of
Ineligible Receivables included in the Trust on such Determination Date.
"Ineligible Receivable" shall mean, without duplication, (i) any Receivable
that arises in an Eligible Account, was not an Eligible Receivable at the time
of its transfer to the Trust and was transferred to the Trust in accordance with
Section 2.9, (ii) any Receivable that,
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at the time of its transfer to the Trust, has been SAU or NSF for more than 30
days, and (iii) the aggregate of Receivables that, at the time of transfer of
each such Receivable to the Trust, have been SAU or NSF for a period of one to
30 days but only to the extent that such aggregate amount exceeds 0.75% of the
Pool Balance at the end of such Collection Period.
"Initial Account" shall mean each individual revolving credit arrangement
established by DFS or an Approved Affiliate with a Dealer which was identified
in the computer file or microfiche or written list delivered to the Trustee on
the Closing Date for the Series issued in 1993 by the Seller pursuant to Section
2.1.
"Initial Invested Amount" shall mean, with respect to any Series and for
any date, an amount equal to the initial invested amount specified in the
related Supplement. The Initial Invested Amount for any Series may be increased
or decreased from time to time as specified in the related Supplement. However,
the Dealer Overconcentration Series shall not have an Initial Invested Amount.
"Insolvency Event" shall mean any event specified in Section 9.1(b) or
9.1(c).
"Insolvency Proceeds" shall have the meaning specified in Section 9.2(b).
"Insurance Proceeds" with respect to an Account shall mean any amounts
received by the Servicer pursuant to any policy of insurance which are required
to be paid to DFS pursuant to a Wholesale Financing Agreement, Accounts
Receivable Financing Agreement or Asset Based Lending Financing Agreement.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Invested Amount" shall mean, with respect to any Series and at the time of
determination thereof, an amount equal to the invested amount specified in the
related Supplement at such time. However, the Dealer Overconcentration Series
shall not have an Invested Amount.
"Investment Company Act" shall mean the Investment Company Act of 1940, as
amended.
"Investor Certificateholder" shall mean the Person in whose name a
Registered Certificate is registered in the Certificate Register or the bearer
of any Global Certificate and, with respect to the Dealer Overconcentration
Series, shall mean the Person or Persons in whose name an interest in the Dealer
Overconcentration Series is registered in the Certificate Register.
"Investor Certificates" shall mean any one of the certificates (including
the Registered Certificates or any Global Certificate) executed by the Seller
and authenticated by
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or on behalf of the Trustee, substantially in the form attached to the related
Supplement other than the Seller's Certificates. The Dealer Overconcentration
Series shall not be evidenced by any certificate.
"Investors' Servicing Fee" shall mean the portion of the Servicing Fee
allocable to the Investor Certificateholders pursuant to the terms of the
Supplements.
"Lien" shall mean any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, participation interest, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever, including any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing of
any financing statement under the UCC or comparable law of any jurisdiction to
evidence any of the foregoing; provided, however, that (i) any assignment
permitted by Section 8.2, (ii) any Lien created by this Agreement, any
Supplement or any Participation Agreement, (iii) any security interests in
Products or Accounts Receivable that are subordinate to the security interests
securing the related Receivables and (iv) any inchoate lien that arises by
operation of law, is not delinquent or due and affects collateral securing a
Receivable (but does not encumber any Receivable) shall not be deemed to
constitute a Lien.
"Manager" shall mean the lead manager, manager or co-manager or person
performing a similar function with respect to an offering of Definitive
Euro-Certificates.
"Manufacturer" shall mean a Person engaged generally in the business of
manufacturing or distributing Products for sale or lease to Dealers in the
ordinary course of business.
"Manufacturer Overconcentration" on any Determination Date shall mean, with
respect to all Accounts covered by a Floorplan Agreement with the same
Manufacturer as obligor, the excess of (a) the aggregate of all amounts of
Principal Receivables in such Accounts on the last day of the Collection Period
immediately preceding such Determination Date that are covered by such Floorplan
Agreement over (b) 15% of the Pool Balance on the last day of such immediately
preceding Collection Period or, if the Rating Agency Condition is satisfied,
such larger percentage of such Pool Balance as is stated in the notice from each
applicable Rating Agency in connection with the satisfaction of such Rating
Agency Condition.
"Miscellaneous Payments" shall mean, with respect to any Collection Period
and the related Distribution Date, the sum of (a) Adjustment Payments and
Transfer Deposit Amounts on deposit in the Collection Account on such
Distribution Date and (b) Unallocated Principal Collections available to be
treated as Miscellaneous Payments pursuant to Section 4.4 on such Distribution
Date.
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"Monthly Payment Rate" shall mean, unless otherwise specified for a Series
in the related Supplement, for any Collection Period, the percentage derived
from dividing the Principal Collections (without excluding therefrom the
Discount Portions) collected during such Collection Period by the aggregate
balance of the Principal Receivables (without deducting therefrom the Discount
Portions) as of the beginning of such Collection Period.
"Monthly Servicing Fee" shall mean, with respect to any Series, the amount
specified therefor in the related Supplement.
"Moody's" shall mean Moody's Investors Service, Inc., or its successor.
"Net Loss Rate" shall mean, with respect to a Collection Period, the
percentage derived from a fraction, the numerator of which is the aggregate of
the net losses on Receivables (exclusive of the Ineligible Receivables) that
were charged off during such Collection Period (i.e., gross losses less any
recoveries (including recoveries from Collateral Security) received in such
Collection Period in respect of charged off Receivables, whether such charge off
occurred in such Collection Period or a prior Collection Period) and the
denominator of which is the aggregate of the Principal Receivables (without
deducting therefrom the Discount Portions) in the Trust at the beginning of such
Collection Period.
"Net Receivables Rate" shall mean, with respect to a Distribution Date and
unless otherwise specified for a Series in the related Supplement, (i) the
weighted average of the interest rates borne by the Receivables during the
second Collection Period preceding such Distribution Date (interest payments on
the Receivables at such rates being due and payable in the Collection Period
preceding such Distribution Date) plus (ii) the product of (x) the Monthly
Payment Rate for the Collection Period preceding such Distribution Date, (y) the
Discount Factor for such Distribution Date and (z) twelve less (iii) 2% per
annum.
"Non-Principal Collections" shall mean the sum of (a) Collections of
interest and all other non-principal charges (including insurance service fees
and handling fees) on the Receivables, (b) the product of (i) principal payments
on the Receivables and (ii) the Discount Factor, and (c) all Recoveries.
"Non-Principal Receivables" with respect to any Account shall mean all
amounts billed to the related Dealer in respect of interest and all other
non-principal charges.
"Notice Date" shall have the meaning specified in Section 2.5(c).
"NSF" shall mean, with respect to a Receivable, that a check in payment of
such Receivable has been returned because of insufficient funds and has not
thereafter been paid.
"Officers' Certificate" with respect to any corporation (in the case of the
Seller, the Officers' Certificate shall be with respect to Deutsche FRI) shall
mean, unless otherwise
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specified in this Agreement, a certificate signed by (a) the Chairman of the
Board, Vice Chairman of the Board, President or any Vice President and (b) a
Treasurer, Associate or Assistant Treasurer, Secretary or Assistant Secretary of
such corporation.
"Opinion of Counsel" shall mean a written opinion of counsel, who may be
counsel of the Seller or DFS and who shall be acceptable to the Trustee.
"Overconcentrated Dealer" shall have the meaning specified in the
definition of Dealer Overconcentration.
"Overconcentration Amount" on any Determination Date shall mean the sum of
the Asset Based Receivable Overconcentration, the A/R Receivable
Overconcentration, the Manufacturer Overconcentrations and the Product Line
Overconcentrations on such Determination Date.
"Overconcentration Percentage" on any Determination Date shall mean, with
respect to an Overconcentrated Dealer, the percentage equivalent of a fraction,
(a) the numerator of which is equal to the result of (i) the aggregate amount of
Principal Receivables in all Accounts of such Dealer as of the end of the
Collection Period immediately preceding such Determination Date, minus (ii) the
product of (A) the Concentration Limit Percentage for such Overconcentrated
Dealer, and (B) the Unconcentrated Pool Balance as of the end of such Collection
Period, and (b) the denominator of which is the amount determined in accordance
with clause (a)(i).
"Participation Agreement" shall mean an agreement between DFS or an
Approved Affiliate and a lender (i) pursuant to which DFS or such Approved
Affiliate, as applicable, conveys to such lender an undivided interest in
certain receivables that is pari passu in all respects (other than
nonsubordinated interest strips and fees) with the undivided interest retained
by DFS or such Approved Affiliate, as applicable, and (ii) that satisfies the
applicable requirements of the Receivables Contribution and Sale Agreement.
"Participation Interest" shall mean the undivided interest, created
pursuant to a Participation Agreement, in a receivable in which a Receivable
represents the remaining undivided interest. The Trustee is hereby authorized to
execute and deliver any documentation reasonably requested and prepared by the
Seller in order to effect and evidence any Participation Interest, subject in
each case to the terms and conditions of this Agreement and the Receivables
Contribution and Sale Agreement.
"Paying Agent" shall mean any Person authorized by the Trustee to make
distributions of principal of or interest on any Certificates on behalf of the
Trustee.
"Permitted Transactions" shall have the meaning specified in Section
2.6(f).
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"Person" shall mean any legal person, including any individual,
corporation, partnership, association, limited liability company, joint-stock
company, trust, unincorporated organization, governmental entity or other
entity.
"Pool Balance" shall mean, as of the time of determination thereof, the
product of (a) the aggregate of Principal Receivables (without deducting
therefrom the Discount Portion) in the Trust at such time (other than all
Ineligible Receivables) and (b) 1 minus the Discount Factor.
"Principal Collections" shall mean Collections under the Receivables other
than Non-Principal Collections.
"Principal Receivables" with respect to an Account shall mean amounts shown
on the Servicer's records as Receivables (other than such amounts which
represent Non-Principal Receivables and Discount Portions) payable by the
related Dealer.
"Principal Terms" shall mean, with respect to any Series, one or more of
the following items, not all of which will necessarily apply to each Series: (a)
the name or designation; (b) the initial principal amount (or method for
calculating such amount), if applicable; (c) the Certificate Rate or Certificate
Rates (or method for the determination thereof); (d) the payment date or dates
and the date or dates from which interest shall accrue; (e) the method for
allocating Collections to Investor Certificateholders; (f) the designation of
any Series Accounts and the terms governing the operation of any such Series
Accounts; (g) the Monthly Servicing Fee and the Investors' Servicing Fee; (h)
any Enhancement Provider for and terms of any form of Enhancement with respect
thereto; (i) the terms on which the Investor Certificates of such Series may be
exchanged for Investor Certificates of another Series, repurchased, redeemed in
an optional redemption or mandatory redemption or remarketed to other investors;
(j) the Termination Date; (k) the number of Classes of Investor Certificates of
such Series and, if more than one Class, the rights and priorities of each such
Class; (l) the extent to which the Investor Certificates of such Series shall be
issuable in temporary or permanent global form (and, in such case, the
depositary for such Global Certificate or certificates, the terms and
conditions, if any, upon which such Global Certificate may be exchanged, in
whole or in part, for Definitive Certificates, and the manner in which any
interest payable on a temporary or Global Certificate shall be paid); (m)
whether the Investor Certificates of such Series may be issued in bearer form
and any limitations imposed thereon; (n) the priority of such Series with
respect to any other Series; (o) whether such Series shall be part of a group;
(p) the date on which such Series will begin its accumulation period,
amortization period or controlled amortization period, if any; and (q) any other
terms of such Series which are permitted or not prohibited by this Agreement.
"Product Line Overconcentration" on any Determination Date shall mean, with
respect to Accounts created pursuant to Wholesale Financing Agreements, the
excess of (a) the aggregate of all amounts of Principal Receivables in such
Accounts that represent financing for a single Product line (according to DFS's
classification system) on the last day of the
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Collection Period immediately preceding such Determination Date over (b) (i) 25%
of the Pool Balance on the last day of such immediately preceding Collection
Period if such Product line is not computers and related equipment and (ii) 40%
of such Pool Balance if such Product line is computers and related equipment or,
in the case of clause (i) or (ii), if the Rating Agency Condition is satisfied,
such larger percentage of such Pool Balance as is stated in the applicable
notice from each applicable Rating Agency in connection with the satisfaction of
such Rating Agency Condition.
"Products" shall mean the commercial and consumer goods financed by DFS or
the related Approved Affiliate for Dealers pursuant to a Wholesale Financing
Agreement.
"Purchase Price" shall mean, with respect to any Receivable for any date on
which such Receivable is to be purchased pursuant to Section 3.3 or by DFS as a
result of the breach of representations and warranties in the Receivables
Contribution and Sale Agreement, (a) an amount equal to the amount payable by
the Dealer in respect thereof as reflected in the records of the Servicer as of
the date of purchase plus (b) interest accrued (to the extent interest accrues
on such Receivable) from the end of the last Collection Period in respect of
which interest on such Receivable was billed by the Servicer, at a per annum
rate equal to the rate being charged to the Dealer under the Wholesale Financing
Agreement, Accounts Receivable Financing Agreement or Asset Based Lending
Financing Agreement, as the case may be, based on the actual number of days
elapsed over a year of 360 days.
"Rating Agency" shall mean, with respect to any outstanding Series or
Class, each statistical rating agency, if any, selected by the Seller to rate
the Investor Certificates of such Series or Class.
"Rating Agency Condition" shall mean, with respect to any action, that each
Rating Agency shall have notified the Seller, the Servicer and the Trustee in
writing that such action shall not result in a reduction or withdrawal of such
Rating Agency's rating of any outstanding Series or Class with respect to which
it is a Rating Agency. The Rating Agency Condition shall be inapplicable at any
time that no such Series or Class is outstanding.
"Reassignment" shall have the meaning specified in Section 2.7(c).
"Receivables" shall mean, with respect to an Account, all amounts payable
(including interest, finance charges and other charges), and the obligation to
pay such amounts, by the related Dealer from time to time in respect of advances
made by DFS or the related Approved Affiliate to or on behalf of such Dealer in
connection with the Floorplan Business, the Accounts Receivable Business, or the
Asset Based Lending Business, as the case may be, together with the group of
writings evidencing such amounts and the security interest created in connection
therewith and all of the rights, remedies, powers and privileges thereunder
(including under the related Financing Agreement); provided that if a
Participation Interest has been created in respect of such Account, whether
before or after that Account has been designated as an Account, the amounts so
payable by the related Dealer that are allocable
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to such Participation Interest shall not be part of the "Receivables" in respect
of such Account. A Receivable that, prior to its transfer to the Seller, was
subject to a participation from an Approved Affiliate in favor of DFS shall be
considered a Receivable. Receivables which become Defaulted Receivables shall
remain in the Trust but shall cease to be included in the Pool Balance on the
day on which they become Defaulted Receivables. Delayed Funding Receivables
shall cease to be included as Receivables on the day on which an Insolvency
Event in respect of DFS occurs, whether or not such Delayed Funding Receivables
are funded after the occurrence of such Insolvency Event. Receivables which DFS
or the related Approved Affiliate is unable to transfer to the Seller pursuant
to the Receivables Contribution and Sale Agreement or which the Seller is unable
to transfer to the Trust as provided in Section 2.6(b) and Receivables which
arise in Designated Accounts from and after the related Removal Commencement
Date shall not be included in calculating the Pool Balance.
"Receivables Contribution and Sale Agreement" shall mean the Receivables
Contribution and Sale Agreement as amended and restated as of October 1, 1996
among DFS, Deutsche Business Services Corporation and the Seller (and any
Affiliate of DFS which may become a party thereto from time to time).
"Record Date" shall mean, with respect to any Distribution Date, the close
of business on the day preceding such Distribution Date; provided that with
respect to any Distribution Date for a Series for which Definitive Certificates
have been issued pursuant to Section 6.10, subsequent to the issuance of such
Definitive Certificates the Record Date for such Distribution Date shall be the
last day of the month preceding the month in which such Distribution Date
occurs.
"Records" shall mean, with respect to any Receivable, all documents, books,
records and other information (including, without limitation, computer programs,
tapes, discs, punch cards, data processing software and related property and
rights) relating to such Receivable and the related Dealer.
"Recoveries" on any Determination Date shall mean all amounts received,
including Insurance Proceeds, by the Servicer during the Collection Period
immediately preceding such Determination Date with respect to Receivables which
have previously become Defaulted Receivables.
"Reference Rate" shall mean the per annum rate of interest, if any,
designated from time to time by DFS or the related Approved Affiliate, as
applicable, to a Wholesale Financing Agreement, A/R Financing Agreement or Asset
Based Lending Financing Agreement.
"Registered Certificateholder" shall mean the Holder of a Registered
Certificate.
"Registered Certificates" shall have the meaning specified in Section 6.1.
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"Related Accounts" shall mean all Accounts relating to a single Dealer.
"Related Documents" shall mean, collectively, the Receivables Contribution
and Sale Agreement and, with respect to any Series, any applicable Enhancement
Agreement.
"Removal Commencement Date" shall have the meaning specified in Section
2.8(a).
"Removal Date" shall mean a date specified in a Removal Notice as the date
on which the applicable Accounts are to be removed.
"Removal Notice" shall mean a notice delivered by the Seller (or the
Servicer on its behalf) pursuant to Section 2.7 or 2.8 specifying a Removal Date
for Removed Accounts.
"Removed Account" shall have the meaning specified in Section 2.7(b).
"Required Participation Amount" shall mean, at any time of determination,
an amount equal to the sum of the amounts for each Series obtained by
multiplying the Required Participation Percentage for such Series by the Initial
Invested Amount for such Series at such time.
"Required Participation Percentage" shall mean, with respect to any Series,
the percentage specified therefor in the related Supplement. However, the Dealer
Overconcentration Series shall not have a Required Participation Percentage.
"Requirements of Law" for any Person shall mean the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or Governmental Authority, in each case applicable to or binding upon
such Person or to which such Person is subject, whether Federal, state or local
(including usury laws and the Federal Truth in Lending Act).
"Responsible Officer" shall mean any officer of the Trustee with direct
responsibility for the administration of this Agreement and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with that relevant
subject.
"Revolving Period" shall mean with respect to any Series, the period
specified as such in the related Supplement. However, the Dealer
Overconcentration Series shall not have a period designated as a Revolving
Period.
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"SAU" shall mean, with respect to a Receivable, that if such Receivable was
originally secured by a security interest in a Product, such Product has been
sold and such Receivable is not paid in full.
"Seller" shall mean Deutsche FRLP.
"Seller's Certificates" shall mean, collectively, the Deutsche FRLP
Certificate and any outstanding Supplemental Certificates.
"Seller's Interest" shall have the meaning specified in Section 4.1.
"Seller's Participation Amount" shall mean, at any time of determination,
an amount equal to (a) the Pool Balance at such time minus (b) the aggregate
Invested Amounts for all outstanding Series (other than the Dealer
Overconcentration Series, which shall not be considered to have an Invested
Amount) at such time.
"Series" shall mean (a) any series of Investor Certificates and (b) the
Dealer Overconcentration Series.
"Series Account" shall mean any deposit, trust, escrow, reserve or similar
account maintained for the benefit of the Investor Certificateholders of any
Series or Class, as specified in any Supplement.
"Series Cut-Off Date" shall mean, with respect to any Series, the date, if
any, specified as such in the related Supplement.
"Series Issuance Date" shall mean, with respect to any Series, the date on
which the Investor Certificates of such Series are to be originally issued in
accordance with Section 6.3 and the related Supplement.
"Series 1994-1" shall mean the series of Investor Certificates issued and
designated as "Series 1994-1".
"Service Transfer" shall have the meaning specified in Section 10.1.
"Servicer" shall initially mean DFS, in its capacity as Servicer under this
Agreement, and after any Service Transfer, the Successor Servicer.
"Servicer Default" shall have the meaning specified in Section 10.1.
"Servicing Fee" shall have the meaning specified in Section 3.2.
"Servicing Officer" shall mean any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Receivables whose name
appears on a
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list of servicing officers furnished to the Trustee by the Servicer as such list
may from time to time be amended.
"Specified Party" means any of the Seller, the Servicer, DFS, if it is not
the Servicer, Deutsche North America, so long as DFS is an Affiliate of Deutsche
North America, or, if Deutsche North America has merged or consolidated with
another Person, the surviving Person (but only so long as DFS is an Affiliate of
the surviving Person) or any other Person which is the direct, controlling
shareholder of DFS.
"Standard & Poor's" shall mean Standard & Poor's, a division of The McGraw
Hill-Companies, Inc., or its successor.
"Successor Servicer" shall have the meaning specified in Section 10.2(a).
"Supplement" shall mean, with respect to any Series, a supplement to this
Agreement, executed and delivered in connection with the original issuance of
the Investor Certificates of such Series, if applicable, pursuant to Section
6.3, and all amendments thereof and supplements thereto. No Investor
Certificates shall be issued pursuant to the Supplement for the Dealer
Overconcentration Series.
"Supplemental Certificate" shall have the meaning specified in Section 6.3.
"Tax Opinion" shall mean, with respect to any action, an Opinion of Counsel
to the effect that, for Federal income and Missouri state income and franchise
tax purposes, (a) such action shall not adversely affect the characterization of
the Investor Certificates of any outstanding Series or Class as debt or as
partnership interests, (b) such action shall not cause or constitute a taxable
event with respect to any Investor Certificateholders or the Trust and (c) in
the case of Section 6.3(b), each Class of the Investor Certificates of the new
Series shall be characterized as debt or as partnership interests.
"Termination Date" shall mean, with respect to any Series, the termination
date, if any, specified in the related Supplement. However, the Supplement for
the Dealer Overconcentration Series shall not specify a Termination Date.
"Termination Notice" shall have the meaning specified in Section 10.1.
"Termination Proceeds" shall have the meaning specified in Section 12.2(c).
"Transfer Agent and Registrar" shall have the meaning specified in Section
6.4.
"Transfer Date" shall have the meaning specified in Section 2.1.
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"Transfer Deposit Amount" shall mean, with respect to any Receivable
reassigned or assigned to the Seller or the Servicer, as applicable, pursuant to
Section 2.4(c) or Section 3.3, the amounts specified in such Sections.
"Trust" shall mean the Distribution Financial Services Floorplan Master
Trust created by this Agreement, formerly known as the Deutsche Floorplan
Receivables Master Trust, the corpus of which shall consist of the Trust Assets.
"Trust Assets" shall have the meaning specified in Section 2.1.
"Trust Invested Amount" shall mean, at any time of determination, the sum
of the Invested Amounts for all outstanding Series at such time.
"Trust Termination Date" shall have the meaning specified in Section 12.1.
"Trustee" shall mean The Chase Manhattan Bank, or its successor in
interest, or any successor trustee appointed as herein provided.
"UCC" shall mean the Uniform Commercial Code, as amended from time to time,
as in effect in any applicable jurisdiction.
"Unallocated Principal Collections" shall have the meaning specified in
Section 4.4.
"Unconcentrated Percentage" shall mean, with respect to an Overconcentrated
Dealer, the result of (a) 100% minus (b) the Overconcentration Percentage for
such Overconcentrated Dealer.
"Unconcentrated Pool Balance" shall mean, as of the end of any Collection
Period, the lesser of: (1) the Pool Balance at the end of such Collection
Period, and (2)(a)(i) such Pool Balance minus (ii) the sum of the Principal
Receivables in all Accounts of all Overconcentrated Dealers at the end of such
Collection Period, divided by (b)(i) 100% minus (ii) the sum of (x) the product
of (A) the number of Overconcentrated Dealers as to which the applicable
Concentration Limit Percentage is 3% and (B) 3%, (y) the product of (A) the
number of Overconcentrated Dealers as to which the applicable Concentration
Limit Percentage is 2% and (B) 2%, and (z) the product of (A) the number of
Overconcentrated Dealers as to which the applicable Concentration Limit
Percentage is other than 3% or 2% and (B) in each case, such applicable
Concentration Limit Percentage.
"Vice President" when used with respect to the Seller and Servicer shall
mean any vice president (in the case of the Seller, a vice president of Deutsche
FRI) whether or not designated by a number or word or words added before or
after the title "vice president".
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"Wholesale Financing Agreement" shall mean a wholesale
financing agreement entered into by DFS or the related Approved Affiliate and a
Dealer in order to finance Products purchased by such Dealer from a
Manufacturer.
SECTION 1.2. Other Definitional Provisions.
-----------------------------
(a) All terms defined in this 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 in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document 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 in this Agreement or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Agreement or in any such certificate or other document shall control.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section, Schedule
and Exhibit references contained in this Agreement are references to Sections,
Schedules and Exhibits in or to this Agreement unless otherwise specified; and
the term "including" shall mean "including without limitation."
(d) The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
(e) All references to any agreement shall be understood to be
references to such agreement as it may be amended, amended and restated or
otherwise modified from time to time.
SECTION 1.3. Provisions Relating to Rating Agencies.
Provisions in this Agreement relating to Standard & Poor's, Moody's, Fitch, Duff
& Phelps or a Rating Agency shall be effective only so long as there is a Series
of Investor Certificates outstanding that has been rated by such Rating Agency
at the request of the Seller. By way of illustration and not limitation of the
foregoing, if no Series of Investor Certificates then outstanding has been rated
at the request of the Seller by Fitch, a notice required hereunder to be given
to a Rating Agency need not be given to Fitch and an Eligible Institution need
not have its debt or certificates of deposit rated by Fitch.
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ARTICLE II
Conveyance of Receivables
-------------------------
SECTION 2.1. Conveyance of Receivables. By execution of this
Agreement, the Seller does hereby sell, transfer, assign, set over and otherwise
convey, without recourse (except as expressly provided herein), to the Trust for
the benefit of the Certificateholders and the other Beneficiaries on the Closing
Date for the Series issued in 1993, in the case of the Initial Accounts, and on
the applicable Addition Date, in the case of Additional Accounts, (a) all of its
right, title and interest in, to and under the Receivables in each Account and
all Collateral Security with respect thereto owned by the Seller at the close of
business on the Cut-Off Date, in the case of the Initial Accounts, and on the
applicable Additional Cut-Off Date, in the case of Additional Accounts, and all
monies due or to become due and all amounts received with respect thereto and
all proceeds (including "proceeds" as defined in Section 9-306 of the UCC as in
effect in the State of Missouri and Recoveries) thereof, (b) all of the Seller's
rights, remedies, powers and privileges with respect to such Receivables, and
the Receivables conveyed to the Trust in the next sentence, under the related
Floorplan Agreements, if any, (c) all of the Seller's rights, remedies, powers
and privileges with respect to such Receivables under the Receivables
Contribution and Sale Agreement, and (d) without limiting the foregoing, all of
the Seller's right, title and interest in, to and under the Receivables
Contribution and Sale Agreement. As of each Business Day prior to the earlier of
(i) the occurrence of an Early Amortization Event specified in Section 9.1(b),
(c), (d) or (e) and (ii) the Trust Termination Date, on which Receivables are
created in the Accounts (a "Transfer Date"), the Seller does hereby sell,
transfer, assign, set over and otherwise convey, without recourse (except as
expressly provided herein), to the Trust for the benefit of the
Certificateholders and the other Beneficiaries, all of its right, title and
interest in, to and under the Receivables in each Account (other than any
Receivables created in any Designated Account from and after the applicable
Removal Date) and all Collateral Security with respect thereto owned by the
Seller at the close of business on such Transfer Date and not theretofore
conveyed to the Trust, all monies due or to become due and all amounts received
with respect thereto and all proceeds (including "proceeds" as defined in
Section 9-306 of the UCC as in effect in the State of Missouri and Recoveries)
thereof. Such property, together with all monies on deposit in, and Eligible
Investments credited to, the Collection Account or any Series Account, any
Enhancements and the Collateral Security with respect to the Receivables shall
collectively constitute the assets of the Trust (the "Trust Assets"). The
foregoing sale, transfer, assignment, set-over and conveyance and any subsequent
sales, transfers, assignments, set-overs and conveyances do not constitute, and
are not intended to result in, the creation or an assumption by the Trust, the
Trustee, any Agent or any Beneficiary of any obligation of the Servicer, DFS,
the Seller, or any other Person in connection with the Accounts, the Receivables
or any Participation Interest or under any agreement or instrument relating
thereto (including any Participation Agreement), including any obligation to any
Dealers, Manufacturers, or owners of a Participation Interest and DFS (and not
any of the other foregoing Persons) shall continue to perform and be responsible
for their respective obligations under the Financing Agreements, Floorplan
Agreements, Participation Agreements and any
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related agreements and arrangements. The foregoing transfer, assignment, setover
and conveyance to the Trust, and any subsequent transfer, assignment, setover
and conveyance to the Trust, shall be made to the Trustee, on behalf of the
Trust, and each reference in this Agreement or any Supplement to any such
transfer, assignment, setover and conveyance shall be construed accordingly.
In connection with such sales, the Seller agrees to
record and file, at its own expense, a financing statement on form UCC-1 (and
continuation statements when applicable) with respect to the Receivables now
existing and hereafter created for the sale of chattel paper, accounts and
general intangibles (as defined in Section 9-105 of the UCC as in effect in any
state where the Seller's or DFS's chief executive offices or books and records
relating to the Receivables are located) meeting the requirements of applicable
state law in such manner and in such jurisdictions as are necessary to perfect
the sale and assignment of the Receivables and the other Trust Assets to the
Trust, and to deliver a file-stamped copy of such financing statements or other
evidence of such filing to the Trustee on or prior to the Closing Date for the
Series issued in 1993, in the case of the Initial Accounts, and (if any
additional filing is so necessary) the applicable Addition Date, in the case of
Additional Accounts. The Trustee shall be under no obligation whatsoever to file
such financing statement, or a continuation statement to such financing
statement, or to make any other filing under the UCC in connection with such
sales.
In connection with such sales, the Seller further
agrees, at its own expense, on or prior to the Closing Date for the Series
issued in 1993, in the case of the Initial Accounts, the applicable Addition
Date, in the case of Additional Accounts, and the applicable Removal
Commencement Date, in the case of Removed Accounts, (a) to cause DFS to indicate
in its books and records, which may include computer files, as required by the
Receivables Contribution and Sale Agreement, that the Receivables created in
connection with the Accounts (other than Removed Accounts) have been sold, and
the Collateral Security assigned, to the Seller in accordance with the
Receivables Contribution and Sale Agreement and sold to the Trust pursuant to
this Agreement for the benefit of the Certificateholders and the other
Beneficiaries and (b) to deliver to the Trustee (or cause DFS to do so) a
computer file or microfiche or written list containing a true and complete list
of all such Accounts (other than Removed Accounts) specifying for each such
Account, as of the Cut-Off Date, in the case of the Initial Accounts, and the
applicable Additional Cut-Off Date, in the case of Additional Accounts, (i) its
account number and (ii) the aggregate amount of Principal Receivables in such
Account. Such file or list, as supplemented from time to time to reflect
Additional Accounts and Removed Accounts, shall be marked as Schedule 1 to this
Agreement and is hereby incorporated into and made a part of this Agreement. The
Trustee shall be under no obligation whatsoever to verify the accuracy or
completeness of the information contained in Schedule 1 from time to time.
In the event that such sale and assignment is deemed to
constitute a pledge of security for a loan, it is the intent of this Agreement
that the Seller shall be deemed to have granted to the Trustee a first priority
perfected security interest in all of the Seller's right, title
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and interest to and under the Receivables and the Collateral Security and all
proceeds thereof, the Floorplan Agreements and the Receivables Contribution and
Sale Agreement, and that this Agreement shall constitute a security agreement
under applicable law.
Notwithstanding any other provision of this Agreement, no
asset shall be acquired by the Seller or the Trust or disposed of by the Seller
or the Trust for the primary purpose of recognizing gains or decreasing losses
due to market value changes.
SECTION 2.2. Acceptance by Trustee. (a) The Trustee hereby
acknowledges its acceptance, on behalf of the Trust, of all right, title and
interest previously held by the Seller to the property, now existing and
hereafter created, conveyed to the Trust pursuant to Section 2.1 and declares
that, subject to the terms and conditions hereof and of any Supplement, it shall
maintain such right, title and interest, upon the trust herein set forth, for
the benefit of the Certificateholders and the other Beneficiaries. The Trustee
further acknowledges that, prior to or simultaneously with the execution and
delivery of this Agreement, the Seller delivered to the Trustee the computer
file or microfiche or written list which the Seller represented as being the
computer file or list relating to the Initial Accounts described in the last
paragraph of Section 2.1.
(b) The Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated in this Agreement.
SECTION 2.3. Representations and Warranties of the Seller
Relating to the Seller and the Agreement. The Seller hereby represents and
warrants to the Trust and to the Trustee as of each Closing Date that:
(a) Organization and Good Standing. The Seller is a limited
partnership duly organized and validly existing and in good standing under the
law of the State of Delaware and has, in all material respects, full power,
authority and legal right to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted, and to
execute, deliver and perform its obligations under this Agreement and to execute
and deliver to the Trustee pursuant hereto the Certificates.
(b) Due Qualification. The Seller is duly qualified to do
business and, where necessary, is in good standing as a foreign partnership (or
is exempt from such requirement) and has obtained all necessary licenses and
approvals in each jurisdiction in which the conduct of its business requires
such qualification except where the failure to so qualify or obtain licenses or
approvals would not have a material adverse effect on its ability to perform its
obligations hereunder.
(c) Due Authorization. The execution and delivery of this
Agreement and the applicable Supplement and the Related Documents and the
execution and delivery to the Trustee of the Certificates by the Seller and the
consummation of the transactions provided for or contemplated by this Agreement
and the applicable Supplement and the Related
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Documents, have been duly authorized by the Seller by all necessary partnership
action on the part of the Seller.
(d) No Conflict. The execution and delivery of this Agreement,
the applicable Supplement, the Related Documents and the Certificates, the
performance of the transactions contemplated by this Agreement and the
applicable Supplement and the Related Documents and the fulfillment of the terms
hereof and thereof, shall not conflict with, result in any breach of any of the
material terms and provisions of, or constitute (with or without notice or lapse
of time or both) a material default under, any indenture, contract, agreement,
mortgage, deed of trust, or other instrument to which the Seller is a party or
by which it or its properties are bound.
(e) No Violation. The execution and delivery of this
Agreement, the applicable Supplement, the Related Documents and the
Certificates, the performance of the transactions contemplated by this Agreement
and the applicable Supplement and the Related Documents and the fulfillment of
the terms hereof and thereof applicable to the Seller, shall not conflict with
or violate any material Requirements of Law applicable to the Seller.
(f) No Proceedings. There are no proceedings or, to the best
knowledge of the Seller, investigations pending or threatened against the Seller
before any Governmental Authority (i) asserting the invalidity of this
Agreement, the applicable Supplement, any of the Related Documents or the
Certificates, (ii) seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this Agreement and the
applicable Supplement or the Related Documents, (iii) seeking any determination
or ruling that, in the reasonable judgment of the Seller, would materially and
adversely affect the performance by the Seller of its obligations under this
Agreement and the applicable Supplement or the Related Documents, (iv) seeking
any determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement and the applicable Supplement, the
Related Documents or the Certificates or (v) seeking to affect adversely the
income tax attributes of the Trust under the United States Federal or any State
income, single business or franchise tax systems.
(g) All Consents Required. All appraisals, authorizations,
consents, orders, approvals or other actions of any Person or of any
governmental body or official required in connection with the execution and
delivery of this Agreement, the applicable Supplement, the Related Documents and
the Certificates, the performance of the transactions contemplated by this
Agreement, the applicable Supplement and any of the Related Documents, and the
fulfillment of the terms hereof and thereof, have been obtained, except where
the failure to so obtain such item shall not have a material adverse effect on
its ability to render such performance.
(h) Enforceability. This Agreement and the applicable
Supplement and the Related Documents each constitutes a legal, valid and binding
obligation of the Seller enforceable against the Seller in accordance with its
terms, except as such enforceability may
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be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in equity).
(i) Record of Accounts. As of the Closing Date for the Series
issued in 1993, in the case of the Initial Accounts, as of the applicable
Addition Date, in the case of the Additional Accounts, and, as of the applicable
Removal Date, in the case of Removed Accounts, Schedule 1 to this Agreement is
an accurate and complete listing in all material respects of all the Accounts as
of the Cut-Off Date, the applicable Additional Cut-Off Date or the applicable
Removal Date, as the case may be, and the information contained therein with
respect to the identity of such Accounts and the Receivables existing thereunder
is true and correct in all material respects as of the Cut-Off Date, such
applicable Additional Cut-Off Date or such Removal Date, as the case may be.
(j) Valid Transfer. This Agreement or, in the case of
Additional Accounts, the related Assignment constitutes a valid sale, transfer
and assignment to the Trust of all right, title and interest of the Seller in
the Receivables and the Collateral Security and the proceeds thereof and all of
the Seller's rights, remedies, powers and privileges with respect to the
Receivables under the Receivables Contribution and Sale Agreement and the
related Financing Agreements and Floorplan Agreements, if any, and, upon the
filing of the financing statements described in Section 2.1 with the applicable
filing office and, in the case of the Receivables hereafter created and the
proceeds thereof, upon the creation thereof, the Trust shall have a perfected
ownership interest in such property, free of the Liens of any other Person,
except for Liens permitted under Section 2.6(a). Except as otherwise provided in
this Agreement, neither the Seller nor any Person claiming through or under the
Seller has any claim to or interest in the Trust Assets.
The representations and warranties set forth in this Section
2.3 shall survive the transfer and assignment of the Receivables to the Trust
and the issuance of the Certificates. Upon discovery by the Seller, the
Servicer, any Agent or any Responsible Officer of the Trustee of a breach of any
of the foregoing representations and warranties, the party discovering such
breach shall give prompt written notice to the other parties, any Agent and to
any Enhancement Providers.
In the event of any breach of any of the representations and
warranties set forth in this Section 2.3 having a material adverse effect on the
interests of the Investor Certificateholders, then either the Trustee or the
Holders of Investor Certificates evidencing not less than a majority in
aggregate unpaid principal amount of all outstanding Investor Certificates, by
notice then given in writing to the Seller (and to the Trustee, any Enhancement
Providers and the Servicer if given by the Investor Certificateholders), may
direct the Seller to purchase the Certificateholders' Interest within 60 days of
such notice (or within such longer period as may be specified in such notice),
and the Seller shall be obligated to make such purchase on a Distribution Date
occurring within such 60-day period on the
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terms and conditions set forth below; provided, however, that no such purchase
shall be required to be made if, by the end of such 60-day period (or such
longer period as may be specified), the representations and warranties set forth
in this Section 2.3 shall be true and correct in all material respects, and any
material adverse effect on the Certificateholders' Interest caused thereby shall
have been cured.
The Seller shall deposit in the Collection Account in
immediately available funds on the Business Day preceding such Distribution
Date, in payment for such purchase, an amount equal to the sum of the amounts
specified therefor with respect to each outstanding Series in the related
Supplement. Notwithstanding anything to the contrary in this Agreement, such
amounts shall be distributed to the Investor Certificateholders on such
Distribution Date in accordance with Article IV and the terms of each
Supplement. If the Trustee or the Investor Certificateholders give notice
directing the Seller to purchase the Certificateholders' Interest as provided
above, the obligation of the Seller to purchase the Certificateholders' Interest
pursuant to this Section 2.3 shall constitute the sole remedy respecting an
event of the type specified in the first sentence of this Section 2.3 available
to the Investor Certificateholders (or the Trustee on behalf of the Investor
Certificateholders).
SECTION 2.4. Representations and Warranties of the Seller
Relating to the Receivables. (a) Representations and Warranties. The Seller
hereby represents and warrants to the Trustee and the Trust that:
(i) Each Receivable and all other Trust Assets
existing on the Closing Date for the Series issued in 1993 or,
in the case of Additional Accounts, on the applicable Addition
Date, and on each Transfer Date, has been conveyed to the
Trust free and clear of any Lien.
(ii) With respect to each Receivable and all other
Trust Assets existing on the Closing Date for the Series
issued in 1993 or, in the case of Additional Accounts, on the
applicable Addition Date, and on each Transfer Date, all
consents, licenses, approvals or authorizations of or
registrations or declarations with any Governmental Authority
required to be obtained, effected or given by the Seller in
connection with the conveyance of such Receivable or other
Trust Assets to the Trust have been duly obtained, effected or
given and are in full force and effect.
(iii) On the Cut-Off Date, each Initial Account was
an Eligible Account. On the applicable Additional Cut-Off
Date, each applicable Additional Account is an Eligible
Account. On the date any Receivables are transferred to the
Trust, the related Account or Additional Account was or is an
Eligible Account or if it was or is an Ineligible Account on
such date, such Account is being removed from the Trust in
accordance with Section 2.8.
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(iv) On the Closing Date for the Series issued in
1993, in the case of the Initial Accounts, and, in the case of
the Additional Accounts, on the applicable Additional Cut-Off
Date, and on each Transfer Date, each Receivable conveyed to
the Trust on such date is an Eligible Receivable or, if such
Receivable is not an Eligible Receivable, the Account relating
to such Receivable is an Eligible Account in accordance with
Section 2.9.
(b) Notice of Breach. The representations and warranties set
forth in this Section 2.4 shall survive the transfer and assignment of the
Receivables to the Trust and the issuance of the Certificates. Upon discovery by
the Seller, the Servicer, any Agent or a Responsible Officer of the Trustee of a
breach of any of the representations and warranties set forth in this Section
2.4, the party discovering such breach shall give prompt written notice to the
other parties and to any Enhancement Providers.
(c) Reassignment. In the event any representation or warranty
under Section 2.4(a) is not true and correct as of the date specified therein
with respect to any Receivable or Account and such breach has a material adverse
effect on the Certificateholders' Interest in any such Receivable or Account,
then, within 30 days (or such longer period as may be agreed to by the Trustee)
of the earlier to occur of the discovery of any such event by the Seller or the
Servicer, or receipt by the Seller or the Servicer of written notice of any such
event given by the Trustee, any Agent or any Enhancement Provider, the Seller
shall accept a reassignment of such Receivable or, in the case of such an untrue
representation or warranty with respect to an Account, all Receivables in such
Account, on the Determination Date immediately succeeding the day of such
discovery or notice on the terms and conditions set forth in the next succeeding
paragraph; provided, however, that no such reassignment shall be required to be
made with respect to such Receivable if, by the end of such 30-day period (or
such longer period as may be agreed to by the Trustee), the breached
representation or warranty shall then be true and correct in all material
respects and any material adverse effect caused thereby shall have been cured.
The Seller shall accept a reassignment of each such Receivable
by directing the Servicer to deduct, subject to the next sentence, the principal
amount of such Receivables (exclusive of their Discount Portions) from the Pool
Balance on or prior to the end of the Collection Period in which such
reassignment obligation arises. If, following such deduction, the Pool Balance
would be less than the Required Participation Amount on the immediately
preceding Determination Date (after giving effect to the allocations,
distributions, withdrawals and deposits to be made on the Distribution Date
following such Determination Date), then not later than 12:00 noon New York City
time on the day on which such reassignment occurs, the Seller shall deposit in
the Collection Account in immediately available funds the amount (the "Transfer
Deposit Amount") by which the Pool Balance would be less than the Required
Participation Amount (up to the principal amount of such Receivables exclusive
of the Discount Portions thereof); provided that if the Transfer Deposit Amount
is not deposited as required by this sentence, then the amounts to be deducted
in respect of such Receivables shall only be deducted from the Pool Balance to
the extent that the Pool Balance is not reduced
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below the Required Participation Amount and the Receivables, the amounts to be
deducted in respect of which have not been so deducted, shall not be reassigned
to the Seller and shall remain part of the Trust. Upon reassignment of any such
Receivable, but only after payment by the Seller of the Transfer Deposit Amount,
if any, the Trust shall automatically and without further action be deemed to
sell, transfer, assign, set over and otherwise convey to the Seller, without
recourse, representation or warranty, all the right, title and interest of the
Trust in and to such Receivable, all Collateral Security and all moneys due or
to become due with respect thereto and all proceeds thereof. The Trustee shall
execute such documents and instruments of transfer or assignment as shall be
furnished by the Seller and shall take such other actions as shall reasonably be
requested by the Seller, to effect the conveyance of such Receivables pursuant
to this Section. The obligation of the Seller to accept a reassignment of any
such Receivable and to pay any related Transfer Deposit Amount shall constitute
the sole remedy respecting the event giving rise to such obligation available to
Certificateholders (or the Trustee on behalf of Certificateholders).
SECTION 2.5. Addition of Accounts. (a) If, on any Distribution
Date, (i) the Pool Balance (for purposes of this paragraph, determined by
excluding from the calculation thereof all Delayed Funding Receivables) as of
the close of business on the last day of the preceding Collection Period is less
than the Required Participation Amount as of such Distribution Date (after
giving effect to the allocations, distributions, withdrawals and deposits to be
made on such Distribution Date), or (ii) the result obtained by multiplying (x)
the Seller's Participation Amount (for purposes of this paragraph, determined by
using the Pool Balance as determined in accordance with this paragraph) as of
such Distribution Date (after giving effect to the allocations, distributions,
withdrawals and deposits to be made on such Distribution Date), by (y) the
percentage equivalent of the portion of the Seller's Interest represented by the
Deutsche FRLP Certificate, is less than 5% of the Pool Balance on such last day,
then the Seller shall, within 10 Business Days following such Distribution Date,
designate additional Eligible Accounts to be included as Accounts and transfer
to the Trust the Receivables (and the related Collateral Security) of those
Additional Accounts in a sufficient amount such that after giving effect to such
designation and transfer: (i) the Pool Balance (determined in accordance with
this paragraph) as of the close of business on the Addition Date is at least
equal to such Required Participation Amount; and (ii) the result obtained by
multiplying (x) such Seller's Participation Amount (determined in accordance
with this paragraph) by (y) the percentage equivalent of the portion of the
Seller's Interest represented by the Deutsche FRLP Certificate, is at least
equal to 5% of such Pool Balance, as the case may be. The Seller shall satisfy
the conditions specified in Section 2.5(d) in designating such Additional
Accounts and conveying the related Receivables to the Trust. The failure of the
Seller to transfer Receivables to the Trust as provided in this paragraph solely
as a result of the unavailability of a sufficient amount of Eligible Receivables
shall not constitute a breach of this Agreement; provided, however, that any
such failure shall nevertheless result in the occurrence of an Early
Amortization Event described in Section 9.1(a).
(b) The Seller may from time to time, at its sole discretion,
subject to the conditions specified in paragraph (d) below, voluntarily
designate additional Eligible Accounts
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to be included as Accounts and transfer to the Trust the Receivables (and the
related Collateral Security) of such Additional Accounts.
(c) Receivables and Collateral Security from such Additional
Accounts shall be sold to the Trust effective on a date (each an "Addition
Date") specified in a written notice provided by the Seller (or the Servicer on
its behalf) to the Trustee, the Rating Agencies, any Agent and any Enhancement
Providers specifying the Additional Cut-Off Date and the Addition Date for such
Additional Accounts (each an "Addition Notice") on or before the fifth Business
Day but not more than the 30th day prior to the related Addition Date or, if the
Automatic Addition Condition is satisfied, on the Determination Date following
the Collection Period in which such Addition Dates occur (the "Notice Date"). An
Addition Notice may relate to one or more Accounts added on one or more Addition
Dates.
(d) The Seller shall be permitted to convey to the Trust the
Receivables and all Collateral Security related thereto in any Additional
Accounts designated by the Seller as such pursuant to Section 2.5(a) or (b) only
upon satisfaction of each of the following conditions on or prior to the related
Addition Date (except for the condition in clause (vii), if applicable, which
shall be satisfied on or before the tenth Business Day after the applicable
Notice Date):
(i) the Seller shall have provided the Trustee, any
Agent, the Rating Agencies and any Enhancement Providers with
a timely Addition Notice;
(ii) such Additional Accounts shall all be Eligible
Accounts;
(iii) the Seller shall have delivered to the Trustee
a duly executed written assignment (including an acceptance by
the Trustee) in substantially the form of Exhibit B (the
"Assignment") covering the Receivables in the Accounts
specified in the Addition Notice and the computer file or
microfiche or written list required to be delivered pursuant
to Section 2.1;
(iv) the Seller shall, to the extent required by
Section 4.3, have deposited in the Collection Account all
Collections with respect to such Additional Accounts since the
Additional Cut-Off Date;
(v) (A) no selection procedures reasonably believed
by the Seller to be adverse to the interests of the
Beneficiaries shall have been used in selecting such
Additional Accounts; (B) the list of Additional Accounts
delivered pursuant to clause (iii) above shall be true and
correct in all material respects as of the Additional Cut-Off
Date and (C) as of each of the Notice Date and the Addition
Date, neither DFS nor the Seller shall have been insolvent nor
shall any of them have been made insolvent by such transfer
nor shall any of them be aware of any pending insolvency;
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(vi) if the Automatic Addition Condition is not
satisfied with respect to such addition, the Rating Agency
Condition shall have been satisfied with respect to such
addition, provided that the Rating Agency Condition must be
satisfied for any Additional Account designated pursuant to
Section 2.5(b) if such Additional Account contains Asset Based
Receivables (or, if such Additional Account contains A/R
Receivables if a Participation Interest has been created in
such A/R Receivables);
(vii) If (A) one or more of the Additional Accounts
specified in such Addition Notice shall contain Receivables
secured by a security interest in a type of Product that has
not been previously financed in the Floorplan Business or (B)
one or more of the Additional Accounts is supported by a
Floorplan Agreement with a Manufacturer that, as of the
related Addition Date, is not an Existing Manufacturer, then,
whether or not the Automatic Condition is satisfied, the
Rating Agency Condition shall have been satisfied in respect
of the addition of each Additional Account specified in
clauses (A) and (B) on or prior to the related Addition Date;
(viii) the addition of the Receivables arising in
such Additional Accounts shall not result in the occurrence
of an Early Amortization Event;
(ix) the Seller shall have delivered to the Trustee
and any Enhancement Providers a certificate of a Vice
President or more senior officer confirming (A) the items set
forth in paragraphs (ii) through (vii) above and (B) that the
Seller reasonably believes that the addition of the
Receivables arising in such Additional Accounts shall not
result in the occurrence of an Early Amortization Event; and
(x) the Seller shall have delivered to the Trustee
and any Enhancement Providers (A) an Opinion of Counsel with
respect to the Receivables in the Additional Accounts added
since the last delivery of such Opinion substantially in the
form of Exhibit G-2 and (B) except in the case of an addition
required by Section 2.5(a), a Tax Opinion with respect to such
addition; provided that if such Opinion of Counsel and Tax
Opinion are required to be delivered, they shall be from
outside counsel no less frequently than quarterly; provided
further that, unless the Rating Agency Condition is satisfied,
such Opinion of Counsel and Tax Opinion shall be from outside
counsel if the rating of the unsecured long-term debt of the
parent of DFS or, if DFS does not have a parent, DFS is below
investment grade.
(e) The Seller hereby represents and warrants as of the
applicable Addition Date as to the matters set forth in Section 2.5(d)(v). Upon
discovery by the Seller, the Servicer, any Agent, a Responsible Officer of the
Trustee or any Enhancement Providers of a breach of the foregoing
representations and warranties, the party discovering the breach shall
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give prompt written notice to the other parties, to any Agent and to any
Enhancement Providers.
(f) Notwithstanding anything in this Section 2.5 to the
contrary, the additions of Additional Accounts pursuant to Section 2.5(b) on or
prior to the Closing Date for Series 1994-1 need not satisfy clause (i), (vi),
(vii) or (x) of Section 2.5(d).
SECTION 2.6. Covenants of the Seller. The Seller hereby
covenants that:
(a) No Liens. Except for the conveyances hereunder or as
provided in Section 6.3(c), the Seller shall not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to exist
any Lien on, any Receivable or any other Trust Asset, whether now existing or
hereafter created, or any interest therein, Seller's Interest or the Seller's
Certificates and the Seller shall defend the right, title and interest of the
Trust in, to and under the Receivables and the other Trust Assets, whether now
existing or hereafter created, and such rights, remedies, powers and privileges,
against all claims of third parties claiming through or under the Seller.
(b) Account Allocations. In the event that the Seller is
unable for any reason to transfer Receivables to the Trust, then the Seller
agrees that it shall allocate, after the occurrence of such event, payments on
each Account with respect to the principal balance of such Account first to the
oldest principal balance of such Account and to have such payments applied as
Collections in accordance with the terms of this Agreement. The parties hereto
agree that Non-Principal Receivables, whenever created, accrued in respect of
Principal Receivables which have been conveyed to the Trust shall continue to be
a part of the Trust notwithstanding any cessation of the transfer of additional
Principal Receivables to the Trust and Collections with respect thereto shall
continue to be allocated and paid in accordance with the terms of this
Agreement.
(c) Delivery of Collections. In the event that the Seller, DFS
or any Affiliate thereof receives payments in respect of Receivables, the Seller
and DFS agree to pay or cause to be paid to the Servicer or any Successor
Servicer all payments received thereby in respect of the Receivables as soon as
practicable after receipt thereof, but in no event later than two Business Days
after the receipt by the Seller, DFS or any Affiliate thereof.
(d) Notice of Liens. The Seller shall notify the Trustee
promptly after becoming aware of any Lien on any Receivable other than the
conveyances hereunder and Participation Interests.
(e) Compliance with Law. The Seller hereby agrees to comply
in all material respects with all Requirements of Law applicable to the Seller.
(f) Activities of the Seller. The Seller shall not engage in
any business or activity of any kind or enter into any transaction other than
(i) the businesses, activities and
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transactions contemplated and authorized by this Agreement or the Related
Documents, (ii) acquiring, selling, financing, holding, assigning, pledging and
otherwise dealing with receivables arising out of the financing of commercial
and consumer products, accounts receivable and other assets and related
activities and transactions or out of unsecured loans, (iii) transferring such
receivables to trusts pursuant to a pooling and servicing agreement or similar
agreement or arrangement, (iv) authorizing, selling and delivering any class of
certificates or other securities of any such trust, (v) issuing, selling,
authorizing and delivering one or more series and classes of bonds, notes or
other evidences of indebtedness secured or collateralized by one or more pools
of receivables or by certificates of any class issued by one or more trusts
(collectively, the "Notes"), provided that the Seller shall have no liability
under any Notes except to the extent of the one or more pools of receivables or
the certificates securing or collateralizing such Notes, (vi) holding and
enjoying all of the rights and privileges of any certificates issued by the
trusts to the Seller under the related agreements and holding and enjoying all
of the rights and privileges of any class of any series of Notes, including any
class of Notes or certificates which may be subordinate to any other class of
Notes or certificates, respectively, (vii) performing its obligations under the
agreements and any indenture or other agreement (each, an "Indenture") pursuant
to which any Notes are issued, (viii) engaging in any activity and exercising
any powers permitted to limited partnerships under the laws of the State of
Delaware that are related or incidental to the foregoing and necessary,
convenient or advisable to accomplish the foregoing, and (ix) any other activity
in connection with which the Rating Agency Condition has been satisfied (such
businesses, activities and transactions, collectively, "Permitted
Transactions").
(g) Indebtedness. The Seller shall not create, incur or assume
any indebtedness or issue any securities or sell or transfer any receivables to
a trust or other Person which issues securities in respect of any such
receivables, unless (i) any such indebtedness or securities have no recourse to
any assets of the Seller other than the specified assets to which such
indebtedness or securities relate and (ii) the Rating Agency Condition shall
have been satisfied in connection therewith prior to the incurrence or issuance
thereof.
(h) Guarantees. The Seller shall not become or remain liable,
directly or contingently, in connection with any indebtedness or other liability
of any other Person, whether by guarantee, endorsement (other than endorsements
of negotiable instruments for deposit or collection in the ordinary course of
business), agreement to purchase or purchase, agreement to supply or advance
funds, or otherwise, except in connection with Permitted Transactions and unless
the Rating Agency Condition shall have been satisfied with respect thereto.
(i) Investments. The Seller shall not make or suffer to exist
any loans or advances to, or extend any credit to, or make any investments (by
way of transfer of property, contributions to capital, purchase of stock or
securities or evidences of indebtedness, acquisition of the business or assets,
or otherwise) in, any Affiliate, unless prior thereto the Rating Agency
Condition shall have been satisfied with respect thereto; provided, however,
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that the Seller shall not be prohibited under this Section 2.6(i) from making
distributions to its partners.
(j) Stock; Merger. The Seller shall not (i) sell any general
partner's interests in the Seller to any Person (other than Deutsche FRI), or
enter into any transaction of merger or consolidation unless (A) the surviving
Person of such merger or consolidation assumes all of the Seller's obligations
under this Agreement, (B) the Seller shall have given the Rating Agencies and
the Trustee at least 10 days' prior notice and the Rating Agency Condition shall
have been satisfied with respect to such transaction and (C) such merger or
consolidation does not conflict with any provisions of the partnership agreement
of the Seller, or (ii) terminate, liquidate or dissolve itself (or suffer any
termination, liquidation or dissolution), or (iii) acquire or be acquired by any
Person, or (iv) otherwise make (or suffer) any material change in the
organization of or method of conducting its business.
(k) Agreements. The Seller shall not become a party to, or
permit any of its properties to be bound by, any indenture, mortgage,
instrument, contract, agreement, lease or other undertaking, except this
Agreement, the Related Documents and any document relating to a Permitted
Transaction, or amend or modify its partnership agreement or cancel, terminate,
amend, supplement, modify or waive any of the provisions of the Receivables
Contribution and Sale Agreement or any of the other Related Documents or
request, consent or agree to or suffer to exist or permit any such cancellation,
termination, amendment, supplement, modification or waiver unless, in any such
case, the Rating Agency Condition shall have been satisfied with respect
thereto.
(l) Separate Existence. The Seller shall take all reasonable
steps to make it apparent to third Persons that the Seller is an entity with
assets and liabilities distinct from those of DFS and any other Affiliate and
that the Seller is not a division of DFS or any other Person.
SECTION 2.7. Removal of Eligible Accounts. (a) On each
Determination Date the Seller shall have the right to remove Eligible Accounts
in the manner prescribed in Section 2.7(b). The termination of an Account by a
Dealer upon such Dealer's payment in full of the Receivables in the related
Account shall not be a removal of such Account for purposes of this Section 2.7.
(b) To remove Eligible Accounts, the Seller (or the Servicer
on its behalf) shall take the following actions and make the following
determinations:
(i) not less than five Business Days prior to the
Removal Date, furnish to the Trustee, any Agent, any
Enhancement Providers and the Rating Agencies a Removal Notice
specifying the Removal Date, which shall be a Determination
Date (which may be a Determination Date on which such Removal
Notice is given) on which removal of one or more Accounts (the
"Removed Accounts") shall occur;
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(ii) from and after such Removal Date, cease to
transfer to the Trust any and all Receivables arising in such
Removed Accounts;
(iii) represent and warrant that the removal of any
such Eligible Account on any Removal Date shall not, in the
reasonable belief of the Seller, cause an Early Amortization
Event to occur or cause the Pool Balance to be less than the
Required Participation Amount;
(iv) represent and warrant that no selection
procedures reasonably believed by the Seller to be adverse to
the interests of the Beneficiaries were utilized in selecting
the Accounts to be removed;
(v) cause the Rating Agency Condition to be
satisfied with respect to such removal;
(vi) deliver to the Trustee, each Rating Agency, any
Agent and any Enhancement Providers a Tax Opinion, dated the
Removal Date, with respect to such removal;
(vii) on or before the related Removal Date, deliver
to the Trustee, any Agent and any Enhancement Providers an
Officers' Certificate confirming the items set forth in
clauses (iii) through (v) above and confirming that the Seller
reasonably believes that the removal of the Removed Accounts
shall not result in the occurrence of an Early Amortization
Event; the Trustee may conclusively rely on such Officers'
Certificate and shall have no duty to make inquiries with
regard to the matters set forth therein and shall incur no
liability in so relying; and
(viii) on or before the fifth Business Day after the
Removal Date, furnish to the Trustee a computer file,
microfiche list or other list of the Removed Accounts that
were removed on the Removal Date, specifying for each Removed
Account as of the date of the Removal Notice its number, the
aggregate amount outstanding in such Removed Account and the
aggregate amount of Principal Receivables therein and
represent that such computer file, microfiche list or other
list of the Removed Accounts is true and complete in all
material respects and such Removed Accounts shall be deemed to
have been removed from the list of Accounts maintained by the
Trustee.
No Accounts shall be so removed if such removal shall result in a reduction or
withdrawal of the rating of any outstanding Series or Class by the applicable
Rating Agency.
(c) Subject to Section 2.7(b), on the Removal Date with
respect to any such Removed Account, such Removed Account shall be deemed
removed from the Trust for all purposes. After the Removal Date and upon the
written request of the Servicer, the Trustee
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shall deliver to the Seller a reassignment in substantially the form of Exhibit
H (the "Reassignment").
SECTION 2.8. Removal of Ineligible Accounts. (a) The date on
which the Seller or the Servicer becomes aware that an Account is an Ineligible
Account shall be the "Removal Commencement Date" with respect to such Account.
(b) With respect to each Account that becomes an Ineligible
Account, the Seller (or the Servicer on its behalf) shall take the following
actions and make the following determinations:
(i) promptly following the related Removal
Commencement Date, furnish to the Trustee, any Agent and any
Enhancement Providers a Removal Notice specifying the Removal
Commencement Date and the Ineligible Accounts to be removed
and the related Removal Date, which shall be a date occurring
on or before the next Determination Date (the "Designated
Accounts");
(ii) determine on the Removal Commencement Date with
respect to such Designated Accounts the aggregate balance of
Principal Receivables in respect of each Designated Account
(the "Designated Balance") and amend Schedule 1 by delivering
to the Trustee a computer file or microfiche or written list
containing a true and complete list of the Designated Accounts
specifying for each such Designated Account, as of the Removal
Commencement Date, its account number, the aggregate amount of
Receivables outstanding in such Designated Account and the
Designated Balance;
(iii) from and after such Removal Commencement Date,
cease to transfer to the Trust any and all Receivables arising
in such Designated Accounts;
(iv) if such Account was an Ineligible Account at the
time it was originally designated as an Account, from and
after such Removal Commencement Date, allocate Collections of
Principal Receivables in respect of each Designated Account,
first to the oldest outstanding principal balance of such
Designated Account, until the Removal Commencement Date with
respect thereto; and
(v) if such Account was an Ineligible Account at the
time it was originally designated as an Account, on each
Business Day from and after such Removal Commencement Date to
and until the related Removal Date, allocate (A) to the Trust
(to be further allocated pursuant to the terms of this
Agreement), Defaulted Receivables and Collections of
Non-Principal Receivables in respect of each Designated
Account, based on the ratio of the
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aggregate amount of Principal Receivables in all Designated
Accounts owned by the Trust on such Business Day to the total
aggregate amount of Principal Receivables in all such
Designated Accounts on such Business Day and (B) to the
Seller, the remainder of the Defaulted Receivables and
Collections of Non-Principal Receivables in all such
Designated Accounts on such Business Day.
(c) On the Removal Commencement Date with respect to any such
Ineligible Account, the Seller shall cease to allocate any Collections therefrom
in accordance herewith and such Account shall be deemed a Removed Account and
shall be deemed removed from the Trust for all purposes. After the Removal
Commencement Date and upon the written request of the Servicer, the Trustee
shall deliver to the Seller a Reassignment.
(d) Notwithstanding any other provision of this Agreement,
unless an Account was an Ineligible Account at the time it was originally
designated as an Account, the Reassignment shall remove only such Account and
shall not reassign any Receivable existing in such Account.
SECTION 2.9. Sale of Ineligible Receivables. The Seller shall
sell to the Trust on each Transfer Date any and all Receivables arising in any
Eligible Accounts that are Ineligible Receivables, provided that on the Cut-Off
Date or, in the case of Receivables arising in Additional Accounts, on the
related Additional Cut-Off Date, and on the applicable Transfer Date, the
Account in which such Receivables arise is an Eligible Account.
SECTION 2.10. Removal of Receivables in Connection with
Overconcentration Amount. (a) If on any Determination Date the Overconcentration
Amount as of the end of the preceding Collection Period exceeds zero, the Seller
may attempt to reduce the Overconcentration Amount to zero by removing
Receivables from the Trust. However, in attempting to reduce the
Overconcentration Amount to zero, the Seller shall not be permitted to remove a
Receivable (a) that has been classified by the Servicer as SAU or NSF for more
than sixty days, (b) that has been charged off, (c) as to which the related
Dealer is in bankruptcy or insolvency proceedings, or (d) if the Servicer
believes that the Receivable will be charged off in the foreseeable future or
that the related Dealer will be in bankruptcy or insolvency proceedings in the
foreseeable future.
(b) In order to remove Receivables in accordance with Section
2.10(a), the Seller shall send a notice to the Trustee and the Rating Agencies
identifying the proposed removal date and the Receivables to be removed,
together with a certification by the Seller and the Servicer to the effect that
such removal complies with the terms of this Section 2.10. On the proposed
removal date, the Seller shall remit to the Trustee, for deposit in the
Collection Account, an amount equal to the outstanding principal balances of
such Receivables.
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(c) The Trustee is hereby authorized to enter into any
assignment documentation reasonably requested and prepared by the Seller in
connection with this Section 2.10.
ARTICLE III
Administration and Servicing
of Receivables
SECTION 3.1. Acceptance of Appointment and Other Matters
Relating to the Servicer. (a) The Servicer shall service and administer the
Receivables, shall collect payments due under the Receivables and shall
charge-off as uncollectible Receivables, all in accordance with its customary
and usual servicing procedures in effect from time to time for servicing
wholesale receivables comparable to the Receivables which the Servicer services
for its own account and in accordance with the Financing Guidelines; provided,
however, that (i) the Servicer shall change its policy for charging off
wholesale receivables as totally uncollectible only upon satisfaction of the
Rating Agency Condition and (ii) in respect of a Floorplan Agreement, the
obligation of the related Manufacturer to repurchase repossessed Products may be
modified and subject to various terms, but shall not be deleted; and provided,
further, that if a Successor Servicer shall succeed to the duties of the
Servicer, the Successor Servicer shall service the Receivables in accordance
with standards that would be employed by a prudent lender in servicing
comparable receivables for its own account. The Servicer shall have full power
and authority, acting alone or through any party properly designated by it
hereunder, to do any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing and subject to Section 10.1, the Servicer is hereby
authorized and empowered, unless such power and authority is revoked by the
Trustee on account of the occurrence of a Servicer Default pursuant to Section
10.1, (i) to instruct the Trustee to make withdrawals and payments from the
Collection Account and any Series Account as set forth in this Agreement or any
Supplement, (ii) to instruct the Trustee to take any action required or
permitted under any Enhancement, (iii) to execute and deliver, on behalf of the
Trust for the benefit of the Certificateholders and the other Beneficiaries, any
and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments, with respect to the
Receivables and, after the delinquency of any Receivable and to the extent
permitted under and in compliance with applicable Requirements of Law, to
commence enforcement proceedings (which, to the extent permitted by applicable
law, may be in the name of the Servicer) with respect to such Receivables, (iv)
to make any filings, reports, notices, applications, registrations with, and
seek any consents or authorizations from, the Securities and Exchange Commission
and any State securities authority on behalf of the Trust as may be necessary or
advisable to comply with any Federal or State securities laws or reporting
requirement, and (v) to delegate certain of its servicing, collection,
enforcement and administrative duties hereunder with respect to the Accounts and
the Receivables to any Person who agrees to conduct such duties in accordance
with the Financing Guidelines (or such other standards required hereunder in the
case of a Successor Servicer) and this
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Agreement; provided, however, that (a) the Servicer shall notify the Trustee,
the Rating Agencies, any Agent and any Enhancement Providers in writing of any
such delegation of its duties which is not in the ordinary course of its
business, (b) no delegation shall relieve the Servicer of its liability and
responsibility with respect to such duties and (c) the Rating Agency Condition
shall have been satisfied with respect to any delegation whether that delegation
is in the ordinary course of business or otherwise. The Trustee shall execute
and deliver to the Servicer any powers of attorney and other documents prepared
by the Servicer and certified by a Servicing Officer as being reasonably
necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder.
(b) In the event that the Seller is unable or is not permitted
for any reason to transfer Receivables to the Trust in accordance with the
provisions of this Agreement (including by reason of the application of the
provisions of Section 2.1 or Section 9.2 or any court of competent jurisdiction
ordering that the Seller not transfer any additional Receivables to the Trust)
then, in any such event, the Servicer agrees (i) to give prompt written notice
thereof to the Trustee, any Enhancement Providers, any Agent and each Rating
Agency and (ii) that it shall in any such event allocate, after the occurrence
of such event, Principal Collections with respect to each Account first to the
oldest principal balance of Receivables in such Account, and to have such
payments applied as Collections in accordance with Section 4.2. The parties
hereto agree that Non-Principal Collections with respect to Receivables that are
in the Trust shall continue to be allocated and paid in accordance with the
terms of this Agreement.
(c) The Servicer shall not, and any Successor Servicer shall
not be obligated to, use separate servicing procedures, offices, employees or
accounts for servicing the Receivables from the procedures, offices, employees
and accounts used by the Servicer or such Successor Servicer in connection with
servicing other wholesale receivables.
(d) The Servicer shall comply with and perform its servicing
obligations with respect to the Financing Agreements relating to the Accounts
and the Financing Guidelines (except as otherwise provided in Section 3.1(a)),
except insofar as any failure to so comply or perform would not materially and
adversely affect the rights of the Trust or any of the Beneficiaries. Subject to
compliance with all Requirements of Law and subject to Section 3.1(a), the
Servicer (or DFS) may change the terms and provisions of the Wholesale Financing
Agreements, the Floorplan Agreements, the Accounts Receivable Financing
Agreements, the Asset Based Lending Financing Agreements or the Financing
Guidelines in any respect (including the calculation of the amount or the timing
of charge-offs and the rate of the finance charge assessed thereon), if, in the
reasonable judgment of the Servicer, no Early Amortization Event shall occur as
a result of such change.
SECTION 3.2. Servicing Compensation. As full compensation for
its servicing activities hereunder and reimbursement for its expenses as set
forth in the immediately following paragraph, the Servicer shall be entitled to
receive the Servicing Fee on each Distribution Date on or prior to the Trust
Termination Date payable in arrears. The
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"Servicing Fee" shall be the aggregate of the Monthly Servicing Fees specified
in the Supplements. The Servicing Fee shall be payable to the Servicer solely to
the extent amounts are available for payment in accordance with the terms of the
Supplements.
The Servicer's expenses include the amounts due to the Trustee
pursuant to Section 11.5 and the reasonable fees and disbursements of
independent accountants and all other expenses (including costs of collection
and legal fees) incurred by the Servicer in connection with its activities
hereunder, and including all other fees and expenses of the Trust not expressly
stated herein to be for the account of or payable by the Certificateholders, the
Seller or the Trust; provided that the Servicer shall not be responsible for
paying federal, state or local income or franchise taxes, if any, of the Seller,
the Trust or any Certificateholder. The Servicer shall be required to pay such
expenses for its own account, and shall not be entitled to any payment therefor
other than the Servicing Fee. The Servicer shall be solely responsible for all
fees and expenses incurred by or on behalf of the Servicer in connection
herewith and the Servicer shall not be entitled to any fee or other payment
from, or claim on, any of the Trust Assets (other than the Servicing Fee).
SECTION 3.3. Representations, Warranties and Covenants of the
Servicer. (a) DFS, as Servicer, hereby makes, and any Successor Servicer by its
appointment hereunder shall make, on each Closing Date (and on the date of any
such appointment) the following representations, warranties and covenants:
(i) Organization and Good Standing. Such party is a
corporation duly organized, validly existing and in good
standing under the applicable laws of the state of its
incorporation and has, in all material respects, full
corporate power, authority and legal rights to own its
properties and conduct its wholesale receivable servicing
business as such properties are presently owned and as such
business is presently conducted, and to execute, deliver and
perform its obligations under this Agreement and the
applicable Supplement.
(ii) Due Qualification. Such party is duly qualified
to do business and is in good standing as a foreign
corporation (or is exempt from such requirements) and has
obtained all necessary licenses and approvals in each
jurisdiction in which the servicing of the Receivables as
required by this Agreement requires such qualification except
where the failure to so qualify or obtain licenses or
approvals would not have a material adverse effect on its
ability to perform its obligations hereunder and under each
Supplement.
(iii) Due Authorization. The execution, delivery, and
performance of this Agreement and the applicable Supplement
has been duly authorized by such party by all necessary
corporate action on the part thereof and are within its
corporate powers.
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(iv) Binding Obligation. This Agreement and each
applicable Supplement constitutes a legal, valid and binding
obligation of such party, enforceable in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereinafter in effect, affecting the
enforcement of creditors' rights and except as such
enforceability may be limited by general principles of equity
(whether considered in a proceeding at law or in equity).
(v) No Violation. The execution and delivery of this
Agreement and the applicable Supplement by such party, the
performance of the transactions contemplated by this agreement
and the applicable Supplement and the fulfillment of the terms
hereof and thereof applicable to such party shall not conflict
with or violate any Requirements of Law applicable to such
party or conflict with, violate, result in any breach of any
of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a material default
under any indenture, contract, agreement, mortgage, deed of
trust, or other instrument to which such party is a party or
by which it is bound.
(vi) No Proceedings. There are no proceedings or, to
the best knowledge of such party, investigations, pending or
threatened against such party before any court, regulatory
body, administrative agency or other tribunal or governmental
instrumentality seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions
contemplated by this Agreement and the applicable Supplement,
seeking any determination or ruling that, in the reasonable
judgment of such party, would materially and adversely affect
the performance by such party of its obligations under this
Agreement and the applicable Supplement, or seeking any
determination or ruling that would materially and adversely
affect the validity or enforceability of this Agreement and
the applicable Supplement.
(vii) No Consents. No authorizations, consents,
orders or approvals of or notices to or registrations or
declarations or filings with any Governmental Authority are
required to be obtained, effected or given by the Servicer in
connection with the due execution and delivery of this
Agreement and each Supplement by the Servicer and the
performance of the transactions contemplated by this Agreement
and each Supplement by the Servicer, except for those that
have been duly obtained, effected or given and are in full
force and effect.
(viii) Compliance with Requirements of Law. Such
party shall duly satisfy all obligations on its part to be
fulfilled under or in connection with the Receivables and the
Accounts, shall maintain in effect all qualifications required
under Requirements of Law in order to service properly the
Receivables and the Accounts and shall comply in all material
respects with all Requirements of
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Law in connection with servicing the Receivables and the
Accounts the failure to comply with which would have a
material adverse effect on the interests of Beneficiaries.
(ix) No Rescission or Cancellation. Such party shall
not permit any rescission or cancellation of a Receivable
except as ordered by a court of competent jurisdiction or
other Governmental Authority; provided that this clause (ix)
shall not prohibit a negotiated work-out of defaulted
Receivables that enhances the Trust's recovery in respect of
such Receivables.
(x) Protection of Beneficiaries Rights. Such party
shall take no action, nor omit to take any action, which would
impair the rights of Beneficiaries in the Receivables nor
shall it reschedule, revise or defer payments due on any
Receivable except in accordance with the Financing Guidelines
(or other servicing standards required hereunder in the case
of a Successor Servicer).
(xi) Negative Pledge. Except for the conveyance
hereunder to the Trustee and the conveyances of Participation
Interests permitted by the Receivables Contribution and Sale
Agreement, the Servicer shall not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume
or suffer to exist any Lien on, any Receivable sold and
assigned to the Trust, whether now existing or hereafter
created, or any interest therein, and the Servicer shall
defend the rights, title and interest of the Trust in, to and
under any Receivable sold and assigned to the Trust, whether
now existing or hereafter created, against all claims of third
parties claiming through or under the Seller or the Servicer.
(b) Notice of Breach. The representations and warranties set
forth in this Section 3.3 shall survive the transfer and assignment of the
Receivables to the Trust and the issuance of the Certificates. Upon discovery by
the Seller, the Servicer or a Responsible Officer of the Trustee of a breach of
any of the representations and warranties or covenants set forth in this Section
3.3, the party discovering such breach shall give prompt written notice to the
other parties and to any Enhancement Providers.
(c) Purchase. In the event any covenant under Section
3.3(a)(viii), (ix) or (x) has not been complied with in any material respect
with respect to any Receivable or Account and such non-compliance has a material
adverse effect on the Certificateholders' Interest in such Receivable or
Account, then, within 30 days (or such longer period as may be agreed to by the
Trustee) of the earlier to occur of the discovery of any such event by the
Seller or the Servicer, or receipt by the Seller or the Servicer of written
notice of any such event given by the Trustee or any Enhancement Providers, the
Servicer shall purchase such Receivable or, in the case of non-compliance with
respect to an Account, all Receivables in such Account, on the Determination
Date immediately succeeding the expiration of such 30-day period (or such longer
period as may be agreed to by the Trustee) on the terms and
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conditions set forth in the next succeeding paragraph; provided, however, that
no such purchase shall be required to be made with respect to such Receivable
if, by the end of such 30-day period (or such longer period as may be agreed to
by the Trustee) the non-compliance shall have been remedied in all material
respects and any material adverse effect caused thereby shall have been cured.
The Servicer shall effect such purchase by depositing in the Collection Account
in immediately available funds an amount equal to the Purchase Price of such
Receivable. Any such deposit of such Purchase Price into the Collection Account
shall be considered a Transfer Deposit Amount and shall be applied in accordance
with the terms of this Agreement.
Upon each such payment of such Purchase Price, the Trust shall
automatically and without further action be deemed to sell, transfer, assign,
set over and otherwise convey to the Servicer, without recourse, representation
or warranty (other than the representation that the Trustee has not sold,
transferred or assigned an interest in the Receivables), all right, title and
interest of the Trust in and to such Receivables, all monies due or to become
due with respect thereto and all proceeds thereof and the related Collateral
Security. The Trustee shall execute such documents and instruments of transfer
or assignment and take such other actions as shall be reasonably requested and
prepared by the Servicer to effect the conveyance of any such Receivables
pursuant to this Section. The obligation of the Servicer to purchase such
Receivables, and to make the deposits required to be made to the Collection
Account as provided in the preceding paragraph, shall constitute the sole remedy
respecting the event giving rise to such obligation available to
Certificateholders or the Trustee on behalf of Certificateholders.
SECTION 3.4. Reports and Records for the Trustee. On or before
each Distribution Date, with respect to each outstanding Series, the Servicer
shall deliver to any Enhancement Providers, the Rating Agencies, the Trustee and
each Investor Certificateholder a Distribution Date Statement for such
Distribution Date substantially in the form specified in the related Supplement.
SECTION 3.5. Annual Servicer's Certificate and Assertion. The
Servicer shall deliver to the Rating Agencies, the Trustee, any Agent and any
Enhancement Providers on or before March 31 of each calendar year,
(a) an Officer's Certificate substantially in the form of
Exhibit C stating that (i) a review of the activities of the Servicer during the
preceding calendar year (or part of the preceding calendar year in the case of
the first Officers' Certificate) and of its performance under this Agreement was
made under the supervision of the officer signing such certificate and (ii) to
the best of such officer's knowledge, based on such review, the Servicer has
performed in all material respects its obligations under this Agreement and each
Supplement throughout such year (or part of such year, as applicable), or, if
there has been a material default in the performance of any such obligation,
specifying each such default known to such officer and the nature and status
thereof, and
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(b) an assertion (made in accordance with generally accepted
auditing standards) addressed to a firm of nationally recognized independent
certified public accountants, who may also render other services to the Servicer
or to the Seller, stating that (i) the Servicer is responsible for compliance
with the servicing requirements in Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.9
of this Agreement and Article IV of this Agreement, and the applicable
provisions of the Supplements for the outstanding Series, and (ii) based upon
the evaluation of the Servicer's compliance with the aforementioned sections of
this Agreement and the applicable provisions of the Supplements for the
outstanding Series throughout such year, the Servicer believes that it was in
compliance with the aforementioned sections of this Agreement and the applicable
provisions of the Supplements for the outstanding Series in all material
respects, or, if there has been a material default in the performance of any
such obligations, specifying such default known to the Servicer and the nature
and the status thereof.
SECTION 3.6. Annual Independent Public Accountants'
Attestation and Agreed Upon Procedures Report. (a) The Servicer shall cause a
firm of nationally recognized independent certified public accountants, who may
also render other services to the Servicer or to the Seller, to deliver to the
Trustee, the Rating Agencies, each Agent and each Enhancement Provider on or
before March 31 of each year, a report addressed to the Servicer and the
Trustee, to the effect that they have examined the assertion prepared by the
Servicer on the Servicer's compliance with the servicing requirements in
Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.9 of this Agreement and Article IV
of this Agreement, and the applicable provisions of the Supplements for the
outstanding Series, and that based upon examination of such assertion, the
Servicer was in compliance with this Agreement and the applicable provisions of
the Supplements for the outstanding Series throughout such year (or part of such
year, as applicable), in all material respects, or, if there has been a material
default in the performance of any such obligations, specifying such default of
the Servicer and the nature thereof.
(b) On or before March 31 of each calendar year, the Servicer
shall cause a firm of nationally recognized independent public accountants (who
may also render other services to the Servicer or Seller) to furnish a report
(addressed to the Trustee) to the Trustee, each Agent, the Servicer, each Rating
Agency and each Enhancement Provider to the effect that they have performed
certain agreed upon procedures (and which reports the results of those
procedures), which were agreed to by the Servicer, solely to assist in
evaluating the Servicer's assertion as to the Servicer's compliance with the
servicing requirements in Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.9 of this
Agreement and Article IV of this Agreement, and the applicable provisions of the
Supplements for the outstanding Series.
(c) A copy of each statement, certificate, assertion or report
provided pursuant to Section 3.4, 3.5 or 3.6 may be obtained by any Investor
Certificateholder or Certificate Owner by a request to the Trustee addressed to
the Corporate Trust Office.
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SECTION 3.7. Tax Treatment. The Seller has entered into this
Agreement and the Investor Certificates have been (or shall be) issued with the
intention that the Investor Certificates shall qualify as indebtedness secured
by the Receivables for Federal income taxes, state and local income and
franchise taxes (if such franchise taxes are imposed on or measured by income)
and any other taxes imposed on or measured by income. The Seller, the Servicer,
each Beneficiary and each Certificateholder and Certificate Owner, by the
acceptance of its Certificate or Book-Entry Certificate or an interest in a
Certificate or a Book-Entry Certificate, as applicable, agrees to treat the
Investor Certificates as indebtedness secured by the Receivables for Federal
income taxes, state and local income and franchise taxes (if such franchise
taxes are imposed on or measured by income) and any other taxes imposed on or
measured by income.
SECTION 3.8. Notices to DFS. In the event DFS is no longer
acting as Servicer, any Successor Servicer appointed pursuant to Section 10.2
shall deliver or make available to DFS, as the case may be, each certificate and
report required to be prepared, forwarded or delivered thereafter pursuant to
Sections 3.4, 3.5 or 3.6.
SECTION 3.9. Adjustments. (a) If the Servicer adjusts downward
the amount of any Principal Receivable because of a rebate, refund, credit
adjustment or billing error to a Dealer, or because such Receivable was created
in respect of a Product which was refused or returned by a Dealer, then, in any
such case, the Seller's Participation Amount shall be automatically reduced by
the amount of the adjustment. Furthermore, if following such a reduction the
Pool Balance would be less than the Required Participation Amount on the
immediately preceding Determination Date (after giving effect to the
allocations, distributions, withdrawals and deposits to be made on the
Distribution Date immediately following such Determination Date), then the
Seller shall be required to pay an amount equal to such deficiency (up to the
amount of such adjustment) into the Collection Account on the day on which such
reduction occurs (each such payment an "Adjustment Payment").
(b) If (i) the Servicer makes a deposit into the Collection
Account in respect of a Collection of a Receivable and such Collection was
received by the Servicer in the form of a check which is not honored for any
reason or (ii) the Servicer makes a mistake with respect to the amount of any
Collection and deposits an amount that is less than or more than the actual
amount of such Collection, the Servicer shall appropriately adjust the amount
subsequently deposited into the Collection Account to reflect such dishonored
check or mistake. Any Receivable in respect of which a dishonored check is
received shall be deemed not to have been paid.
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ARTICLE IV
Rights of Holders and
Allocation and Application of Collections
SECTION 4.1. Rights of Holders. The Investor Certificates
shall represent fractional undivided interests in the Trust, which, with respect
to each Series, shall consist of the right to receive pari passu, to the extent
necessary to make the required payments with respect to the Investor
Certificates of such Series at the times and in the amounts specified in the
related Supplement, the portion of Collections allocable to Investor
Certificateholders of such Series pursuant to this Agreement and such
Supplement, funds on deposit in the Collection Account allocable to
Certificateholders of such Series pursuant to this Agreement and such
Supplement, funds on deposit in any related Series Account and funds available
pursuant to any related Enhancement (collectively, with respect to all Series,
the "Certificateholders' Interest"); provided that the Investor Certificates of
any Series or Class shall not represent any interest in any Series Account or
Enhancement for the benefit of any other Series or Class; provided, further,
that allocations to a Series other than the Dealer Overconcentration Series are
subject to allocations to the Dealer Overconcentration Series. The Seller's
Certificate shall represent a fractional undivided interest in the Trust, which
shall consist of the right to receive Collections with respect to the
Receivables and other amounts at the times and in the amounts specified in this
Agreement or in any Supplement to be paid to the Seller on behalf of all holders
of the Seller's Certificates (the "Seller's Interest"), and shall evidence the
interest in the Trust not allocated to the Certificateholders' Interest;
provided, however, that the Seller's Certificates shall not represent any
interest in the Collection Account, any Series Account or any Enhancement,
except as specifically provided in this Agreement or any Supplement.
SECTION 4.2. Establishment of the Collection Account. The
Trustee has established and maintained, and shall continue to maintain, in the
name of the Trust an Eligible Deposit Account bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Certificateholders and the other Beneficiaries (the "Collection Account"). The
Trustee shall possess all right, title and interest in all funds from time to
time on deposit in, and all Eligible Investments credited to, the Collection
Account and in all proceeds thereof. The Collection Account shall be under the
sole dominion and control of the Trustee for the benefit of the
Certificateholders and the other Beneficiaries. If, at any time, the Collection
Account ceases to be an Eligible Deposit Account, the Servicer shall, within 10
days after such occurrence, establish a substitute Eligible Deposit Account as
the Collection Account, instruct the Trustee to transfer any cash and/or any
Eligible Investments to such new Collection Account and, from the date any such
substitute account is established, such account shall be the Collection Account.
Neither the Seller nor the Servicer, nor any Person claiming by, through or
under the Seller or Servicer, shall have any right, title or interest in, or any
right to withdraw any amount from, the Collection Account. Pursuant to the
authority granted to the Servicer in Section 3.1, the Servicer shall have the
power, revocable by the Trustee, to instruct the Trustee to make withdrawals and
payments from the
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Collection Account for the purposes of carrying out the Servicer's or Trustee's
duties specified in this Agreement.
All Eligible Investments shall be held by the Trustee for the
benefit of the Certificateholders and the other Beneficiaries. Funds on deposit
in the Collection Account shall at the direction of the Servicer be invested by
the Trustee solely in Eligible Investments that shall mature so that such funds
shall be available by the close of business on the Business Day preceding the
next Distribution Date (or on or before 10:00 a.m. on such next Distribution
Date in the case of Eligible Investments in respect of which the Trustee is the
obligor). Any request by the Servicer to invest funds in the Collection Account
shall be in writing and shall certify that the requested investment is an
Eligible Investment that matures at or prior to the time required hereby. As of
each Determination Date, all interest and other investment earnings (net of
losses and investment expenses) on funds on deposit in the Collection Account
received on such Determination Date shall be credited to the Collection Account.
Schedule 2, which is hereby incorporated into and made part of this Agreement,
identifies the Collection Account by setting forth the account number of such
account, the account designation of such account and the name of the Eligible
Institution with which such account has been established. If a substitute
Collection Account is established pursuant to this Section 4.2, the Servicer
shall provide to the Trustee an amended Schedule 2, setting forth the relevant
information for such substitute Collection Account.
SECTION 4.3. Allocations and Applications of Collections and
Other Funds. (a) Except as otherwise provided in Sections 4.3(b) and (c), the
Servicer shall deposit Collections into the Collection Account as promptly as
possible after the Date of Processing of such Collections, but in no event later
than the second Business Day after such Date of Processing.
(b) Notwithstanding anything in this Agreement to the
contrary, for so long as (i) DFS remains the Servicer hereunder, (ii) no
Servicer Default has occurred and is continuing and (iii) (x) DFS arranges for
and maintains a letter of credit or other form of Enhancement in respect of the
Servicer's obligations to make deposits of collections on the Receivables in the
Collection Account that is acceptable in form and substance to each Rating
Agency and any Agents or (y) DFS otherwise obtains the Rating Agency
confirmations described below, then, subject to any limitations in the
confirmations described below, the Servicer need not make the daily deposits of
Collections into the Collection Account as provided in Section 4.3(a), but may
make a single deposit into the Collection Account in same-day funds not later
than 12:00 noon, New York City time, on the Business Day immediately preceding
the Distribution Date in a net amount equal to the amount which would have been
on deposit with respect to the immediately preceding Collection Period in the
Collection Account; provided, however, that prior to ceasing daily deposits as
described above the Seller shall have delivered to the Trustee written
confirmation from each of the Rating Agencies that the failure by DFS to make
daily deposits shall not result in a reduction or withdrawal of the rating of
any outstanding Series or Class.
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(c) Subject to Section 4.4, but notwithstanding anything else
in this Agreement to the contrary, with respect to any Collection Period,
whether the Servicer is required to make deposits of Collections pursuant to
paragraph (a) or (b) above, (i) the Servicer shall only be required to deposit
Collections into the Collection Account up to the aggregate amount of
Collections required to be deposited into all Series Accounts or, without
duplication, distributed on the related Distribution Date to all Investor
Certificateholders, to each Agent or to each Enhancement Provider pursuant to
the terms of any Supplement or Enhancement Agreement and (ii) if at any time
prior to such Distribution Date the amount of Collections deposited in the
Collection Account exceeds the amount required to be deposited pursuant to
clause (i) above, the Servicer shall be permitted to withdraw the excess from
the Collection Account.
The Servicer may make any deposits, distributions or payments
under this Agreement or a Supplement net of any amounts to be distributed or
paid to the Servicer under this Agreement or a Supplement; provided that the
Servicer shall account for such deposits, distributions and payments as if such
amounts were deposited, distributed or paid separately without such netting. The
Servicer shall net the portion of its Monthly Servicing Fee allocated to a
particular Series for a Distribution Date only if amounts deposited in the
Collection Account for that Distribution Date otherwise would be sufficient to
pay the amounts that are payable to that Series on such Distribution Date.
(d) Subject to Section 4.5, collections of Non-Principal
Receivables and Principal Receivables, Defaulted Amounts and Miscellaneous
Payments shall be allocated to each Series from and after the related Series
Cut-Off Date as specified in the related Supplement, and amounts so allocated to
any Series shall not, except as specified in the related Supplement, be
available to the Investor Certificateholders of any other Series. Allocations
thereof between the Certificateholders' Interest and the Seller's Interest,
among the Series in any group and among the Classes in any Series shall be set
forth in the related Supplement or Supplements.
(e) With respect to a receivable in which a Receivable and a
Participation Interest are undivided interests, the Servicer shall instruct the
Trustee in writing to distribute (and the Trustee shall distribute) the portion
of a collection allocable to such Participation Interest from the Collection
Account (to the extent it has been deposited into the Collection Account) to the
Servicer not later than one month after the deposit of such portion into the
Collection Account.
SECTION 4.4. Unallocated Principal Collections. On each
Distribution Date, (a) the Servicer shall allocate Excess Principal Collections
(as described below) to each Series as set forth in the related Supplement and
(b) the Servicer shall instruct the Trustee in the Distribution Date Statement
for such Distribution Date to withdraw from the Collection Account and pay to
the Seller (i) an amount equal to the excess, if any, of (x) the aggregate
amount, if any, for all outstanding Series of Collections of Principal
Receivables which the related Supplements specify are to be treated as "Excess
Principal Collections" with respect to
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such Distribution Date, over (y) the aggregate amount, if any, for all
outstanding Series which the related Supplements specify are "Principal
Shortfalls" with respect to such Distribution Date and, without duplication,
(ii) the aggregate amount for all outstanding Series of that portion of
Principal Collections which the related Supplements specify are to be allocated
and paid to the Seller with respect to such Distribution Date; provided,
however, that, in the case of clauses (i) and (ii), such amounts shall be paid
to the Seller only if the Unconcentrated Pool Balance for such Distribution Date
(determined after giving effect to any Principal Receivables transferred to the
Trust on such date) exceeds the Required Participation Amount for the
immediately preceding Determination Date (after giving effect to the
allocations, distributions, withdrawals and deposits to be made on such
Distribution Date). The amount held in the Collection Account as a result of the
proviso in the preceding sentence ("Unallocated Principal Collections") shall be
paid to the Seller at the time the Unconcentrated Pool Balance exceeds the
Required Participation Amount for the immediately preceding Determination Date
(after giving effect to the allocations, distributions, withdrawals and deposits
to be made on the Distribution Date immediately following such Determination
Date); provided, however, that any Unallocated Principal Collections on deposit
in the Collection Account at any time during which any Series is in its
amortization period, accumulation period or Early Amortization Period shall be
deemed to be "Miscellaneous Payments" and shall be allocated and distributed in
accordance with Sections 4.3 and 4.5 and the terms of each Supplement.
SECTION 4.5. Allocations to the Dealer Overconcentration
Series. (a) On each Determination Date, the Servicer shall determine whether a
Dealer Overconcentration exists with respect to any Dealer, and, if any Dealer
Overconcentration does exist, shall calculate the Overconcentration Percentage
for each Overconcentrated Dealer. For so long as a Dealer Overconcentration
exists, Principal Collections, Non-Principal Collections, Defaulted Amounts and
Miscellaneous Payments related to an Overconcentrated Dealer shall be allocated
in accordance with paragraph (b) of this Section.
(b) Notwithstanding any other provision of this Agreement, (a)
the Overconcentration Percentage of (i) all Principal Collections relating to
each Overconcentrated Dealer, (ii) all Non-Principal Collections relating to
each Overconcentrated Dealer, and (iii) all Defaulted Amounts and Miscellaneous
Payments relating to each Overconcentrated Dealer with respect to each
Collection Period shall be allocated to the Dealer Overconcentration Series, and
(b) the Unconcentrated Percentage of (i) all Principal Collections relating to
each Overconcentrated Dealer, (ii) all Non-Principal Collections relating to
each Overconcentrated Dealer, and (iii) all Defaulted Amounts and Miscellaneous
Payments relating to each Overconcentrated Dealer shall be allocated among the
Seller's Interest and the Certificateholders' Interest of the outstanding Series
(other than the Dealer Overconcentration Series).
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ARTICLE V
Distributions and Reports to
Certificateholders
Distributions shall be made to, and reports shall be provided
to, Certificateholders as set forth in the applicable Supplement.
ARTICLE VI
The Certificates
SECTION 6.1. The Certificates. The Investor Certificates of
any Series or Class may be issued (a) in fully registered form ("Registered
Certificates") and shall be substantially in the form of the exhibits with
respect thereto attached to the applicable Supplement, or (b) in uncertificated
form. The Deutsche FRLP Certificate was issued to the Seller in registered form.
If specified in any Supplement, the Investor Certificates of any Series or Class
shall be issued upon initial issuance as a single certificate evidencing the
aggregate original principal amount of such Series or Class as described in
Section 6.11. The Deutsche FRLP Certificate shall be a single certificate and
shall initially represent the entire Seller's Interest. Each Certificate shall
be executed by manual or facsimile signature on behalf of the Seller by its
President or any Vice President. Certificates bearing the manual or facsimile
signature of the individual who was, at the time when such signature was
affixed, authorized to sign on behalf of the Seller shall not be rendered
invalid, notwithstanding that such individual ceased to be so authorized prior
to the authentication and delivery of such Certificates or does not hold such
office at the date of such Certificates. No Certificates shall be entitled to
any benefit under this Agreement, or be valid for any purpose, unless there
appears on such Certificate a certificate of authentication substantially in the
form provided for herein executed by or on behalf of the Trustee by the manual
signature of a duly authorized signatory, and such certificate upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All Registered
Certificates and Seller's Certificates shall be dated the date of their
authentication.
SECTION 6.2. Authentication of Certificates. The Trustee shall
authenticate and deliver the Investor Certificates of each Series and Class that
are issued upon original issuance to or upon the order of the Seller, which
order may be given under normal or facsimile signature. The Trustee
authenticated and delivered the Deutsche FRLP Certificate to the Seller
simultaneously with its delivery of the Investor Certificates of the first
Series issued hereunder. If specified in the related Supplement for any Series
or Class, the Trustee shall authenticate and deliver outside the United States
the Global Certificate that is issued upon original issuance thereof.
SECTION 6.3. New Issuances. (a) The Seller may from time to
time direct the Trustee, on behalf of the Trust, to issue one or more new Series
pursuant to a Supplement.
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The Investor Certificates of all outstanding Series shall be equally and ratably
entitled as provided herein to the benefits of this Agreement without
preference, priority or distinction, all in accordance with the terms and
provisions of this Agreement and the applicable Supplement except, with respect
to any Series or Class, as provided in the related Supplement.
(b) On or before the Series Issuance Date relating to any new
Series, the parties hereto shall execute and deliver a Supplement which shall
specify the Principal Terms of such new Series. The terms of such Supplement may
modify or amend the terms of this Agreement solely as applied to such new
Series. The obligation of the Trustee to issue the Investor Certificates of such
new Series on the related Closing Date and to execute and deliver the related
Supplement is subject to the satisfaction of the following conditions:
(i) on or before the fifth Business Day immediately
preceding the Series Issuance Date (or in the case of the
Dealer Overconcentration Series or the Series designated as
"Series 2000-1" or "Series 2000-2", on or before the Series
Issuance Date of such Series), the Seller shall have given the
Trustee, the Servicer, each Rating Agency, any Agent and any
Enhancement Provider written notice of such issuance and the
anticipated date on which such Series will be issued;
(ii) the Seller shall have delivered to the Trustee
the related Supplement, in form satisfactory to the Trustee,
executed by each party hereto other than the Trustee;
(iii) the Seller shall have delivered to the Trustee
any related Enhancement Agreement executed by each of the
parties thereto, other than the Trustee;
(iv) the Rating Agency Condition, if applicable,
shall have been satisfied with respect to such issuance;
(v) such issuance shall not result in the occurrence
of an Early Amortization Event and the Seller shall have
delivered to the Trustee, any Agent and any Enhancement
Provider a certificate of a Vice President or more senior
officer, dated the Series Issuance Date, to the effect that
the Seller reasonably believes that such issuance shall not
result in the occurrence of an Early Amortization Event and is
not reasonably expected to result in the occurrence of an
Early Amortization Event at any time in the future;
(vi) the Seller shall have delivered to the Trustee
and any Enhancement Provider a Tax Opinion, dated the Series
Issuance Date, with respect to such issuance;
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(vii) the result obtained by multiplying (x) the
Seller's Participation Amount by (y) the percentage equivalent
of the portion of the Seller's Interest represented by the
Deutsche FRLP Certificate, shall not be less than 2% of the
Pool Balance, in each case as of the Series Issuance Date, and
after giving effect to such issuance;
(viii) if there are any Delayed Funding Receivables
in the Pool Balance, the conditions in clauses (v) and (vii)
shall also be satisfied after excluding from the Pool Balance
all Principal Receivables that are Delayed Funding
Receivables; and
(ix) the Seller shall have delivered to the Trustee
an Officer's Certificate to the effect that the conditions
precedent in this Section 6.3(b) have been satisfied; and
Upon satisfaction of the above conditions, the Trustee shall execute the
Supplement and issue to the Seller the Investor Certificates, if any, of such
Series for execution and redelivery to the Trustee for authentication.
(c) The Seller may surrender the Deutsche FRLP Certificate to
the Trustee in exchange for a newly issued Deutsche FRLP Certificate and a
second certificate (a "Supplemental Certificate"), the terms of which shall be
defined in a supplement to this Agreement (which Supplement shall be subject to
Section 13.1 hereof to the extent that it amends any of the terms of this
Agreement), to be delivered to or upon the order of the Seller (or the holder of
a Supplemental Certificate, in the case of the transfer or exchange thereof, as
provided below), upon satisfaction of the following conditions:
(i) the result obtained by multiplying (x) the
Seller's Participation Amount (determined in accordance with
Section 2.5(a)) by (y) the percentage equivalent of the
portion of the Seller's Interest represented by the Deutsche
FRLP Certificate, shall not be less than 2% of the Pool
Balance (determined in accordance with Section 2.5(a)), in
each case as of the date of, and after giving effect to, such
exchange;
(ii) the Rating Agency Condition shall have been
satisfied with respect to such exchange (or transfer or
exchange as provided below);
(iii) the Seller shall have delivered to the Trustee,
any Agent and any Enhancement Provider a Tax Opinion, dated
the date of such exchange (or transfer or exchange as provided
below), with respect to such transfer and exchange; and
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(iv) the Seller shall have delivered to the Trustee
an Officer's Certificate to the effect that the conditions
precedent in this Section 6.3(c) shall have been satisfied.
The Deutsche FRLP Certificate shall at all times be beneficially owned by the
Seller. Any Supplemental Certificate may be transferred or exchanged only upon
satisfaction of the conditions set forth in clauses (ii) and (iii) above.
(d) Notwithstanding anything to the contrary in this
Agreement, any Series may be issued in uncertificated form, i.e., without being
evidenced by a certificate of any kind. This is in addition to, and is not the
same as, the fact that certificates of a Series may be issued as Book-Entry
Certificates. All references in this Agreement or a Supplement (x) to a Series
shall be deemed to refer also to an uncertificated Series, and (y) to
Certificateholders of a Series shall be deemed to refer also to the holder or
holders of an uncertificated Series.
SECTION 6.4. Registration of Transfer and Exchange of
Certificates. (a) The Trustee shall cause to be kept at the office or agency to
be maintained in accordance with the provisions of Section 11.15 a register (the
"Certificate Register") in which, subject to such reasonable regulations as it
may prescribe, a transfer agent and registrar (the "Transfer Agent and
Registrar") shall provide for the registration of the Registered Certificates
and the Dealer Overconcentration Series, and of transfers and exchanges of the
Registered Certificates and the Dealer Overconcentration Series, as herein
provided. The Transfer Agent and Registrar shall initially be the Trustee and
any co-transfer agent and co-registrar chosen by the Seller and acceptable to
the Trustee. Any reference in this Agreement to the Transfer Agent and Registrar
shall include any co-transfer agent and co-registrar unless the context requires
otherwise.
Subject to paragraph (c) below, upon surrender for
registration of transfer of any Registered Certificate at any office or agency
of the Transfer Agent and Registrar maintained for such purpose, one or more new
Registered Certificates (of the same Series and Class) in authorized
denominations shall be executed, authenticated and delivered, in the name of the
designated transferee or transferees.
At the option of a Registered Certificateholder, Registered
Certificates (of the same Series and Class) may be exchanged for other
Registered Certificates of authorized denominations upon surrender of the
Registered Certificates to be exchanged at any such office or agency.
The preceding provisions of this Section notwithstanding, the
Trustee or the Transfer Agent and Registrar, as the case may be, shall not be
required to register the transfer of or exchange any Certificate for a period of
15 days preceding the due date for any payment with respect to the Certificate.
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Whenever any Investor Certificates are so surrendered for
exchange, the Seller shall execute, the Trustee shall authenticate, and the
Transfer Agent and Registrar shall deliver the Investor Certificates which the
Investor Certificateholder making the exchange is entitled to receive. Every
Investor Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer in a form
satisfactory to the Trustee or the Transfer Agent and Registrar duly executed by
the Investor Certificateholder or the attorney-in-fact thereof duly authorized
in writing.
No service charge shall be made for any registration of
transfer or exchange of Investor Certificates or the Dealer Overconcentration
Series, but the Transfer Agent and Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any such transfer or exchange.
All Investor Certificates surrendered for registration of
transfer and exchange or for payment shall be canceled and disposed of in a
manner satisfactory to the Trustee. The Trustee shall cancel and destroy any
Global Certificate upon its exchange in full for Definitive Euro-Certificates
and shall deliver a certificate of destruction to the Seller. Such certificate
shall also state that a certificate or certificates of a Foreign Clearing Agency
to the effect referred to in Section 6.11 was received with respect to each
portion of the Global Certificate exchanged for Definitive Euro-Certificates.
The Seller shall execute and deliver to the Trustee Registered
Certificates in such amounts and at such times as are necessary to enable the
Trustee to fulfill its responsibilities under this Agreement and the
Certificates.
(b) The Transfer Agent and Registrar shall maintain at its
expense in the Borough of Manhattan, The City of New York, an office or agency
where Investor Certificates may be surrendered for registration of transfer or
exchange.
(c) (i) Registration of transfer of Investor Certificates
containing a legend to the effect set forth on Exhibit D-1 shall be effected
only if such transfer is made pursuant to an effective registration statement
under the Act, or is exempt from the registration requirements under the Act. In
the event that registration of a transfer is to be made in reliance upon an
exemption from the registration requirements under the Act, the transferor or
the transferee shall deliver, at its expense, to the Seller, the Servicer and
the Trustee, an investment letter from the transferee, substantially in the form
attached to the applicable Supplement, and no registration of transfer shall be
made until such letter is so delivered.
Investor Certificates issued upon registration or transfer of,
or Investor Certificates issued in exchange for, Investor Certificates bearing
the legend referred to above shall also bear such legend unless the Seller, the
Servicer, the Trustee and the Transfer Agent and Registrar receive an opinion of
counsel, satisfactory to each of them, to the effect that such legend may be
removed.
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Whenever an Investor Certificate containing the legend
referred to above is presented to the Transfer Agent and Registrar for
registration of transfer, the Transfer Agent and Registrar shall promptly seek
instructions from the Servicer regarding such transfer and shall be entitled to
receive and conclusively rely upon instructions signed by a Servicing Officer
prior to registering any such transfer. The Seller hereby agrees to indemnify
the Transfer Agent and Registrar and the Trustee and to hold each of them
harmless against any loss, liability or expense incurred without negligence or
bad faith on their part arising out of or in connection with actions taken or
omitted by them in relation to any such instructions furnished pursuant to this
clause (i).
(ii) Registration of transfer of Investor Certificates
containing a legend to the effect set forth on Exhibit D-2 shall be effected
only if such transfer is made to a Person which is not an employee benefit plan,
trust or account, including an individual retirement account, that is subject to
ERISA or that is described in Section 4975(e)(1) of the Code or an entity whose
underlying assets include plan assets by reason of a plan's investment in such
entity (a "Benefit Plan"). By accepting and holding any such Investor
Certificate, an Investor Certificateholder shall be deemed to have represented
and warranted that it is not a Benefit Plan. With respect to any such
Certificate that is a Book-Entry Certificate, by acquiring any interest in such
Book-Entry Certificate a Certificate Owner shall be deemed to have represented
and warranted that it is not a Benefit Plan.
SECTION 6.5. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate is surrendered to the Transfer
Agent and Registrar, or the Transfer Agent and Registrar receives evidence to
its satisfaction of the destruction, loss or theft of any Certificate and (b)
there is delivered to the Transfer Agent and Registrar and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Trustee that such Certificate has been
acquired by a bona fide purchaser, the Seller shall execute, the Trustee shall
authenticate and the Transfer Agent and Registrar shall deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and aggregate fractional undivided interest. In
connection with the issuance of any new Certificate under this Section, the
Trustee or the Transfer Agent and Registrar may require the payment by the
Certificateholder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee and Transfer Agent and Registrar) connected
therewith. Any duplicate Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 6.6. Persons Deemed Owners. The Trustee, the Transfer
Agent and Registrar and any agent of any of them may prior to due presentation
of a Registered Certificate for registration of transfer, treat the Person or
Persons in whose name any Registered Certificate is registered as the owner of
such Registered Certificate for the purpose of receiving distributions pursuant
to the terms of the applicable Supplement and for all other
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purposes whatsoever; and, in any such case, neither the Trustee, the Transfer
Agent and Registrar nor any agent of any of them shall be affected by any notice
to the contrary. Notwithstanding the foregoing, in determining whether the
Holders of the requisite Investor Certificates have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Certificates
owned by the Seller, the Servicer, any other holder of a Seller's Certificate or
any Affiliate thereof, shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Certificates which a Responsible Officer of the Trustee knows to be
so owned shall be so disregarded. Certificates so owned which have been pledged
in good faith shall not be disregarded and may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Certificates and that the pledgee is not the Seller,
the Servicer, any other holder of a Seller's Certificate or any Affiliate
thereof.
SECTION 6.7. Access to List of Registered Certificateholders'
Names and Addresses. The Trustee shall furnish or cause to be furnished by the
Transfer Agent and Registrar to the Servicer, within five Business Days after
receipt by the Trustee of a request therefor, a list in such form as the
Servicer may reasonably require, of the names and addresses of the Registered
Certificateholders. If three or more holders of Investor Certificates (the
"Applicants") apply to the Trustee, and such application states that the
Applicants desire to communicate with other Investor Certificateholders with
respect to their rights under this Agreement or any Supplement or under the
Investor Certificates and is accompanied by a copy of the communication which
such Applicants propose to transmit, then the Trustee, after having been
indemnified to its reasonable satisfaction by such Applicants for its costs and
expenses, shall afford or shall cause the Transfer Agent and Registrar to afford
such Applicants access during normal business hours to the most recent list of
Registered Certificateholders of such Series or all outstanding Series, as
applicable, held by the Trustee, within five Business Days after the receipt of
such application. Such list shall be as of a date no more than 45 days prior to
the date of receipt of such Applicants' request.
Every Registered Certificateholder, by receiving and holding a
Registered Certificate, agrees with the Trustee that neither the Trustee, the
Transfer Agent and Registrar, nor any of their respective agents, shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Registered Certificateholders hereunder, regardless of the
sources from which such information was derived.
SECTION 6.8. Book-Entry Certificates. Unless otherwise
specified in the related Supplement for any Series or Class, the Investor
Certificates, upon original issuance, shall be issued in the form of one or more
typewritten Investor Certificates representing the Book-Entry Certificates, to
be delivered to the Depository, by, or on behalf of, the Seller. The Investor
Certificates shall initially be registered on the Certificate Register in the
name of the Depository or its nominee, and no Certificate Owner shall receive a
physical certificate representing such Certificate Owner's interest in the
Investor Certificates, except as provided in Section 6.10. Unless and until
certificated, fully registered Investor Certificates ("Definitive
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Certificates") have been issued to the applicable Certificate Owners pursuant to
Section 6.10 or as otherwise specified in any such Supplement:
(a) the provisions of this Section shall be in full
force and effect;
(b) the Seller, the Servicer and the Trustee may deal
with the Depository and the Depository Participants for all
purposes (including the making of distributions) as the
authorized representatives of the respective Certificate
Owners;
(c) to the extent that the provisions of this
Section conflict with any other provisions of this Agreement,
the provisions of this Section shall control; and
(d) the rights of the respective Certificate Owners
shall be exercised only through the Depository and the
Depository Participants and shall be limited to those
established by law and agreements between such Certificate
Owners and the Depository and/or the Depository Participants.
Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 6.10,
the Depository shall make book-entry transfers among the
Depository Participants and receive and transmit distributions
of principal and interest on the related Investor Certificates
to such Depository Participants.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Investor
Certificateholders evidencing a specified percentage of the aggregate unpaid
principal amount of Investor Certificates, such direction or consent may be
given by Certificate Owners (acting through the Depository and the Depository
Participants) owning Investor Certificates evidencing the requisite percentage
of principal amount of Investor Certificates.
SECTION 6.9. Notices to Depository. Whenever any notice or
other communication is required to be given to Investor Certificateholders of
any Series or Class with respect to which Book-Entry Certificates have been
issued, unless and until Definitive Certificates shall have been issued to the
related Certificate Owners, the Trustee shall give all such notices and
communications to the applicable Depository.
SECTION 6.10. Definitive Certificates. If Book-Entry
Certificates have been issued with respect to any Series or Class and (a) the
Seller advises the Trustee in writing that the Depository is no longer willing
or able to discharge properly its responsibilities under the Depository
Agreement with respect to such Series or Class, and the Trustee or the Seller is
unable to locate a qualified successor, (b) the Seller, at its option, advises
the Trustee in writing that it elects to terminate the book-entry system with
respect to such Series or Class through the Depository or (c) after the
occurrence of a Servicer Default, Certificate owners of such Series or Class
evidencing more than 50% of the aggregate unpaid principal amount of
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such Series or Class the Certificates of which are registered in the name of DTC
or its nominee advise the Trustee in writing and the Depository through the
Depository Participants that the continuation of a book-entry system with
respect to the Investor Certificates of such Series or Class through the
Depository is no longer in the best interests of the Certificate Owners with
respect to such Certificates, then the Trustee shall notify all Certificate
Owners of such Certificates, through the Depository, of the occurrence of any
such event and of the availability of Definitive Certificates to Certificate
Owners requesting the same. Upon surrender to the Trustee of any such
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration, the Trustee shall authenticate and deliver such
Definitive Certificates to such Certificate Owners. Neither the Seller nor the
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of such Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Depository shall be deemed to
be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of such Definitive Certificates as Investor Certificateholders
hereunder.
SECTION 6.11. Global Certificate; Exchange Date. (a) If
specified in the related Supplement for any Series or Class, the Investor
Certificates shall initially be issued in the form of a single temporary global
Certificate (the "Global Certificate") in bearer form, without interest coupons,
in the denomination of the entire aggregate principal amount of such Series or
Class and substantially in the form set forth in the exhibit with respect
thereto attached to the related Supplement. The Global Certificate shall be
authenticated by the Trustee upon the same conditions, in substantially the same
manner and with the same effect as the Definitive Certificates. The Global
Certificate may be exchanged as described below for Registered Certificates in
definitive form (the "Definitive Euro-Certificates").
(b) The Manager shall, upon its determination of the date of
completion of the distribution of the Investor Certificates of such Series or
Class, so advise the Trustee, the Seller, the Common Depositary, and each
Foreign Clearing Agency forthwith. A United States institutional investor may
exchange the portion of the Global Certificate beneficially owned by it only for
an equal aggregate principal amount of Registered Certificates bearing the
applicable legend set forth in the form of Registered Certificate attached to
the related Supplement and having a minimum denomination of $500,000, which may
be in temporary form if the Seller so elects. The Seller may waive the $500,000
minimum denomination requirement if it so elects, by delivery of an Officer's
Certificate to the Trustee to such effect. Upon any demand for exchange for
Definitive Euro-Certificates in accordance with this paragraph, the Seller shall
cause the Trustee to authenticate and deliver the Definitive Euro-Certificates
to the Holder and according to the instructions of the Holder, in the case of
Registered Certificates, but in either case only upon presentation to the
Trustee of a written statement substantially in the form of Exhibit F-1 with
respect to the Global Certificate or portion thereof being exchanged, signed by
a Foreign Clearing Agency and dated on the Exchange Date or a subsequent date,
to the effect that it has received in writing or by tested telex a certification
substantially in the form of (i) in the case of beneficial ownership of the
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Global Certificate or a portion thereof being exchanged by a United States
institutional investor pursuant to the second preceding sentence, the
certificate in the form of Exhibit F-2 signed by the Manager which sold the
relevant Certificates or (ii) in all other cases, the certificate in the form of
Exhibit F-3, the certificate referred to in this clause (ii) being dated on the
earlier of the first actual payment of interest in respect of such Certificates
and the date of the delivery of such Certificate in definitive form. Upon
receipt of such certification, the Trustee shall cause the Global Certificate to
be endorsed in accordance with paragraph (d) below. Any exchange as provided in
this Section shall be made free of charge to the holders and the beneficial
owners of the Global Certificate and to the beneficial owners of the Definitive
Euro-Certificates issued in exchange, except that a Person receiving Definitive
Euro-Certificates must bear the cost of insurance, postage, transportation and
the like in the event that such Person does not receive such Definitive
Euro-Certificates in person at the offices of a Foreign Clearing Agency.
(c) The delivery to the Trustee by a Foreign Clearing Agency
of any written statement referred to above may be relied upon by the Seller and
the Trustee as conclusive evidence that a corresponding certification or
certifications has or have been delivered to such Foreign Clearing Agency
pursuant to the terms of this Agreement.
(d) Upon any such exchange of all or a portion of the Global
Certificate for a Definitive Euro-Certificate or Certificates, such Global
Certificate shall be endorsed by or on behalf of the Trustee to reflect the
reduction of its principal amount by an amount equal to the aggregate principal
amount of such Definitive Euro-Certificate or Certificates. Until so exchanged
in full, such Global Certificate shall in all respects be entitled to the same
benefits under this Agreement as Definitive Euro-Certificates authenticated and
delivered hereunder except that the beneficial owners of such Global Certificate
shall not be entitled to receive payments of interest on the Certificates until
they have exchanged their beneficial interests in such Global Certificate for
Definitive Euro-Certificates.
SECTION 6.12. Meetings of Certificateholders. (a) Notice of
any meeting of Investor Certificateholders, setting forth the time and place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given in accordance with Section 13.5, the first mailing and
publication to be not less than 20 nor more than 180 days prior to the date
fixed for the meeting. To be entitled to vote at any meeting of Investor
Certificateholders a Person shall be (i) a Holder of one or more Investor
Certificates of the applicable Series or Class or (ii) a Person appointed by an
instrument in writing as proxy by the Holder of one or more such Investor
Certificates. The only Persons who shall be entitled to be present or to speak
at any meeting of Investor Certificateholders shall be the Persons entitled to
vote at such meeting and their counsel and any representatives of the Seller,
the Servicer and the Trustee and their respective counsel.
(b) At a meeting of Investor Certificateholders, Persons
entitled to vote Investor Certificates evidencing a majority of the aggregate
unpaid principal amount of the applicable Series or Class or all outstanding
Series, as the case may be, shall constitute a
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quorum. No business shall be transacted in the absence of a quorum, unless a
quorum is present when the meeting is called to order. In the absence of a
quorum at any such meeting, the meeting may be adjourned for a period of not
less than 10 days; in the absence of a quorum at any such adjourned meeting,
such adjourned meeting may be further adjourned for a period of not less than 10
days; at the reconvening of any meeting further adjourned for lack of a quorum,
the Persons entitled to vote Investor Certificates evidencing at least 25% of
the aggregate unpaid principal amount of the applicable Series or Class or all
outstanding Series, as the case may be, shall constitute a quorum for the taking
of any action set forth in the notice of the original meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided above except
that such notice must be given not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage of the aggregate
principal amount of the outstanding applicable Investor Certificates which shall
constitute a quorum.
(c) Any Investor Certificateholder who has executed an
instrument in writing appointing a person as proxy shall be deemed to be present
for the purposes of determining a quorum and be deemed to have voted; provided
that such Investor Certificateholder shall be considered as present or voting
only with respect to the matters covered by such instrument in writing. Subject
to the provisions of Section 13.1, any resolution passed or decision taken at
any meeting of Investor Certificateholders duly held in accordance with this
Section shall be binding on all Investor Certificateholders whether or not
present or represented at the meeting.
(d) The Trustee shall appoint a temporary chairman of the
meeting. A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Holders of Investor Certificates evidencing a majority of
the aggregate unpaid principal amount of Investor Certificates of the applicable
Series or Class or all outstanding Series, as the case may be, represented at
the meeting. No vote shall be cast or counted at any meeting in respect of any
Investors Certificate challenged as not outstanding and ruled by the chairman of
the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote except as an Investor Certificateholder or proxy. Any meeting of
Investor Certificateholders duly called at which a quorum is present may be
adjourned from time to time, and the meeting may be held as so adjourned without
further notice.
(e) The vote upon any resolution submitted to any meeting of
Investor Certificateholders shall be by written ballot on which shall be
subscribed the signatures of Investor Certificateholders or proxies and on which
shall be inscribed the serial number or numbers of the Investor Certificates
held or represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Investor
Certificateholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more
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persons having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was published as provided above. The record
shall be signed and verified by the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Servicer and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE VII
Other Matters Relating
to the Seller
SECTION 7.1. Liability of the Seller. The Seller shall be
liable for all obligations, covenants, representations and warranties of the
Seller arising under or related to this Agreement. Except as provided in the
preceding sentence, the Seller shall be liable only to the extent of the
obligations specifically undertaken by it in its capacity as Seller hereunder.
SECTION 7.2. Limitation on Liability of the Seller. Subject to
Sections 7.1, 7.3 and 7.4, neither the Seller, any of its partners, employees or
agents, nor any of the shareholders, directors, officers, employees or agents of
such partners in its capacity as Seller shall be under any liability to the
Trust, the Trustee, the Certificateholders or any other Person for any action
taken or for refraining from the taking of any action in the capacity as Seller
pursuant to this Agreement whether arising from express or implied duties under
this Agreement; provided, however, that this provision shall not protect the
Seller or any such Person against any liability which would otherwise be imposed
by reason of wilful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Seller and any of its partners and any director or officer
or employee or agent of the Seller or any of its partners may rely in good faith
on any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder.
SECTION 7.3. Seller Indemnification of the Trust and the
Trustee. The Seller shall indemnify and hold harmless the Trust, for the benefit
of the Certificateholders and the other Beneficiaries, and the Trustee, from and
against any loss, liability, expense, damage or injury suffered or sustained by
reason of any acts, omissions or alleged acts or omissions arising out of
activities of the Trust or the Trustee pursuant to this Agreement, including any
judgment, award, settlement, reasonable attorneys' fees and other costs or
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim; provided, however, that the Seller shall not
indemnify the Trust or the Trustee if such acts, omissions or alleged acts or
omissions constitute fraud, gross negligence, breach of fiduciary duty or wilful
misconduct by the Trustee; and provided further that the Seller shall not
indemnify the Trust, Trustee or the Certificateholders or any other
Beneficiaries for any liabilities, cost or expense of the Trust with respect to
any action taken by the Trustee at the request of any Certificateholders or
other Beneficiaries to the extent the Trustee is fully indemnified by such
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Certificateholders or other Beneficiaries with respect to such action and such
action is inconsistent with their rights hereunder or with respect to any
Federal, state or local income or franchise taxes (or any interest or penalties
with respect thereto) required to be paid by the Trust or any Certificateholder
or other Beneficiary in connection herewith to any taxing authority. Subject to
Section 7.1, any indemnification pursuant to this Section shall only be from (i)
the excess of the Seller's Interest for any date of determination over the
Required Participation Amount as of such date and (ii) any other assets of the
Seller not pledged to third parties or otherwise encumbered in a manner
permitted by the Seller's agreement of limited partnership and shall only be
made after payment in full of any amounts that the Seller is obligated to
deposit in the Collection Account pursuant to this Agreement. Any
indemnification under this Article VII shall survive the resignation or removal
of the Trustee and the termination of this Agreement.
SECTION 7.4. Liabilities. Notwithstanding anything to the
contrary in this Agreement, the Seller by entering into this Agreement, and any
holder of any interest in the Seller's Certificate by its acceptance thereof,
agree to be liable, directly to the injured party, for the entire amount of any
losses, claims, damages or liabilities (other than those incurred by an Investor
Certificateholder in its capacity as an Investor Certificateholder) arising out
of or based on the arrangement created by this Agreement or the actions of
Servicer taken pursuant hereto (to the extent Trust Assets remaining after the
Investor Certificateholders and Enhancement Providers, if any, have been paid in
full are insufficient to pay any such losses, claims, damages or liabilities) as
though this Agreement created a partnership under the Delaware Revised Uniform
Partnership Act in which Seller and such holder of the Seller's Certificate were
general partners.
ARTICLE VIII
Other Matters Relating to the Servicer
SECTION 8.1. Liability of the Servicer. The Servicer shall be
liable under this Article VIII only to the extent of the obligations
specifically undertaken by the Servicer in its capacity as Servicer.
SECTION 8.2. Merger or Consolidation of, or Assumption of, the
Obligations of the Servicer. The Servicer shall not consolidate with or merge
with any other Person or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(a) the Person formed by such consolidation or with
which the Servicer is merged or the Person which acquires by
conveyance or transfer the properties and assets of the
Servicer substantially as an entirety shall be a Person
organized and existing under the laws of the United States of
America or any State or the District of Columbia and, if the
Servicer is not the surviving entity, such Person shall
assume, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, the
performance of
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every covenant and obligation of the Servicer hereunder, and
upon compliance with paragraph (b) below such Person shall be
the Servicer; and
(b) the Servicer has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance or transfer comply
with this Section 8.2 and that all conditions provided for in
paragraph (a) relating to such transaction have been complied
with.
Neither this Section 8.2 nor any other part of this Agreement
shall prevent or limit the sale or other transfer of shares of stock of DFS.
The Servicer (if DFS) shall notify the Rating Agencies
promptly in the event that DFS ceases to be a wholly-owned indirect subsidiary
of Deutsche Bank AG.
SECTION 8.3. Limitation on Liability of the Servicer and
Others. Except as provided in Sections 8.1 and 8.4, neither the Servicer nor any
of the directors or officers or employees or agents of the Servicer, shall be
under any liability to the Trust, the Trustee, the Certificateholders or any
other Person for any action taken or for refraining from the taking of any
action in its capacity as Servicer pursuant to this Agreement; provided,
however, that this provision shall not protect the Servicer or any such person
against any liability which would otherwise be imposed by reason of wilful
misfeasance, bad faith or negligence in the performance of duties or by reason
of reckless disregard of obligations and duties hereunder. The Servicer and any
director or officer or employee or agent of the Servicer may rely in good faith
on any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Receivables in accordance with this
Agreement which in its reasonable opinion may involve it in any expense or
liability.
SECTION 8.4. Servicer Indemnification of the Trust and the
Trustee. The Servicer shall indemnify and hold harmless the Trust, for the
benefit of the Certificateholders and the other Beneficiaries, and the Trustee,
from the Servicer's own funds, from and against any loss, liability, expense,
damage or injury suffered or sustained by reason of any acts, omissions or
alleged acts or omissions arising out of activities of the Servicer, the Trust
or the Trustee pursuant to this Agreement, including any judgment, award,
settlement, reasonable attorneys' fees and other costs or expenses incurred in
connection with the defense of any actual or threatened action, proceeding or
claim; provided, however, that the Servicer shall not indemnify the Trust or the
Trustee if such acts, omissions or alleged acts or omissions constitute fraud,
gross negligence, breach of fiduciary duty or wilful misconduct by the Trustee;
and provided, further that the Servicer shall not indemnify the Trust, the
Trustee or the Certificateholders or the other Beneficiaries (i) for any
liabilities, cost or expense of the Trust with respect to any action taken by
the Trustee at the request of the Certificateholders or any other Beneficiaries
to the extent the Trustee is fully indemnified by such
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Certificateholders or other Beneficiaries with respect to such action or (ii)
with respect to any Federal, state or local income or franchise taxes (or any
interest or penalties with respect thereto) required to be paid by the Trust or
the Certificateholders or the other Beneficiaries in connection herewith to any
taxing authority or (iii) for any loss due to the financial inability of any
Dealer to make payments on or with respect to any Receivable. Any
indemnification under this Article VIII shall survive the termination of this
Agreement and the resignation and removal of the Trustee.
SECTION 8.5. The Servicer Not to Resign. The Servicer shall
not resign from the obligations and duties hereby imposed on it except upon
determination that (a) the performance of its duties hereunder is no longer
permissible under applicable law and (b) there is no reasonable action which the
Servicer could take to make the performance of its duties hereunder permissible
under applicable law. Any such determination permitting the resignation of the
Servicer shall be evidenced as to clause (a) above by an Opinion of Counsel to
such effect delivered to the Trustee. No such resignation shall become effective
until the Trustee or a Successor Servicer shall have assumed the
responsibilities and obligations of the Servicer in accordance with Section 10.2
hereof. If the Trustee is unable within 120 days of the date of such
determination to appoint a Successor Servicer, the Trustee shall serve as
Successor Servicer hereunder.
SECTION 8.6. Access to Certain Documentation and Information
Regarding the Receivables. The Servicer shall provide to the Trustee access to
the documentation regarding the Accounts and the Receivables in such cases where
the Trustee is required in connection with the enforcement of the rights of the
Certificateholders, or by applicable statutes or regulations, to review such
documentation, such access being afforded without charge but only (a) upon
reasonable request, (b) during normal business hours, (c) subject to the
Servicer's normal security and confidentiality procedures and (d) at offices
designated by the Servicer. Nothing in this Section 8.6 shall derogate from the
obligation of the Seller, the Trustee or the Servicer to observe any applicable
law prohibiting disclosure of information regarding the Dealers and the failure
of the Servicer to provide access as provided in this Section 8.6 as a result of
such obligation shall not constitute a breach of this Section 8.6.
SECTION 8.7. Delegation of Duties. Subject to Section 3.1, in
the ordinary course of business, the Servicer may at any time delegate any
duties hereunder to any Person who agrees to conduct such duties in accordance
with the Financing Guidelines (or, in the case of a Successor Servicer, the
servicing standards required hereunder) and this Agreement. The Servicer shall
give prompt written notice of any such delegation of a material function to the
Rating Agencies, any Agent and any Enhancement Providers. Such delegation shall
not relieve the Servicer of its liability and responsibility with respect to
such duties, and shall not constitute a resignation within the meaning of
Section 8.5 and the Rating Agency Condition shall have been satisfied with
respect to such delegation prior to such delegation.
SECTION 8.8. Examination of Records. The Seller and the
Servicer shall indicate generally in its computer files or other records that
the Receivables arising in the
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Accounts have been conveyed to the Trust pursuant to this Agreement for the
benefit of the Certificateholders and the other Beneficiaries. The Seller and
the Servicer shall, prior to the sale or transfer to a third party of any
receivable held in its custody, examine its computer and other records to
determine that such receivable is not a Receivable.
SECTION 8.9. Custodial Arrangements. (a) The Servicer shall
maintain custody of all documents, instruments or records that evidence or
relate to Receivables as custodian for the benefit of the Trustee and the
Investor Certificateholders. The Trustee shall have no responsibility or
liability for any acts or omissions or any negligence or wilful misconduct of
the Servicer as such custodian.
(b) In performing its duties under this Section 8.9, the
Servicer agrees to act with that degree of skill and care that it exercises with
respect to similar documents, instruments or records that evidence or relate to
receivables owned or serviced by it.
ARTICLE IX
Early Amortization Events
SECTION 9.1. Early Amortization Events. If any one of the
following events shall occur:
(a) a failure by the Seller to convey Receivables in
Additional Accounts to the Trust within five Business Days
after the day on which it is required to convey such
Receivables pursuant to this Agreement; or
(b) any Specified Party shall file a petition
commencing a voluntary case under any chapter of the Federal
bankruptcy laws; or any Specified Party shall file a petition
or answer or consent seeking reorganization, arrangement,
adjustment, or composition under any other similar applicable
Federal law, or shall consent to the filing of any such
petition, answer, or consent; or any Specified Party shall
appoint, or consent to the appointment of, a custodian,
receiver, liquidator, trustee, assignee, sequestrator or other
similar official in bankruptcy or insolvency or receivership
of it or of any substantial part of its property; or any
Specified Party shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its
debts generally as they become due; or
(c) any order for relief against any Specified Party
shall have been entered by a court having jurisdiction in the
premises under any chapter of the Federal bankruptcy laws, and
such order shall have continued undischarged or unstayed for a
period of 60 days; or a decree or order by a court having
jurisdiction in the premises shall have been entered approving
as properly filed a petition seeking reorganization,
arrangement, adjustment, or composition of
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any Specified Party under any other similar applicable Federal
law, and such decree or order shall have continued
undischarged or unstayed for a period of 120 days; or a decree
or order of a court having jurisdiction in the premises for
the appointment of a custodian, receiver, liquidator, trustee,
assignee, sequestrator, or other similar official in
bankruptcy or insolvency or receivership of any Specified
Party or of any substantial part of its property or for the
winding up or liquidation of its affairs, shall have been
entered, and such decree or order shall have remained in force
undischarged or unstayed for a period of 120 days; or
(d) failure on the part of the Seller, the Servicer
or DFS, as applicable, (i) to make any payment or deposit
(including any Transfer Deposit Amount or Adjustment Payment)
required by the terms of this Agreement or the Receivables
Contribution and Sale Agreement on or before the date
occurring five Business Days after the date such payment or
deposit is required to be made, or (ii) with respect to any
Series, to deliver a Distribution Date Statement within ten
Business Days after notice from the Trustee of such failure to
deliver such Distribution Date Statement, or (iii) in the case
of the Seller duly to observe or perform in any material
respect the covenant of the Seller set forth in Section 2.6(a)
with respect to a Receivable, which failure, in the case of
this clause (iii), has a material adverse effect on the
interests of the Holders of the Investor Certificates and
continues unremedied for a period of 60 days after the date on
which notice of such failure, requiring the same to be
remedied, shall have been given to the Seller by the Trustee
or any Enhancement Provider; provided, however, that an Early
Amortization Event pursuant to this clause (iii) shall not be
deemed to have occurred if the Seller shall have repurchased
the related Receivables or, if applicable, all of the
Receivables during such period in accordance with the
provisions of this Agreement; or (iv) duly to observe or
perform in any material respect any other covenants or
agreements of the Seller or the Servicer or DFS, as the case
may be, set forth in this Agreement or the Receivables
Contribution and Sale Agreement, which failure in the case of
this clause (iv) has a material adverse effect on the
interests of the Holders of the Investor Certificates and
continues unremedied for a period of 45 days after the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given to the Seller and the Servicer
by the Trustee or to the Seller and the Servicer and the
Trustee by any Enhancement Provider; or
(e) any representation or warranty made by DFS in the
Receivables Contribution and Sale Agreement or the Seller in
this Agreement or any information contained in a computer file
or microfiche or written list required to be delivered by the
Seller pursuant to Section 2.1, 2.5, 2.7 or 2.8, (i) shall
prove to have been incorrect in any material respect when made
or when delivered, and shall continue to be incorrect in any
material respect for a
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period of 60 days after the date on which written notice of
such failure, requiring the same to be remedied, shall have
been given to the Seller by the Trustee and (ii) as a result
of such incorrectness the interests of the Holders of the
Investor Certificates are materially and adversely affected
(excluding, however, the representation and warranty made by
the Seller pursuant to Section 2.3(j) if this Agreement
constitutes the grant of a perfected security interest in the
Receivables and the Collateral Security and the proceeds
thereof under the UCC as then in effect; provided, however,
that an Early Amortization Event shall not be deemed to have
occurred under this paragraph if the Seller has repurchased
the related Receivable or all such Receivables, if applicable,
during such period in accordance with the provisions of this
Agreement; or
(f) the Trust or the Seller shall become an
"investment company" within the meaning of the Investment
Company Act;
then, subject to applicable law, and after the applicable
grace period, if any, an amortization event (an "Early
Amortization Event") shall occur without any notice or other
action on the part of the Trustee, any Agent, the
Certificateholders or any other Beneficiary, immediately upon
the occurrence of such event.
SECTION 9.2. Additional Rights Upon the Occurrence of Certain
Events. (a) If an Insolvency Event occurs with respect to the Seller or the
Seller violates Section 2.6(a) for any reason, the Seller shall on the day such
Insolvency Event or violation occurs (the "Appointment Date") immediately cease
to transfer Receivables to the Trust and shall promptly give notice to the
Trustee of such Insolvency Event or violation and the Trust shall be deemed to
have terminated, subject to the liquidation, winding up and dissolution
procedures described below. Notwithstanding any cessation of the transfer to the
Trust of additional Receivables, Receivables transferred to the Trust prior to
the occurrence of such Insolvency Event or violation and Collections in respect
of such Receivables whenever created or accrued in respect of such Receivables,
shall continue to be a part of the Trust. Within 15 days of the date on which
the Trustee receives notice from the Seller of the Appointment Date, the Trustee
shall (i) publish a notice in an Authorized Newspaper that an Insolvency Event
or violation has occurred and that the Trustee intends to sell, dispose of or
otherwise liquidate the Receivables on commercially reasonable terms and in a
commercially reasonable manner and (ii) give notice to Investor
Certificateholders describing the provisions of this Section and requesting
instructions from such Holders. Unless the Trustee shall have received
instructions within 90 days from the date notice pursuant to clause (ii) above
is first given from (x) Holders of Investor Certificates evidencing more than
50% of the aggregate outstanding principal amount of each Series or, with
respect to any Series with two or more Classes, of each Class, to the effect
that such Investor Certificateholders disapprove of such sale, disposition or
liquidation of the Receivables and wish to continue having Receivables
transferred to the Trust as before such Insolvency Event or violation, and (y)
each Holder of a Supplemental Certificate to such effect, then the Trustee shall
promptly sell, dispose of or
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otherwise liquidate the Receivables, or cause to be sold, disposed of or
otherwise liquidated, in a commercially reasonable manner and on commercially
reasonable terms, which shall include the solicitation of competitive bids,
provided that if such sale, disposition or liquidation is being made solely on
account of the Seller's violation of Section 2.6(a), then the Trustee shall
effect such sale, disposition or liquidation, or cause such sale, disposition or
liquidation to be effected, only if the net proceeds of such sale, disposition
or liquidation, applied in accordance with Section 9.2(b), shall be sufficient
to pay accrued and unpaid interest on each Series of Certificates plus the
excess of the outstanding principal balance of each Series of Certificates over
the unreimbursed investor charge-offs, if applicable, for such Series. The
Trustee may obtain and conclusively rely upon a prior determination from any
applicable conservator, receiver or liquidator that the terms and manner of any
proposed sale, disposition or liquidation are commercially reasonable. The
provisions of Sections 9.1 and 9.2 shall not be deemed to be mutually exclusive.
(b) The proceeds from the sale, disposition or liquidation of
the Receivables pursuant to paragraph (a), net of all reasonable expenses
incurred by the Trustee in connection with such sale, liquidation or other
disposition, which shall be paid to the Trustee from such proceeds ("Insolvency
Proceeds") shall be immediately deposited in the Collection Account. The Trustee
shall determine conclusively the amount of the Insolvency Proceeds which are
deemed to be Non-Principal Receivables and Principal Receivables. The Insolvency
Proceeds shall be allocated and distributed to Investor Certificateholders in
accordance with Article IV and the terms of each Supplement and the Trust shall
terminate immediately thereafter.
ARTICLE X
Servicer Defaults
SECTION 10.1. Servicer Defaults. If any one of the following
events (a "Servicer Default") shall occur and be continuing with respect to the
Servicer:
(a) any failure by the Servicer to make any payment, transfer
or deposit or to give instructions or to give notice to the Trustee to make any
payment, transfer or deposit or to take any action under any Enhancement
Agreement on or before the date such payment, transfer or deposit or such
instruction or notice is required to be made or given, as the case may be, under
the terms of this Agreement, which failure is not cured within five Business
Days after notice of such failure from the Trustee to the Servicer;
(b) failure on the part of the Servicer duly to observe or
perform its covenant not to create any Lien on any Receivable which failure has
a material adverse effect on the Certificateholders and which continues
unremedied for a period of sixty (60) days after written notice to it of such
failure; provided, however, that a "Servicer Default" shall not be deemed to
have occurred if the Seller or the Servicer shall have repurchased the related
Receivables or, if applicable, all of the Receivables during such period in
accordance with the provisions of this Agreement;
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(c) failure on the part of the Servicer duly to observe or
perform any covenants or agreements of the Servicer set forth in this Agreement
(other than with respect to those specified in clause (a) or (b) above and with
respect to clauses (viii), (ix) and (x) under Section 3.3(a) hereof, to the
extent the terms of Section 3.3(c) hereof have been complied with) which failure
has a material adverse effect on the Certificateholders and which continues
unremedied for a period of thirty (30) days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Trustee;
(d) any representation, warranty or certification made by the
Servicer in this Agreement or in any certificate delivered pursuant to this
Agreement shall prove to have been incorrect when made, which has a material
adverse effect on the rights of the Investor Certificateholders of any Series
and which material adverse effect continues for a period of 60 days after the
date on which written notice thereof, requiring the same to be remedied, shall
have been given to the Servicer by the Trustee; provided, however, that a
"Servicer Default" shall not be deemed to have occurred if the Seller or the
Servicer shall have repurchased the related Receivables or, if applicable, all
of such Receivables during such period in accordance with the provisions of this
Agreement;
(e) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator or other similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Servicer or of or
relating to all or substantially all of its property, or a decree or order of a
court or agency or supervisory authority having jurisdiction in the premises for
the appointment of a conservator or receiver or liquidator or other similar
official in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period of sixty
days; or the Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make any assignment
for the benefit of its creditors or voluntarily suspend payment of its
obligations;
then, in the event of any Servicer Default, so long as the Servicer Default
shall not have been remedied, the Trustee, by notice then given in writing to
the Servicer (a "Termination Notice"), may terminate all but not less than all
of the rights and obligations (other than its obligations that have accrued up
to the time of such termination) of the Servicer as Servicer under this
Agreement and in and to the Receivables and the proceeds thereof. After receipt
by the Servicer of a Termination Notice, and on the date that a Successor
Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all
authority and power of the Servicer under this Agreement shall pass to and be
vested in a Successor Servicer (a "Service Transfer") and, without limitation,
the Trustee is hereby authorized and empowered (upon the failure of the Servicer
to cooperate) to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, all documents and other instruments upon the
failure of the
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Servicer to execute or deliver such documents or instruments, and to do and
accomplish all other acts or things necessary or appropriate to effect the
purposes of such Service Transfer; provided that in no event shall the Servicer
incur any liability for any such action by the Trustee. The Servicer agrees to
cooperate with the Trustee and such Successor Servicer in effecting the
termination of the responsibilities and rights of the Servicer to conduct
servicing hereunder, including the transfer to such Successor Servicer of all
authority of the Servicer to service the Receivables provided for under this
Agreement, including all authority over all Collections which shall on the date
of transfer be held by the Servicer for deposit, or which have been deposited by
the Servicer, in the Collection Account, or which shall thereafter be received
with respect to the Receivables, and in assisting the Successor Servicer. The
Servicer shall promptly transfer its electronic records relating to the
Receivables to the Successor Servicer in such electronic form as the Successor
Servicer may reasonably request and shall promptly transfer to the Successor
Servicer all other records, correspondence and documents necessary for the
continued servicing of the Receivables in the manner and at such times as the
Successor Servicer shall reasonably request. To the extent that compliance with
this Section 10.1 shall require the Servicer to disclose to the Successor
Servicer information of any kind which the Servicer reasonably deems to be
confidential, the Successor Servicer shall be required to enter into such
customary licensing and confidentiality agreements as the Servicer shall deem
necessary to protect its interest.
Notwithstanding the foregoing, a delay in or failure of
performance under Section 10.1(a) for a period of 10 Business Days or under
Section 10.1(b), (c) or (d) for a period of 60 Business Days, shall not
constitute a Servicer Default if such delay or failure could not be prevented by
the exercise of reasonable diligence by the Servicer and such delay or failure
was caused by an act of God or the public enemy, acts of declared or undeclared
war, public disorder, rebellion or sabotage, epidemics, landslides, lightning,
fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence
shall not relieve the Servicer from using its best efforts to perform its
obligations in a timely manner in accordance with the terms of this Agreement,
and the Servicer shall provide the Trustee, any Agents, any Enhancement
Providers, the Seller and the Certificateholders with an Officers' Certificate
giving prompt notice of such failure or delay by it, together with a description
of its efforts so to perform its obligations. The Servicer shall immediately
notify the Trustee in writing of any Servicer Default.
SECTION 10.2. Trustee to Act; Appointment of Successor. (a) On
and after the receipt by the Servicer of a Termination Notice pursuant to
Section 10.1, the Servicer shall continue to perform all servicing functions
under this Agreement until the date specified in the Termination Notice or
otherwise specified by the Trustee in writing or, if no such date is specified
in such Termination Notice, or as otherwise specified by the Trustee, until a
date mutually agreed upon by the Servicer and Trustee. The Trustee shall as
promptly as possible after the giving of a Termination Notice appoint an
Eligible Servicer as a successor servicer (the "Successor Servicer"), subject to
the consent of any Enhancement Providers and any Agents, which consent shall not
be unreasonably withheld, and such Successor Servicer shall accept its
appointment by a written assumption in a form acceptable to the Trustee. In the
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event that a Successor Servicer has not been appointed or has not accepted its
appointment at the time when the Servicer ceases to act as Servicer, the Trustee
without further action shall automatically be appointed the Successor Servicer.
The Trustee may delegate any of its servicing obligations to an affiliate or
agent in accordance with Sections 3.1 and 8.7. Notwithstanding the above, the
Trustee shall, if it is legally unable so to act, petition a court of competent
jurisdiction to appoint any established institution having a net worth of not
less than $100,000,000 and whose regular business includes the servicing of
wholesale receivables as the Successor Servicer hereunder. The Trustee shall
promptly give notice to the Rating Agencies, any Enhancement Providers, any
Agents and the Certificateholders upon the appointment of a Successor Servicer.
(b) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing functions
under this Agreement and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof (except that the Successor Servicer shall not be liable for
any liabilities incurred by the predecessor Servicer), and all references in
this Agreement to the Servicer shall be deemed to refer to the Successor
Servicer, except for references in Sections 3.3 (as it relates to the Initial
Servicer) and 8.4 (exclusive of indemnification for acts, omissions, alleged
acts and alleged omissions that constitute fraud, gross negligence, breach of
fiduciary duty or wilful misconduct by the Successor Servicer) and 11.5, which
shall continue to refer to the Initial Servicer. Any Successor Servicer, by its
acceptance of its appointment, shall automatically agree to be bound by the
terms and provisions of any Enhancement Agreement.
(c) In connection with any Termination Notice, the Trustee
shall review any bids which it obtains from Eligible Servicers and shall be
permitted to appoint any Eligible Servicer submitting such a bid as a Successor
Servicer for servicing compensation not in excess of the Servicing Fee (provided
that if all such bids exceed the Servicing Fee the Seller at its own expense
shall pay when due the amount of any compensation in excess of the Servicing
Fee); provided, however, that the Seller shall be responsible for payment of the
Seller's portion of the Servicing Fee as determined pursuant to this Agreement
and all other amounts in excess of the Investors' Servicing Fee, and that no
such monthly compensation paid out of Collections shall be in excess of the
Investors' Servicing Fee permitted to the Servicer. The Holders of the Seller's
Certificates agree that if DFS (or any Successor Servicer) is terminated as
Servicer hereunder, the portion of Collections to be paid to the Seller shall be
reduced by an amount sufficient to pay Seller's share of the compensation of the
Successor Servicer.
(d) All authority and power granted to the Successor Servicer
under this Agreement shall automatically cease and terminate upon termination of
the Trust pursuant to Section 12.1, and shall pass to and be vested in the
Seller and, without limitation, the Seller is hereby authorized and empowered to
execute and deliver, on behalf of the Successor Servicer, as attorney-in-fact or
otherwise, all documents and other instruments, and to do and accomplish all
other acts or things necessary or appropriate to effect the purposes of such
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transfer of servicing rights. The Successor Servicer agrees to cooperate with
the Seller in effecting the termination of the responsibilities and rights of
the Successor Servicer to conduct servicing on the Receivables. The Successor
Servicer, at the expense of the Seller, shall transfer its electronic records
relating to the Receivables to the Seller in such electronic form as the Seller
may reasonably request and shall transfer all other records, correspondence and
documents to the Seller in the manner and at such times as the Seller shall
reasonably request. To the extent that compliance with this Section 10.2 shall
require the Successor Servicer to disclose to the Seller information of any kind
which the Successor Servicer deems to be confidential, the Seller shall be
required to enter into such customary licensing and confidentiality agreements
as the Successor Servicer shall deem necessary to protect its interests.
All reasonable costs and expenses (including attorneys' fees)
incurred in connection with transferring the Receivables and the other Trust
Assets to the Successor Servicer and amending this Agreement to reflect such
succession as Successor Servicer pursuant to this Article X shall be paid by the
Servicer (or, if the Trustee is the Successor Servicer, the initial Servicer)
upon presentation of reasonable documentation of such costs and expenses.
ARTICLE XI
The Trustee
SECTION 11.1. Duties of Trustee. (a) The Trustee, prior to the
occurrence of a Servicer Default of which a Responsible Officer of the Trustee
has knowledge and after the curing of all Servicer Defaults which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If a Servicer Default to the knowledge
of a Responsible Officer of the Trustee has occurred (which has not been cured
or waived), the Trustee shall exercise such of the rights and powers vested in
it by this Agreement and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they substantially conform to the requirements of this
Agreement.
(c) Subject to Section 11.1(a), no provision of this Agreement
shall be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own wilful misconduct; provided,
however, that:
(i) the Trustee shall not be personally liable for
an error of judgment made in good faith by a Responsible
Officer or Responsible Officers
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of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(ii) the Trustee shall not be charged with knowledge
of any Servicer Default or the failure by the Servicer to
comply with the obligations of the Servicer referred to in
Section 10.1(a) and (b) unless a Responsible Officer of the
Trustee obtains actual knowledge of such failure;
(iii) the Trustee shall not be charged with knowledge
of an Early Amortization Event (or the related Early
Amortization Period) unless a Responsible Officer of the
Trustee obtains actual knowledge thereof;
(iv) the Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken
by it in good faith in accordance with the direction of the
Holders of Investor Certificates relating to the time, method
or place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement or any Supplement; and
(v) prior to the occurrence of a Servicer Default of
which a Responsible Officer has knowledge, and after the
curing or waiver of such Servicer Defaults that may have
occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement
and any Supplements, the Trustee shall not be liable except
for the performance of such duties and obligations as shall be
specifically set forth in this Agreement and any Supplement,
no implied covenants or obligations shall be read into this
Agreement or any Supplement against the Trustee and, in the
absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and, if
specifically required to be furnished pursuant to any
provision of this Agreement or any Supplement, conforming to
the requirements of this Agreement or such Supplement.
(d) The Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability in the performance of any of
its duties hereunder or in the exercise of any of its rights or powers, if there
is reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of, any
obligations of the Servicer under this Agreement except during such time, if
any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Servicer in accordance with the terms of
this Agreement. Notwithstanding the prior
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sentence, the Trustee when acting as Successor Servicer, is still entitled to
indemnification under Sections 7.3 and 8.4.
(e) Except as expressly provided in this Agreement, the
Trustee shall have no power to vary the corpus of the Trust including the power
to (i) accept any substitute obligation for a Receivable initially assigned to
the Trust under Section 2.1 or 2.5, (ii) add any other investment, obligation or
security to the Trust or (iii) withdraw from the Trust any Receivables.
(f) In the event that the Transfer Agent and Registrar shall
fail to perform any obligation, duty or agreement in the manner or on the day
required to be performed by the Transfer Agent and Registrar, as the case may
be, under this Agreement, the Trustee shall be obligated promptly upon a
Responsible Officer of the Trustee obtaining actual knowledge of such failure to
perform such obligation, duty or agreement in the manner so required.
(g) If the Seller has agreed to transfer any of its wholesale
receivables (other than the Receivables) to another Person, then upon the
written request of the Seller, the Trustee shall enter into such intercreditor
agreements with the transferee of such receivables as are customary and
necessary to identify separately the rights of the Trustee and the Trust, on the
one hand, and such other Person, on the other hand, in the Seller's wholesale
receivables; provided, however, that the Trustee shall not be required to enter
into any intercreditor agreement which could, in the sole opinion of the
Trustee, adversely affect the interests of the Investor Certificateholders or
the Trustee and, upon the request of the Trustee, the Seller shall deliver an
Opinion of Counsel on any matters relating to such intercreditor agreement,
reasonably requested by the Trustee.
(h) Notwithstanding any other provision contained herein, the
Trustee is not acting as, and shall not be deemed to be, a fiduciary for any
Enhancement Provider in its capacity as such or as a Beneficiary, and the
Trustee's sole responsibility with respect to said parties shall be to perform
those duties with respect to said parties as are specifically set forth herein
and no implied duties or obligations shall be read into this Agreement against
the Trustee with respect to any such party.
SECTION 11.2. Certain Matters Affecting the Trustee. Except
as otherwise provided in Section 11.01:
(a) the Trustee may rely on and shall be protected in acting
on, or in refraining from acting in accord with, any resolution, Officers'
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been signed or
presented to it pursuant to this Agreement by the proper party or parties;
(b) the Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken
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or suffered or omitted by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(c) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to institute, conduct
or defend any litigation hereunder or in relation hereto, at the request, order
or direction of any of the Certificateholders, pursuant to the provisions of
this Agreement, unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; provided, however, that nothing
contained herein shall relieve the Trustee of the obligations, upon the
occurrence of a Servicer Default (which has not been cured or waived) of which a
Responsible Officer of the Trustee has knowledge, to exercise such of the rights
and powers vested in it by this Agreement or any Supplement, and to use the same
degree of care and skill in their exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs;
(d) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(e) the Trustee shall not be bound to make any investigation
into the facts of matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document believed by it to be genuine, unless requested so to do
by (i) Holders of Investor Certificates evidencing more than 25% of the
aggregate unpaid principal amount of all Investor Certificates (or, with respect
to any such matters that do not relate to all Series, 25% of the aggregate
unpaid principal amount of the Investor Certificates of all Series to which such
matters relate); provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation shall be, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of
this Agreement, the Trustee may require reasonable indemnity against such cost,
expense or liability as a condition to so proceeding. The reasonable expense of
every such examination shall be paid by the Servicer or, if paid by the Trustee,
shall be reimbursed by the Servicer upon demand;
(f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian, and the Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent, attorney or
custodian appointed with due care by it hereunder;
(g) except as may be required by Section 11.1(a) hereof, the
Trustee shall not be required to make any initial or periodic examination of any
documents or records related to the Receivables or the Accounts for the purpose
of establishing the presence or absence of defects, the compliance by the Seller
with its representations and warranties or for any other purpose; and
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(h) the right of the Trustee to perform any discretionary act
enumerated in this Agreement or any Supplement shall not be construed as a duty,
and the Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act.
SECTION 11.3. Trustee Not Liable for Recitals in Certificates.
The Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates (other than the certificate of
authentication on the Certificates). Except as set forth in Section 11.14, the
Trustee makes no representations as to the validity or sufficiency of this
Agreement or of the Certificates (other than the certificate of authentication
on the Certificates) or of any Receivable or related document or any security
interest of the Trust therein. The Trustee shall not be accountable for the use
or application by the Seller of any of the Certificates or of the proceeds of
such Certificates, or for the use or application of any funds paid to the Seller
in respect of the Receivables or deposited in or withdrawn from the Collection
Account or any Series Account.
SECTION 11.4. Trustee May Own Certificates. Subject to
compliance with subsection (a)(4)(i) of Rule 3a-7 of the Investment Company Act:
(x) the Trustee in its individual or any other capacity may become the owner or
pledgee of Investor Certificates and (y) the Trustee in its individual or any
other capacity may deal with the Seller and Servicer in banking and other
transactions with the same rights as it would have if it were not the Trustee.
SECTION 11.5. The Servicer to Pay Trustee's Fees and Expenses.
The Servicer covenants and agrees to pay to the Trustee from time to time, and
the Trustee shall be entitled to receive, reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in the execution of
the trust hereby created and in the exercise and performance of any of the power
and duties hereunder of the Trustee, and, subject to Section 8.4, the Servicer
shall pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee accordance with any
of the provisions of this Agreement (including the reasonable fees and expenses
of its agents, any co-trustee and counsel) except any such expense, disbursement
or advance as may arise from its negligence or bad faith and except as provided
in the second following sentence. The Servicer's covenants to pay the expenses,
disbursements and advances provided for in the preceding sentence shall survive
the resignation or removal of the Trustee and the termination of this Agreement.
If the Trustee is appointed Successor Servicer pursuant to Section 10.2, the
provisions of this Section 11.5 shall not apply to expenses, disbursements and
advances made or incurred by the Trustee in its capacity as Successor Servicer,
which shall be covered out of the Servicing Fee; provided, however, if such
expenses, disbursements and advances incurred by the Trustee are in amount in
excess of the Servicing Fee, such excess amount shall be paid in full to the
Trustee by DFS. To the extent, if any, that any Federal, state or local taxes
are payable by the Trust, such taxes shall be payable solely out of Trust Assets
an not out of the personal assets of the Trustee.
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SECTION 11.6. Eligibility Requirements for Trustee. The
Trustee hereunder shall at all times be a bank (a) organized and doing business
under the laws of the United States of America or any state thereof authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
Federal or state authority and (b) which is in compliance with subsection
(a)(4)(i) of Rule 3a-7 of the Investment Company Act. If such bank publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority then, for the purpose of
this Section 11.6, the combined capital and surplus of such bank shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 11.6, the Trustee
shall resign immediately in the manner and with the effect specified in Section
11.7.
SECTION 11.7. Resignation or Removal of Trustee. (a) The
Trustee may at any time resign and be discharged from the trust hereby created
by giving written notice thereof to the Seller and the Servicer. Upon receiving
such notice of resignation, the Seller shall promptly appoint a successor
trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
(b) The Servicer may remove the Trustee at any time and from
time to time by giving written notice of such removal to the Trustee if any of
the following events or circumstances occurs at any time (such notice to be sent
at least thirty days prior to the date of removal in the case of clause (vi)
below):
(i) the Trustee shall cease to be eligible in accordance
with Section 11.6 and shall fail to resign after
written request therefor by the Servicer; or
(ii) the Trustee shall be legally unable to act; or
(iii) the Trustee shall be adjudged a bankrupt or insolvent;
or
(iv) a receiver of the Trustee or of its property shall be
appointed; or
(v) any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation; or
(vi) the Trustee shall fail to perform, as determined by the
Servicer in its sole discretion, any of the Trustee's
duties or
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responsibilities under this Agreement or any
Supplement in a manner and at a cost that is
satisfactory to the Servicer.
The Servicer shall promptly appoint a successor trustee by written instrument,
in duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee.
(c) Any resignation or removal of the Trustee and appointment
of successor trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee as
provided in Section 11.8 hereof.
SECTION 11.8. Successor Trustee. (a) Any successor trustee
appointed as provided in Section 11.7 hereof shall execute, acknowledge and
deliver to the Seller and to its predecessor Trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with like
effect as if originally named as Trustee herein. The predecessor Trustee shall
deliver to the successor trustee all documents or copies thereof, at the expense
of the Servicer, and statements held by it hereunder; and the Seller and the
predecessor Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor trustee all such rights, power, duties and
obligations. The Servicer shall immediately give notice to each Rating Agency
and the Certificateholders upon the appointment of a successor trustee.
(b) No successor trustee shall accept appointment as provided
in this Section 11.8 unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 11.6 hereof.
SECTION 11.9. Merger or Consolidation of Trustee. Any Person
into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
all or substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such corporation shall be
eligible under the provisions of Section 11.6 hereof, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 11.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust may at the time be located, the Trustee shall have the power and
may execute and deliver all instruments to appoint one or more Persons to act as
a co-trustee or co-trustees, or separate trustee or separate trustees, of all or
any part of the Trust, and to vest in such Person or Persons, in such
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capacity and for the benefit of the Certificateholders, such title to the Trust,
or any part thereof, and, subject to the other provisions of this Section 11.10,
such powers, duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
11.6 and no notice to Certificateholders of the appointment of any co-trustee or
separate trustee shall be required under Section 11.8 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and
such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in
such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be
performed (whether as Trustee hereunder or as successor to the
Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding
of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of
the Trustee;
(ii) no trustee hereunder shall be personally liable
by reason of any act or omission of any other trustee
hereunder; and
(iii) the Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article XI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee and a
copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign
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or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
SECTION 11.11. Tax Returns. In the event the Trust shall be
required to file tax returns, the Servicer shall prepare, or shall cause to be
prepared, and shall deliver, or shall cause to be delivered, to the Trustee no
later than five Business Days immediately preceding any applicable due date; the
Trustee shall promptly execute, to the extent it is the appropriate person to so
execute, file any such tax returns to be filed by the Trust and deliver such
executed returns to the Servicer, and such returns shall be filed by the
Servicer. The Servicer in accordance with the terms of the Supplements shall
also prepare or shall cause to be prepared all tax information required by law
to be distributed to the Investor Certificateholders. The Trustee shall
distribute or cause to be distributed such information to the Investor
Certificateholders. The Trustee, upon request, shall furnish the Servicer with
all such information known to the Trustee as may be reasonably required in
connection with the preparation of all tax returns of the Trust or in connection
with the distribution of tax information to the Investor Certificateholders.
SECTION 11.12. Trustee May Enforce Claims Without Possession
of Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Certificateholders in respect of which such judgment has
been obtained.
SECTION 11.13. Suits for Enforcement. If a Servicer Default
shall occur and be continuing, the Trustee, in its discretion may, subject to
the provisions of Section 10.1, proceed to protect and enforce its rights and
the rights of the Certificateholders under this Agreement by suit, action or
proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this Agreement or in aid
of the execution of any power granted in this Agreement or for the enforcement
of any other legal, equitable or other remedy as the Trustee, being advised by
counsel, shall deem most effectual to protect and enforce any of the rights of
the Trustee or the Certificateholders. Nothing herein contained shall be deemed
to authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Certificateholder any plan of reorganization, arrangement, adjustment or
composition affecting the Certificates or the rights of any Holder thereof, or
authorize the Trustee to vote in respect of the claim of any Certificateholder
in any such proceeding.
SECTION 11.14. Representations and Warranties of Trustee. The
Trustee represents and warrants that:
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(i) the Trustee is a banking corporation organized,
existing and in good standing under the laws of the State of
New York;
(ii) the Trustee has full power, authority and right
to execute, deliver and perform this Agreement, and has taken
all necessary action to authorize the execution, delivery and
performance by it of this Agreement; and
(iii) this Agreement has been duly executed and
delivered by the Trustee.
SECTION 11.15. Maintenance of Office or Agency. The Trustee
shall maintain at its expense in the Borough of Manhattan, The City of New York,
an office or offices or agency or agencies where notices and demands to or upon
the Trustee in respect of the Certificates and this Agreement may be served. The
Trustee initially designates its Corporate Trust Office as its office such
purposes in New York. The Trustee shall give prompt written notice to the
Servicer and to Holders of the Certificates of a change in the location of the
Certificate Register or any such office or agency. So long as any of the
Certificates are listed on the Luxembourg Stock Exchange and such stock exchange
shall so require, the Trustee shall maintain an additional Paying Agent in
Luxembourg.
ARTICLE XII
Termination
SECTION 12.1. Termination of Trust. The Trust and the
respective obligations and responsibilities of the Seller, the Servicer and the
Trustee created hereby (other than the obligation of the Trustee to make
payments to Investor Certificateholders as hereafter set forth) shall terminate,
except with respect to the duties described in Sections 7.3, 8.4, 11.5 and
12.2(b), upon the earlier of (i) December 31, 2014 (the "Final Maturity Date"),
(ii) the day following the Distribution Date on which the Invested Amount for
all Series is zero, but only if the Seller has notified the Trustee that it
wishes the Trust to terminate upon such event and (iii) the time provided in
Section 9.2(b) (the "Trust Termination Date"). The Servicer shall give the
Rating Agencies prompt notice of the termination of the Trust.
SECTION 12.2. Final Distribution. (a) The Servicer shall give
the Trustee notice of the Distribution Date on which the Investor
Certificateholders of any Series or Class may surrender their Investor
Certificates for payment of the final distribution on and cancellation of such
Investor Certificates promptly after the Servicer has determined that a final
distribution shall occur. Such notice shall be accompanied by an Officer's
Certificate setting forth the information specified in Section 3.5 covering the
period during the then-current calendar year through the date of such notice.
Upon at least one Business Day's prior written notice by the Servicer, not later
than the fifth day of the month in which the final distribution in respect of
such Series or Class is payable to Investor Certificateholders, the Trustee
shall provide notice to Investor Certificateholders of such Series or Class
specifying
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(i) the date upon which final payment of such Series or Class shall be made upon
presentation and surrender of Investor Certificates of such Series or Class at
the office or offices therein designated, (ii) the amount of any such final
payment and (iii) that the Record Date otherwise applicable to such payment date
is not applicable, payments being made only upon presentation and surrender of
such Investor Certificates at the office or office therein specified. The
Trustee shall give such notice to the Transfer Agent and Registrar and the
Rating Agencies at the time such notice is given to Investor Certificateholders.
Notice of the final distribution with respect to any Class of
Certificates listed on the Luxembourg Stock Exchange (so long as the rules
thereof so require) shall be published by the Trustee once in an Authorized
European Newspaper.
(b) Notwithstanding a final distribution to the Investor
Certificateholders of any Series or Class (or the termination of the Trust),
except as otherwise provided in this paragraph, all funds then on deposit in the
Collection Account and any Series Account allocated to such Investor
Certificateholders shall continue to be held in trust for the benefit of such
Investor Certificateholders and the Trustee shall pay such funds to such
Investor Certificateholders upon surrender of their Investor Certificates (and
any excess shall be paid in accordance with the terms of any Enhancement
Agreement). In the event that all such Investor Certificateholders shall not
surrender their Investor Certificates for cancellation within six months after
the date specified in the notice from the Trustee described in paragraph (a),
the Trustee shall give a second notice to the remaining such Investor
Certificateholders to surrender their Investor Certificates for cancellation and
receive the final distribution with respect thereto. If within one year after
the second notice all such Investor Certificates shall not have been surrendered
for cancellation, the Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact the remaining such Investor
Certificateholders concerning surrender of their Investor Certificates, and the
cost thereof shall be paid out of the funds in the Collection Account or any
Series Account held for the benefit of such Investor Certificateholders. The
Trustee shall pay to the Seller any monies held by it for the payment of
principal or interest with respect to a Series that remain unclaimed for two
years after the date of the first notice of final distribution with respect to
such Series. After such payment to the Seller, Investor Certificateholders
entitled to the money must look to the Seller for payment as general creditors
unless an applicable abandoned property law designates another Person.
(c) In the event that the Invested Amount with respect to any
Series is greater than zero on its Termination Date (after giving effect to
deposits and distributions otherwise to be made on such Termination Date), the
Trustee shall sell or cause to be sold on such Termination Date Receivables (or
interests therein) in an amount equal to the sum of (i) the Invested Amount with
respect to such Series on such Termination Date (after giving effect to such
deposits and distributions) plus (ii) accrued and unpaid interest with respect
to such Series; provided, however, that in no event shall such amount exceed the
lesser of (x) such Series' Allocation Percentage (as defined in the Series
Supplements and for the Collection Period in which such Termination Date occurs)
of the aggregate unpaid balance of the
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Principal Receivables on such Termination Date and (y) 110% of such Invested
Amount. The proceeds, net of all reasonable expenses incurred by the Trustee in
connection with such sale, which shall be paid to the Trustee from such proceeds
(the "Termination Proceeds") from such sale shall be immediately deposited into
the Collection Account for the benefit of the Investor Certificateholders of
such Series. The Termination Proceeds shall be allocated and distributed to the
Investor Certificateholders of such Series in accordance with the terms of the
applicable Supplement.
SECTION 12.3. Seller's Termination Rights. Upon the
termination of the Trust pursuant to Section 12.1, and the surrender of the
Seller's Certificates the Trustee shall sell, assign and convey to the Seller or
its designee, without recourse, representation or warranty, all right, title and
interest of the Trust in the Receivables, whether then existing or thereafter
created, all Collateral Security with respect thereto, all monies due or to
become due and all amounts received with respect thereto and all proceeds
thereof, except for amounts held by the Trustee pursuant to Section 12.2(b), and
all of the Seller's rights, remedies, powers and privileges with respect to such
Receivables under the Receivables Contribution and Sale Agreement. The Trustee
shall execute and deliver such instruments of transfer and assignment, in each
case without recourse, representation or warranty, as shall be reasonably
requested by the Seller to vest in the Seller or its designee all right, title
and interest which the Trust had in all such property.
ARTICLE XIII
Miscellaneous Provisions
SECTION 13.1. Amendment. (a) This Agreement or any Supplement
may be amended from time to time (including in connection with the issuance of a
Supplemental Certificate) by the Servicer, the Seller and the Trustee without
the consent of any of the Certificateholders, but with prior notice to each
Rating Agency, provided that such amendment shall not, as evidenced by an
Officer's Certificate of the Seller, addressed and delivered to the Trustee,
adversely affect in any material respect the interests of any Investor
Certificateholder. In addition, this Agreement and any Supplement may be amended
by the Servicer and the Trustee at the direction of the Seller without the
consent of any of the Certificateholders: (1) to add, modify or eliminate such
provisions as may be necessary or advisable in order to enable the Seller or any
of its Affiliates (including Deutsche Bank AG) to minimize or avoid capital
charges under any applicable law, rule, regulation or guideline relating to
regulatory or risk-based capital, or (2) to enable all or a portion of the Trust
to qualify as a partnership for federal income tax purposes under applicable
regulations on the classification of entities as partnerships or corporations
under the Internal Revenue Code, and to the extent that such regulations
eliminate or modify the need therefor, to modify or eliminate existing
provisions of this Agreement or any Supplement relating to the intended
availability of partnership treatment of the Trust for federal income tax
purposes, or (3) to enable all or a portion of the Trust to qualify as, and to
permit an election to be made to cause the Trust to be treated as, a "financial
asset securitization investment trust," as described in the provisions of the
"Small
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Business Job Protection Act of 1996," H.R. 3448 (and, in connection with any
such election, to modify or eliminate existing provisions of this Agreement or
any Supplement relating to the intended Federal income tax treatment of the
Certificates and the Trust in the absence of such election, which may include
elimination of the sale of Receivables, upon the occurrence of an insolvency
event with respect to Seller, pursuant to the Agreement and certain provisions
of the Agreement relating to the liability of the Seller), or (4) to enable the
Seller or any of its Affiliates to comply with or obtain more favorable
treatment under any law or regulation or any accounting rule or principle, so
long as in each case the Rating Agency Condition has been satisfied and, in the
case of (2) or (3), the Seller and the Trustee have received an Opinion of
Counsel to the effect that such amendment shall not adversely affect the
characterization of the Investor Certificates of any outstanding Series or Class
as debt or as interests in a partnership. Notwithstanding anything contained
herein to the contrary, the Trustee, with the consent of any Enhancement
Providers, may at any time and from time to time amend, modify or supplement the
form of Distribution Date Statement. Notwithstanding anything contained herein
to the contrary, this Agreement or any Supplement may be amended from time to
time by the Servicer, the Seller and the Trustee without the consent of any of
the Certificateholders, but only upon satisfaction of the Rating Agency
Condition, to change in any manner the treatment of Delayed Funding Receivables
under this Agreement or any such Supplement. In addition, this Agreement or any
Supplement may be amended from time to time by the Seller, the Servicer and the
Trustee, without the consent of any Certificateholder, in order to make changes
required in order to obtain a listing of any Class of any Series on the
Luxembourg Stock Exchange.
(b) In the event that Section 13.1(a) is not then applicable,
this Agreement or any Supplement may be amended from time to time (including in
connection with the issuance of a Supplemental Certificate) by the Servicer, the
Seller and the Trustee, with the consent of the Holders of Investor Certificates
evidencing more than 50% of the aggregate unpaid principal amount of the
Investor Certificates of all adversely affected Series and with prior notice to
each Rating Agency, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or any
Supplement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, any distributions required to be made to any
Investor Certificateholders or deposits of amounts to be so distributed or the
amount available under any Enhancement without the consent of each affected
Investor Certificateholder, (ii) change the definition of or the manner of
calculating the interest of any Investor Certificateholder without the consent
of each affected Investor Certificateholder, (iii) reduce the aforesaid
percentage required to consent to any such amendment without the consent of each
Investor Certificateholder or (iv) adversely affect the rating of any Series or
Class by any Rating Agency without the consent of all of the Holders of the
Investor Certificates of such Series or Class. Any amendment to be effected
pursuant to this paragraph shall be deemed to adversely affect all outstanding
Series, other than any Series with respect to which such action shall not, as
evidenced by an Officer's Certificate of the Seller, addressed and delivered to
the Trustee, adversely affect in any material respect the interests of any
Investor Certificateholder of such Series. The Trustee may, but shall not be
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obligated to, enter into any such amendment which affects the Trustee's rights,
duties or immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or
consent (other than an amendment pursuant to paragraph (a)), the Trustee shall
furnish notification of the substance of such amendment to each Investor
Certificateholder, and the Servicer shall furnish notification of the substance
of such amendment to each Rating Agency, each Agent and each Enhancement
Provider.
(d) It shall not be necessary for the consent of Investor
Certificateholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Investor Certificateholders shall be
subject to such reasonable requirements as the Trustee may prescribe.
(e) Notwithstanding anything in this Section to the contrary,
no amendment may be made to this Agreement or any Supplement which would
adversely affect in any material respect the interests of any Enhancement
Provider without the written consent of such Enhancement Provider.
(f) Any Supplement executed in accordance with the provisions
of Section 6.3 shall not be considered an amendment to this Agreement for the
purposes of this Section.
(g) Prior to the execution of any amendment to this Agreement,
the Trustee shall be entitled to receive and rely upon (i) an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement and that all conditions precedent to such execution and delivery have
been satisfied and (ii) the Opinion of Counsel required by Section 13.2(d). The
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Trustee's own rights, duties or immunities under this Agreement.
SECTION 13.2. Protection of Right, Title and Interest to
Trust. (a) The Servicer shall cause this Agreement, all amendments hereto and/or
all financing statements and continuation statements and any other necessary
documents covering the Certificateholders' and the Trustee's right, title and
interest in and to the Trust Assets to be promptly recorded, registered and
filed, and at all times to be kept recorded, registered and filed, all in such
manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of the Certificateholders and the Trustee
hereunder to all property comprising the Trust. The Servicer shall deliver to
the Trustee file-stamped copies of, or filing receipts for, any document
recorded, registered or filed as provided above, as soon as available following
such recording, registration or filing. The Seller shall cooperate fully with
the
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Servicer in connection with the obligations set forth above and shall execute
any and all documents reasonably required to fulfill the intent of this Section
13.2(a).
(b) Within 30 days after the Seller or the Servicer makes any
change in its name, identity or corporate structure which would make any
financing statement or continuation statement filed in accordance with Section
13.2(a) seriously misleading within the meaning of Section 9-402(7) of the UCC
as in effect in the applicable jurisdiction (including as a result of a
Designated Affiliate Transfer), the Seller shall give the Trustee and any Agent
notice of any such change and shall file such financing statements or amendments
as may be necessary to continue the perfection of the Trust's security interest
in the Receivables and the proceeds thereof.
(c) The Seller and the Servicer shall give the Trustee and any
Agent prompt written notice of any relocation of any office from which it
services Receivables or keeps Records concerning the Receivables or of its
principal executive office if, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement and shall file such financing statements or amendments as may be
necessary to perfect or to continue the perfection of the Trust's security
interest in the Receivables and the proceeds thereof. The Seller and the
Servicer shall at all times maintain each office from which it services
Receivables and its principal executive office within the United States of
America.
(d) The Servicer shall deliver to the Trustee, any Agent and
any Enhancement Provider, upon the execution and delivery of each amendment of
this Agreement or any Supplement, an Opinion of Counsel to the effect specified
in Exhibit G-1.
SECTION 13.3. Limitation on Rights of Certificateholders. (a)
The death or incapacity of any Certificateholder shall not operate to terminate
this Agreement or the Trust, nor shall such death or incapacity entitle such
Certificateholders' legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding-up of the Trust, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
(b) No Investor Certificateholder shall have any right to vote
(except as expressly provided in this Agreement) or in any manner otherwise
control the operation and management of the Trust, or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Certificates, be construed so as to constitute the Investor
Certificateholders from time to time as partners or members of an association,
nor shall any Investor Certificateholder be under any liability to any third
person by reason of any action taken by the parties to this Agreement pursuant
to any provision hereof.
(c) No Investor Certificateholder shall have any right by
virtue of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Investor Certificateholder
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previously shall have made, and unless the Holders of Investor Certificates
evidencing more than 50% of the aggregate unpaid principal amount of all
Investor Certificates (or, with respect to any such action, suit or proceeding
that does not relate to all Series, 50% of the aggregate unpaid principal amount
of the Investor Certificates of all Series to which such action, suit or
proceeding relates) shall have made, a request to the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after such request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by each Investor
Certificateholder with every other Investor Certificateholder and the Trustee,
that no one or more Investor Certificateholders shall have any right in any
manner whatever by virtue or by availing itself or themselves of any provisions
of this Agreement to affect, disturb or prejudice the rights of the holders of
any other of the Investor Certificates, or to obtain or seek to obtain priority
over or preference to any other such Investor Certificateholder, or to enforce
any right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Investor Certificateholders except as
otherwise expressly provided in this Agreement. For the protection and
enforcement of the provisions of this Section, each and every Investor
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 13.4. No Petition. The Servicer, DFS (if it is no
longer the Servicer) and the Trustee (not in its individual capacity but solely
as Trustee), by entering into this Agreement, each Investor Certificateholder,
by accepting an Investor Certificate or an interest in an Investor Certificate,
each holder of a Supplemental Certificate by accepting a Supplemental
Certificate and any Successor Servicer and each other Beneficiary and each
Certificate Owner, by accepting the benefits of this Agreement, hereby covenants
and agrees or is deemed to covenant and agree, that they shall not at any time
institute against, or encourage or solicit any Person to institute against,
Deutsche FRLP, the general partner of Deutsche FRLP or the Trust, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States Federal or state bankruptcy or
similar law.
SECTION 13.5. GOVERNING LAW. THIS AGREEMENT AND THE
CERTIFICATES 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 13.6. Notices. (a) All demands, notices, instructions,
directions and communications (collectively, "Notices") under this Agreement
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, to (i) in
the case Deutsche FRLP, 655 Maryville Centre Drive,
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St. Louis, Missouri 63141, Attention: Secretary, (ii) in the case of DFS, 655
Maryville Centre Drive, St. Louis, Missouri 63141, Attention: Secretary, (iii)
in the case of the Trustee, 450 West 33rd Street, 14th Floor, New York, New York
10001, Attention: Capital Markets Fiduciary Services, Deutsche Floorplan
Receivables, (iv) in the case of Standard & Poor's, 55 Water Street, 40th Floor,
New York, New York 10041, Attention: Asset Backed Surveillance Department, (v)
in the case of Moody's, 99 Church Street, New York, New York 10007, Attention:
Structured Finance Surveillance, (vi) in the case of Fitch, One State Street
Plaza, New York, New York 10004, or, as to each party and Rating Agency, at such
other address as shall be designated by such party or Rating Agency in a written
notice to each other party.
(b) Any Notice required or permitted to be given to a Holder
of Registered Certificates shall be given by first-class mail, postage prepaid,
at the address of such Holder as shown in the Certificate Register. Any Notice
so mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Investor Certificateholder
receives such Notice.
SECTION 13.7. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall for
any reason whatsoever be held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of the
Certificates or rights of the Certificateholders.
SECTION 13.8. Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Section 8.2, this Agreement may
not be assigned by the Servicer.
SECTION 13.9. Certificates Nonassessable and Fully Paid. It is
the intention of the parties to this Agreement that the Investor
Certificateholders shall not be personally liable for obligations of the Trust,
that the interests in the Trust represented by the Investor Certificates shall
be nonassessable for any losses or expenses of the Trust or for any reason
whatsoever and that Investor Certificates upon authentication thereof by the
Trustee are and shall be deemed fully paid.
SECTION 13.10. Further Assurances. The Seller and the Servicer
agree to do and perform, from time to time, any and all acts and to execute any
and all further instruments required or reasonably requested by the Trustee more
fully to effect the purposes of this Agreement, including the execution of any
financing statements or continuation statements relating to the Receivables for
filing under the provisions of the UCC of any applicable jurisdiction.
SECTION 13.11. No Waiver, Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trustee or the
Certificateholders, any right, remedy, power or privilege under this Agreement
shall operate as a waiver thereof; nor shall
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any single or partial exercise of any right, remedy, power or privilege under
this Agreement preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights, remedies, powers and
privileges provided under this Agreement are cumulative and not exhaustive of
any rights, remedies, powers and privileges provided by law.
SECTION 13.12. Counterparts. This Agreement may be executed in
two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
SECTION 13.13. Third-Party Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the parties hereto, the
Certificateholders and the other Beneficiaries and their respective successors
and permitted assigns. Except as otherwise expressly provided in this Agreement,
no other Person shall have any right or obligation hereunder.
SECTION 13.14. Actions by Certificateholders. Any request,
demand, authorization, direction, notice, consent, waiver or other act by a
Certificateholder shall bind such Certificateholder and every subsequent holder
of any Certificate issued upon the registration of transfer of the Certificates
of such Certificateholder or in exchange therefor or in lieu thereof in respect
of anything done or omitted to be done by the Trustee or the Servicer in
reliance thereon, whether or not notation of such action is made upon any such
Certificate.
SECTION 13.15. Rule 144A Information. For so long as any of
the Investor Certificates of any Series or Class are "restricted securities"
within the meaning of Rule 144(a)(3) under the Act, each of the Seller, the
Trustee, the Servicer and any Enhancement Providers agree to cooperate with each
other to provide to any Investor Certificateholders of such Series or Class and
to any prospective purchaser of Investor Certificates designated by such an
Investor Certificateholder, upon the request of such Investor Certificateholder
or prospective purchaser, any information required to be provided to such holder
or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act.
SECTION 13.16. Action by Trustee. Upon any application or
request by the Seller or Servicer to the Trustee to take any action under any
provision under this Agreement, the Seller or Servicer, as the case may be,
shall furnish to the Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such Counsel all such conditions precedent, if any, have been
complied with. The Trustee shall be entitled to conclusively rely on the
Officer's Certificate or the Opinion of Counsel, as the case may be, as
authority for any action undertaken in connection therewith.
SECTION 13.17. Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding of
the parties relating to
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the subject matter hereof, and all prior understandings, written or oral, are
superseded by this Agreement. This Agreement may not be modified, amended,
waived, or supplemented except as provided herein.
SECTION 13.18. Headings. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
or any provision hereof.
SECTION 13.19. Continued Effectiveness of the Existing
Pooling and Servicing Agreement. As amended and restated hereby, the Existing
Pooling and Servicing Agreement shall continue to be in full force and effect
and is hereby ratified and confirmed in all respects.
SECTION 13.20. Submission to Jurisdiction. Each of the parties
hereto hereby irrevocably and unconditionally: (a) submits for itself and its
property in any legal action or proceeding relating to this Agreement, any
Supplement, the Assignments, the Reassignments or the other documents executed
and delivered in connection herewith or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such
Person at its address determined in accordance with Section 13.6; and
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction.
SECTION 13.21. Actions by Seller on Behalf of Trust. The
Seller shall have the right on behalf of the Trust to make any filings, reports,
notices, applications, registrations with, and to seek any consents or
authorizations from, the Securities and Exchange Commission and any State
securities authority on behalf of the Trust as may be necessary or advisable to
comply with any Federal or State securities laws or reporting requirement, and
the parties hereto hereby ratify and approve all such filings, reports, notices,
applications, registrations with, consents or authorizations made, sought or
obtained by the Seller prior to the date hereof.
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IN WITNESS WHEREOF, the Seller, the Servicer and the Trustee
have caused this Pooling and Servicing Agreement to be duly executed as of the
day and year first above written.
DEUTSCHE FLOORPLAN RECEIVABLES,
L.P., Seller
By: DEUTSCHE FLOORPLAN RECEIVABLES,
INC., General Partner
By____________________________________
Name: Richard H. Schumacher
Title: President
By____________________________________
Name: Richard C. Goldman
Title: Senior Vice President
DEUTSCHE FINANCIAL SERVICES
CORPORATION, Servicer
By____________________________________
Name: Richard H. Schumacher
Title: Senior Vice President
By____________________________________
Name: Richard C. Goldman
Title: Senior Vice President
S-1
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THE CHASE MANHATTAN BANK,
Trustee
By____________________________________
Name:
Title:
S-2
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EXHIBIT A
[RESERVED]
A-1
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.05
----------------------------
of the Pooling and Servicing Agreement)
---------------------------------------
ASSIGNMENT No. OF RECEIVABLES IN ADDITIONAL ACCOUNTS
dated as of , , among Deutsche Floorplan Receivables, L.P., as seller (the
"Seller"), Deutsche Financial Services Corporation ("DFS"), as servicer (the
"Servicer"), and The Chase Manhattan Bank, as trustee (the "Trustee"), pursuant
to the Pooling and Servicing Agreement referred to below.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS the Seller, the Servicer and the Trustee are parties
to the Amended and Restated Pooling and Servicing Agreement dated as of April 1,
2000 (as amended, amended and restated or otherwise modified from time to time,
the "Agreement");
WHEREAS, pursuant to the Agreement, the Seller wishes to
designate Additional Accounts to be included as Accounts and to convey the
Receivables and related Collateral Security of such Additional Accounts, whether
now existing or hereafter created, to the Trust as part of the corpus of the
Trust (as each such term is defined in the Agreement); and
WHEREAS the Trustee is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, the Seller, the Servicer and the Trustee
hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall
have the meanings ascribed to them in the Agreement unless otherwise defined
herein.
"Addition Date" shall mean, with respect to the Additional
Accounts designated hereby, , 20 .
---------------------------- -----
2. Designation of Additional Accounts. The Seller hereby
delivers herewith a computer file or microfiche or written list containing a
true and complete list of all
B-1
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such Additional Accounts specifying for each such Account, as of the Additional
Cut-Off Date, its account number, the aggregate amount of Receivables
outstanding in such Account and the aggregate amount of Principal Receivables in
such Account. Such file or list shall, as of the date of this Assignment,
supplement Schedule 1 to the Agreement.
3. Conveyance of Receivables. (a) The Seller does hereby sell,
transfer, assign, set over and otherwise convey, without recourse (except as
expressly provided in the Agreement), to the Trust for the benefit of the
Certificateholders and the other Beneficiaries, all its right, title and
interest in, to and under the Receivables in such Additional Accounts and all
Collateral Security with respect thereto, owned by the Seller and existing at
the close of business on the Additional Cut-Off Date and thereafter created from
time to time until the termination of the Trust, all monies due or to become due
and all amounts received with respect thereto and all proceeds (including
"proceeds" as defined in Section 9-306 of the UCC as in effect in the State of
Missouri and Recoveries) thereof. The foregoing sale, transfer, assignment,
set-over and conveyance does not constitute and is not intended to result in the
creation or an assumption by the Trust, the Trustee, any Agent or any
Beneficiary of any obligation of the Servicer, the Seller or any other Person in
connection with the Accounts, the Receivables or under any agreement or
instrument relating thereto, including any obligation to any Dealers.
(b) In connection with such sale, the Seller agrees to record
and file, at its own expense, a financing statement on form UCC-1 (and
continuation statements when applicable) with respect to the Receivables now
existing and hereafter created for the sale of chattel paper (as defined in
Section 9-105 of the UCC as in effect in any state where the Seller's or the
Servicer's chief executive offices or books and records relating to the
Receivables are located) meeting the requirements of applicable state law in
such manner and in such jurisdictions as are necessary to perfect the sale and
assignment of the Receivables and the Collateral Security to the Trust, and to
deliver a file-stamped copy of such financing statements or other evidence of
such filing to the Trustee on or prior to the Addition Date. The Trustee shall
be under no obligation whatsoever to file such financing statement, or a
continuation statement to such financing statement, or to make any other filing
under the UCC in connection with such sales.
(c) In connection with such sale, the Seller further agrees,
at its own expense, on or prior to the Addition Date, to indicate in its
computer files that the Receivables created in connection with the Additional
Accounts designated hereby have been sold and the Collateral Security assigned
to the Trust pursuant to this Assignment for the benefit of the
Certificateholders and the other Beneficiaries.
4. Acceptance by Trustee. Subject to the satisfaction of the
conditions set forth in Section 6 of this Assignment, the Trustee hereby
acknowledges its acceptance, on behalf of the Trust, of all right, title and
interest previously held by the Seller to the property, now existing and
hereafter created, conveyed to the Trust pursuant to Section 3(a) of this
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<PAGE>
Assignment, and declares that it shall maintain such right, title and interest,
upon the trust set forth in the Agreement for the benefit of the
Certificateholders and other Beneficiaries. The Trustee further acknowledges
that, prior to or simultaneously with the execution and delivery of this
Assignment, the Seller delivered to the Trustee the computer file or microfiche
or written list relating to the Additional Accounts described in Section 2 of
this Assignment. The Trustee shall be under no obligation whatsoever to verify
the accuracy or completeness of the information contained in such file or list.
5. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Trustee, on behalf of the Trust, as of the
date of this Assignment and as of the Addition Date that:
(a) Legal, Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting creditors, rights in general and except
as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity);
(b) Organization and Good Standing. The Seller is a limited
partnership duly organized and validly existing and in good standing
under the law of the State of Delaware and has, in all material
respects, full power, authority and legal right to own its properties
and conduct its business as such properties are presently owned and
such business is presently conducted, and to execute, deliver and
perform its obligations under this Assignment.
(c) Due Qualification. The Seller is duly qualified to do
business and, where necessary, is in good standing as a foreign
partnership (or is exempt from such requirement) and has obtained all
necessary licenses and approvals in each jurisdiction in which the
conduct of its business requires such qualification except where the
failure to so qualify or obtain licenses or approvals would not have a
material adverse effect on its ability to perform its obligations
hereunder;
(d) Eligible Accounts. Each Additional Account designated
hereby is an Eligible Account;
(e) Selection Procedures. No selection procedures believed by
the Seller to be adverse to the interests of the Beneficiaries were
utilized in selecting the Additional Accounts designated hereby;
(f) Insolvency. As of the Notice Date and the Addition Date,
neither DFS nor the Seller are insolvent nor, after giving effect to
the conveyance set forth in
B-3
<PAGE>
Section 3 of this Assignment, shall any of them have been made
insolvent, nor are any of them aware of any pending insolvency;
(g) Valid Transfer. This Assignment constitutes a valid sale,
transfer and assignment to the Trust of all right, title and interest
of the Seller in the Receivables and the Collateral Security and the
proceeds thereof and upon the filing of the financing statements
described in Section 3 of this Assignment with the Secretary of State
of the State of Missouri and other applicable states and, in the case
of the Receivables and the Collateral Security hereafter created and
the proceeds thereof, upon the creation thereof, the Trust shall have a
first priority perfected ownership interest in such property, except
for Liens permitted under Section 2.6(a) of the Agreement. Except as
otherwise provided in the Pooling and Servicing Agreement, neither the
Seller nor any Person claiming through or under the Seller has any
claim to or interest in the Trust Assets;
(h) Due Authorization. The execution and delivery of this
Assignment and the consummation of the transactions provided for or
contemplated by this Assignment have been duly authorized by the
Seller by all necessary partnership action on the part of the Seller.
(i) No Conflict. The execution and delivery of this
Assignment, the performance of the transactions contemplated by this
Assignment and the fulfillment of the terms hereof, shall not conflict
with, result in any breach of any of the material terms and provisions
of, or constitute (with or without notice or lapse of time or both) a
material default under, any indenture, contract, agreement, mortgage,
deed of trust, or other instrument to which the Seller is a party or by
which it or its properties are bound;
(j) No Violation. The execution and delivery of this
Assignment by the Seller, the performance of the transactions
contemplated by this Assignment and the fulfillment of the terms
hereof applicable to the Seller shall not conflict with or violate
any material Requirements of Law applicable to the Seller;
(k) No Proceedings. There are no proceedings or, to the best
knowledge of the Seller, investigations pending or threatened against
the Seller before any Governmental Authority (i) asserting the
invalidity of this Assignment, (ii) seeking to prevent the consummation
of any of the transactions contemplated by this Assignment, (iii)
seeking any determination or ruling that, in the reasonable judgment of
the Seller, would materially and adversely affect the performance by
the Seller of its obligations under this Assignment, (iv) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability of this Assignment or (v) seeking to affect
adversely the income tax attributes of the Trust under the United
States Federal or any State income, single business or franchise tax
systems;
B-4
<PAGE>
(l) Record of Accounts. As of the Addition Date, Schedule 1 to
this Assignment is an accurate and complete listing in all material
respects of all the Additional Accounts as of the Additional Cut-Off
Date and the information contained therein with respect to the identity
of such Accounts and the Receivables existing thereunder is true and
correct in all material respects as of the Additional Cut-Off Date;
(m) No Liens. Each Receivable and all Collateral Security
existing on the Addition Date has been conveyed to the Trust free and
clear of any Lien, except for Liens permitted under Section 2.6(a) of
the Agreement;
(n) All Consents Required. With respect to each Receivable and
all Collateral Security existing on the Addition Date, all consents,
licenses, approvals or authorizations of or registrations or
declarations with any Governmental Authority required to be obtained,
effected or given by the Seller in connection with the conveyance of
such Receivable or Collateral Security to the Trust, the execution and
delivery of this Assignment and the performance of the transactions
contemplated hereby have been duly obtained, effected or given and are
in full force and effect; and
(o) Eligible Receivables. On the Additional Cut-Off Date each
Receivable conveyed to the Trust as of 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 Agreement.
6. Conditions Precedent. The acceptance of the Trustee set
forth in Section 4 of this Assignment is subject to the satisfaction, on or
prior to the Addition Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Seller in Section 5 of this
Assignment shall be true and correct as of the date of this Assignment
and as of the Addition Date;
(b) Agreement. Each of the conditions set forth in Section
2.5(d) of the Agreement applicable to the designation of the
Additional Accounts to be designated hereby shall have been
satisfied; and
(c) Officer's Certificate. The Seller shall have delivered to
the Trustee an Officer's Certificate, dated the date of this
Assignment, in which an officer of the Seller shall state that the
representations and warranties of the Seller under Section 5 hereof are
true and correct. The Trustee may conclusively rely on such Officers'
Certificate, shall have no duty to make inquiries with regard to the
matters set forth therein and shall incur no liability in so relying.
B-5
<PAGE>
7. Ratification of Agreement. As supplemented by this
Assignment, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Assignment shall be read, taken and
construed as one and the same instrument.
8. Counterparts. This Assignment may be executed in two or
more counterparts (and by different parties in separate counterparts), each of
which shall be an original but all of which together shall constitute one and
the same instrument.
9. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
B-6
<PAGE>
IN WITNESS WHEREOF, the Seller, the Servicer and the Trustee
have caused this Assignment to be duly executed and delivered by their
respective duly authorized officers as of the day and the year first above
written.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.,
Seller,
By: DEUTSCHE FLOORPLAN RECEIVABLES,
INC., General Partner
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
DEUTSCHE FINANCIAL SERVICES
CORPORATION, as Servicer
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as Trustee,
By:___________________________________
Name:
Title:
B-7
<PAGE>
EXHIBIT C
FORM OF ANNUAL SERVICER'S CERTIFICATE
(Asrequired to be delivered on or before March 31
of each calendar year pursuant to Section 3.5 of
the Pooling
and Servicing Agreement)
Deutsche Financial Services Corporation
-----------------------
DISTRIBUTION FINANCIAL SERVICES
FLOORPLAN MASTER TRUST
-----------------------
The undersigned, duly authorized representatives of Deutsche Financial
Services Corporation ("DFS"), as Servicer, pursuant to the Amended and Restated
Pooling and Servicing Agreement dated as of April 1, 2000 (as amended, amended
and restated or otherwise modified from time to time, the "Agreement"), by and
among Deutsche Floorplan Receivables, L.P., as seller, DFS, as servicer, and The
Chase Manhattan Bank, as trustee, do hereby certify that:
1. DFS is, as of the date hereof, the Servicer under the Agreement.
2. The undersigned are Servicing Officers and are duly authorized
pursuant to the Agreement to execute and deliver this Certificate to the
Trustee, any Agent and any Enhancement Providers.
3. A review of the activities of the Servicer during the calendar year
ended December 31, , and of its performance under the Agreement was
conducted under our supervision.
4. Based on such review, the Servicer has, to the best of our
knowledge, performed in all material respects all of its obligations under
the Agreement throughout such year and no default in the performance of
such obligations has occurred or is continuing except as set forth in
paragraph 5 below.
5. The following is a description of each default in the performance
of the Servicer's obligations under the provisions of the Agreement known
to us to have been made by
C-1
<PAGE>
the Servicer during the year ended December 31, , which sets forth in
detail the (a) nature of each such default, (b) the action taken by the
Servicer, if any, to remedy each such default and (c) the current status of
each such default: [If applicable, insert "None."]
Capitalized terms used but not defined herein are used as defined in
the Agreement.
IN WITNESS WHEREOF, each of the undersigned has duly
executed this Certificate this day of , .
---- -------------------- -------
Name:__________________________
Title:
Name:__________________________
Title:
C-2
<PAGE>
EXHIBIT D-1
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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
D-1-1
<PAGE>
EXHIBIT D-2
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A BENEFIT PLAN (AS
DEFINED BELOW). */
- ------------------------------
*/ The following should be inserted in any Certificate bearing such legend:
This Certificate may not be acquired by or for the account of any
employee benefit plan, trust or account, including an individual retirement
account, that is subject to the Employee Retirement Income Security Act of 1974,
as amended, or that is described in Section 4975(e)(1) of the Internal Revenue
Code of 1986, as amended, or an entity whose underlying assets include plan
assets by reason of a plan's investment in such entity (a "Benefit Plan"). By
accepting and holding this Certificate or any interest in this Certificate, the
Holder hereof shall be deemed to have represented and warranted that it is not
funding its acquisition with the assets of any Benefit Plan.
D-2-1
<PAGE>
EXHIBIT E
[RESERVED]
E-1
<PAGE>
EXHIBIT F-1
[FORM OF CLEARANCE SYSTEM CERTIFICATE
TO BE GIVEN TO THE TRUSTEE BY
EUROCLEAR OR CEDEL FOR
DELIVERY OF DEFINITIVE CERTIFICATES
IN EXCHANGE FOR A PORTION OF A
TEMPORARY GLOBAL SECURITY]
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
[ %] [Floating Rate] Asset Backed Certificates, Series [ ]
[Insert title or sufficient description
of Certificates to be delivered]
We refer to that portion of the temporary Global Certificate in respect
of the above-captioned issue which is herewith submitted to be exchanged for
definitive Certificates (the "Submitted Portion") as provided in the Amended and
Restated Pooling and Servicing Agreement dated as of April 1, 2000 (as amended,
amended and restated or otherwise modified from time to time, the "Agreement"),
in respect of such issue. This is to certify that (i) we have received a
certificate or certificates, in writing or by tested telex, with respect to each
of the persons appearing in our records as being entitled to a beneficial
interest in the Submitted Portion and with respect to such persons beneficial
interest either (a) from such person, substantially in the form of Exhibit F-2
to the Agreement, or (b) from [ ], substantially in the form of Exhibit F-3 to
the Agreement, and (ii) the Submitted Portion includes no part of the temporary
Global Certificate excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date hereof.
We understand that this certificate is required in connection with
certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably
F-1-1
<PAGE>
authorize you to produce this certificate or a copy thereof to any interested
party in such proceedings.
Dated: 1/
[Morgan Guaranty Trust
Company of New York,
Brussels office, as
operator of the
Euroclear System]2/
-
[Centrale de Livraison
de Valeurs Mobiliere S.A.]2/
By:__________________________________
- ----------
1/ To be dated on the Exchange Date.
2/ Delete the inappropriate reference.
F-1-2
<PAGE>
EXHIBIT F-2
[FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CEDEL
BY [ ]
WITH RESPECT TO REGISTERED CERTIFICATES SOLD TO
QUALIFIED INSTITUTIONAL BUYERS]
DISTRIBUTION FINANCIAL SERVICES
FLOORPLAN MASTER TRUST,
[ %] [Floating Rate] Asset Backed Certificates, Series [ ]
In connection with the initial issuance and placement of the above
referenced Asset Backed Certificates (the "Certificates"), an institutional
investor in the United States ("institutional investor") is purchasing U.S. $
aggregate principal amount of the Certificates held in our account at [Morgan
Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System] [Cedel S.A.] on behalf of such investor.
We reasonably believe that such institutional investor is a qualified
institutional buyer as such term is defined under Rule 144A of the Securities
and Exchange Commission under the Securities Act of 1933, as amended.
[We understand that this certificate is required in connection with
United States laws. We irrevocably authorize you to produce this certificate or
a copy hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered by this certificate.]
The Definitive Certificates in respect of this certificate are to be
issued in registered form in the minimum denomination of U.S. $ 00,000 and such
Definitive Certificates (and, unless the Pooling and Servicing Agreement or
Supplement relating to the Certificates otherwise provides, any Certificates
issued in exchange or substitution for or on registration of transfer of
Certificates) shall bear the following legend:
"THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933. NEITHER THIS CERTIFICATE NOR ANY
PORTION HEREOF MAY BE OFFERED OR SOLD, DIRECTLY OR
INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (EACH AS
DEFINED HEREIN), EXCEPT IN COMPLIANCE WITH THE REGISTRATION
F-2-1
<PAGE>
PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH
REGISTRATION PROVISIONS. THE TRANSFER OF THIS CERTIFICATE IS SUBJECT TO
CERTAIN CONDITIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN. THIS CERTIFICATE CANNOT BE EXCHANGED FOR A BEARER
CERTIFICATE."
Dated:
[ ]
By:______________________________
Authorized Officer
F-2-2
<PAGE>
EXHIBIT F-3
[FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CEDEL BY A BENEFICIAL OWNER
OF CERTIFICATES, OTHER THAN A QUALIFIED INSTITUTIONAL BUYER]
DISTRIBUTION FINANCIAL SERVICES
FLOORPLAN MASTER TRUST
[ %] [Floating Rate] Asset Backed Certificates, Series [ ]
This is to certify that as of the date hereof and except as provided in
the third paragraph hereof, the above-captioned Certificates held by you for our
account (i) are not owned by a person that is a United States person, (ii) are
owned by a United States person that is (A) the foreign branch of a United
States financial institution (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) (a "financial institution") purchasing for its own account or
for resale, or (B) a United States person who acquired the Certificates through
the foreign branch of a financial institution and who holds the Certificates
through the financial institution on the date hereof (and in either case (A) or
(B), the financial institution hereby agrees to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by a financial
institution for purposes of resale during the Restricted Period (as defined in
U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) . In addition,
financial institutions described in clause (iii) of the preceding sentence
(whether or not also described in clause (i) or (ii)) certify that they have not
acquired the Certificates for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
We undertake to advise you by tested telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the
above-captioned Certificates in bearer form with respect to such of said
Certificates as then appear in your books as being held for our account.
This certificate excepts and does not relate to U.S. $ principal amount
of Certificates held by you for our account, as to which we are not yet able to
certify beneficial ownership. We understand that delivery of Definitive
Certificates in such principal amount cannot be made until we are able to so
certify.
F-3-1
<PAGE>
We understand that this certificate is required in connection with
certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings. As used herein, "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction; and "United States
Person" means a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States, or any political subdivision thereof, or an estate or trust the
income of which is subject to United States federal income taxation regardless
of its source.
Dated: 1/ By_____________________________
As, or as agent for, the
beneficial owner(s) of
the interest in the
Certificates to which
this certificate relates.
- ----------
1/ This Certificate must be dated on the earlier of the date of the first actual
payment of interest in respect of the Certificates and the date of the delivery
of the Certificates in definitive form.
F-3-2
<PAGE>
EXHIBIT G-1
FORM OF OPINION OF COUNSEL
Provisions to be Included in
Opinion of Counsel Delivered Pursuant
to Section 13.2(d)
(a) The Amendment to the [Pooling and Servicing Agreement]
[Supplement], attached hereto as Schedule 1 (the "Amendment"), has been duly
authorized, executed and delivered by the Seller and constitutes the legal,
valid and binding agreement of the Seller, enforceable in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally from time to time in effect. The enforceability of the Seller's
obligations is also subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(b) The Amendment has been entered into in accordance with the terms
and provisions of Section 13.1 of the Pooling and Servicing Agreement.
EXHIBIT G-2
TO PSA
G-2-1
<PAGE>
FORM OF OPINION OF COUNSEL
Provisions to be Included in Opinion of Counsel to be
-----------------------------------------------------
Delivered Pursuant to Sections 2.5 and 13.2(g)(i) and (ii)1/
-----------------------------------------------------------
The opinions set forth below may be subject to all the qualifications,
assumptions, limitations and exceptions taken or made in the opinion of counsel
to Deutsche Floorplan Receivables, L.P. (the "Seller") delivered on any Closing
Date. Capitalized terms used but not defined herein are used as defined in the
Amended and Restated Pooling and Servicing Agreement, dated as of April 1, 2000
(as amended, amended and restated or otherwise modified from time to time, the
"Agreement"), among the Seller, as seller, Deutsche Financial Services
Corporation, as servicer, and The Chase Manhattan Bank, as trustee.
[(a) The Assignment has been duly authorized, executed and delivered by
the Seller, and constitutes the valid and legally binding obligation of the
Seller, enforceable against the Seller in accordance with its terms.]
(b) Assuming the Receivables [in the Additional Accounts] are created
under, and are evidenced solely by, Wholesale Financing Agreements, Accounts
Receivable Financing Agreements, or Asset Based Financing Agreements, such
Receivables shall constitute "chattel paper", "accounts" or "general
intangibles" as defined under Section 9-105 of the UCC. We note that the Seller
has given us an Officer's Certificate to the effect that the Receivables are
created under Wholesale Financing Agreements, Accounts Receivable Financing
Agreements, or Asset Based Financing Agreements.
(c) [True sale opinion regarding transfer of Receivables from DFS to
the Seller.]
(d) If the transfer of the Receivables [in the Additional Accounts] and
all [of the related] Collateral Security to the Trust pursuant to the Pooling
and Servicing Agreement constitutes a true sale of such Receivables and
Collateral Security to the Trust:
(i) with respect to such Receivables and Collateral Security
in existence on the date hereof, such sale transfers all of the right,
title and interest of the Seller in and to such Receivables and
Collateral Security to the Trust, free and clear of any liens now
existing or hereafter created, but subject to the rights of the holder
of the Deutsche FRLP Certificate and except for Liens permitted under
Section 2.6(a) of the Agreement;
(ii) with respect to such Receivables and Collateral Security
which come into existence after the date hereof, upon the creation of
such Receivables and
- --------
1/Include bracketed language only in the case of additions of Accounts effected
pursuant to Section 2.05 of the Pooling and Servicing Agreement.
G-2-2
<PAGE>
Collateral Security and the subsequent transfer of such Receivables and
Collateral Security to the Trust in accordance with the Pooling and
Servicing Agreement and receipt by the Seller of the consideration
therefor required pursuant to the Pooling and Servicing Agreement, such
sale shall transfer all of the right, title and interest of the Seller
in and to such Receivables and Collateral Security to the Trust free
and clear of any liens but subject to the rights of the holder of the
Deutsche FRLP Certificate and except for Liens permitted under Section
2.6(a) of the Agreement;
and, in either case, no further action shall thereafter be required
under Missouri or federal law to protect the Trust's ownership interest
in the Receivables and the Collateral Security against creditors of, or
subsequent purchasers from, the Seller.
(e) If the transfer of the Receivables and Collateral Security to the
Trust pursuant to the Pooling and Servicing Agreement does not constitute a true
sale of the Receivables and the Collateral Security to the Trust, then the
Pooling and Servicing Agreement as amended and supplemented by the Assignment
creates a valid security interest in favor of the Trustee, for the benefit of
the Certificateholders, in the Seller's right, title and interest in and to the
Receivables and the Collateral Security and the proceeds thereof securing the
obligations of the Seller thereunder. Financing statements on form UCC-1 having
been filed in the Offices of the Secretaries of State of the State of Missouri
and [other applicable states] [and counties) and accordingly, such security
interest constitutes a perfected security interest in such Receivables and
Collateral Security and the proceeds thereof subject to no prior liens (but
subject to the Liens permitted by Section 2.6(a) of the Agreement), enforceable
as such against creditors of, and subsequent purchasers from, the Seller,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws relating to or affecting creditors' rights generally
and to general equity principles.
G-2-3
<PAGE>
EXHIBIT H
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
(As required by Section 2.7 of the Pooling and
Servicing Agreement referred to below)
REASSIGNMENT NO. OF RECEIVABLES, dated as of
, 20 , by and between DEUTSCHE FLOORPLAN
RECEIVABLES, L.P., a limited partnership organized
under the laws of the State of Delaware (the
"Seller"), and The Chase Manhattan Bank, a New York
banking corporation, as trustee (the "Trustee")
pursuant to the Pooling and Servicing Agreement
referred to below.
WITNESSETH
WHEREAS the Seller, Deutsche Financial Services Corporation, as
servicer (the "Servicer"), and the Trustee are parties to the Amended and
Restated Pooling and Servicing Agreement dated as of April 1, 2000 (as amended,
amended and restated or otherwise modified from time to time, the"Agreement");
WHEREAS, pursuant to the Agreement, the Seller wishes (a) to remove
certain Accounts (the "Removed Accounts") and (b) if and only if permitted by
Section 2.8(d) of the Agreement, to cause the Trustee to reconvey the
Receivables of such Removed Accounts and the related Collateral Security,
whether now existing or hereafter created, and all amounts currently held by the
Trust or thereafter received by the Trust in respect of such Removed Accounts,
from the Trust to the Seller (as each such term is defined in the Agreement);
and
WHEREAS the Trustee is willing to accept such removal and to reconvey
the Receivables in the Removed Accounts, such Collateral Security and any
related amounts held or received by the Trust subject to the terms and
conditions hereof.
NOW, THEREFORE, the Seller and the Trustee hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein
shall have such defined meanings when used herein, unless otherwise defined
herein.
"Removal Date" shall mean, with respect to the Removed Accounts
designated hereby,
2. Notice of Removed Accounts. (a) Not less than five Business Days
prior to the Removal Date, the Seller shall furnish to the Trustee, any Agent,
any Enhancement Providers
H-1
<PAGE>
and the Rating Agencies a written notice specifying the Determination Date
(which may be the Determination Date on which such notice is given) on which
removal of one or more Accounts shall occur, such date being a Removal Date.
(b) On or before the fifth Business Day after the Removal Date, the
Seller shall furnish to the Trustee a computer file, microfiche list or other
list of the Removed Accounts that were removed on the Removal Date, specifying
for each Removed Account as of the date of the Removal Notice its number, the
aggregate amount outstanding in such Removed Account and the aggregate amount of
Principal Receivables therein and represent that such computer file, microfiche
list or other list of the Removed Accounts is true and complete in all material
respects.
3. Conveyance of Receivables and Accounts. (a) The Trustee does hereby
transfer, assign, set over and otherwise convey to the Seller, without recourse,
representation or warranty on and after the Removal Date, all right, title and
interest of the Trust in, to and under all [in the case of Removed Accounts
which were Ineligible Accounts at the time they were originally designated as
Accounts, use the following language: Receivables now existing at the close of
business on the Removal Date and thereafter created from time to time until the
termination of the Trust in Removed Accounts designated hereby, all Collateral
Security thereof, all monies due or to become due and all amounts received with
respect thereto (including all Non-Principal Receivables), all proceeds (as
defined in Section 9-306 of the UCC as in effect in the State of Missouri) and
Recoveries thereof relating thereto] [in the case of Removed Accounts which were
not Ineligible Accounts at the time they were originally designated as Accounts,
replace the immediately preceding bracketed text with the following: the Removed
Accounts but not any right, title and interest of the Trust in, to and under (i)
all Receivables existing at the close of business on the Removal Date in Removed
Accounts designated hereby, (ii) all Collateral Security relating to such
Receivables, (iii) all monies due or to become due and all amounts received with
respect to such Receivables (including all Non-Principal Receivables), (iv) all
proceeds (as defined in Section 9-306 of the UCC in effect in the State of
Missouri) of such Receivables and (v) all Recoveries of such Receivables
relating thereto, it being understood that the items described in clauses
(i)-(v) shall continue to be Trust Assets].
(b) If requested by the Seller, in connection with such transfer, the
Trustee agrees to execute and deliver to the Seller on or prior to the date of
this Reassignment, a termination statement under the UCC of each applicable
jurisdiction with respect to the Receivables existing at the close of business
on the Removal Date and thereafter created from time to time and Collateral
Security thereof in the Removed Accounts reassigned hereby (which may be a
single termination statement with respect to all such Receivables and Collateral
Security) evidencing the release by the Trust of its lien on the Receivables in
the Removed Accounts and the Collateral Security, and meeting the requirements
of applicable state law, in such manner and such jurisdictions as are necessary
to remove such lien.
H-2
<PAGE>
4. Acceptance by Trustee. The Trustee hereby acknowledges that, prior
to or simultaneously with the execution and delivery of this Reassignment, the
Seller delivered to the Trustee the computer file or such microfiche or written
list described in Section 2(b) of this Reassignment.
5. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Trustee, on behalf of the Trust, as of the date
of this Reassignment and as of the Removal Date:
(a) Legal, Valid and Binding Obligation. This Reassignment
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights
generally and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in
equity);
(b) No Early Amortization Event. The removal of the Accounts
hereby removed shall not, in the reasonable belief of the Seller,
cause an Early Amortization Event to occur or cause the Pool Balance
to be less than the Required Participation Amount;
(c) Selection Procedures. No selection procedures believed by
the Seller to be adverse to the interests of the Beneficiaries were
utilized in selecting the Accounts to be removed;
(d) True and Complete List. The list of Removed Accounts
described in Section 2 of this Assignment is, as of the Removal
Commencement Date, true and complete in all material respects; and
(e) Rating of Certificates. The removal of such Accounts
shall not result in a reduction or withdrawal of the rating of any
outstanding series or Class by the applicable Rating Agency;
provided, however, that in the event that the removal on such Removal
Date relates solely to Ineligible Accounts, the Seller shall be deemed
to make only the representations and warranties contained in paragraph
5(a) above.
6. Conditions Precedent. In addition to the conditions precedent set
forth in Section 2.7 of the Agreement, the obligation of the Trustee to execute
and deliver this Reassignment is subject to the satisfaction, on or prior to the
Removal Date, of the following additional conditions precedent:
H-3
<PAGE>
(a) Officers' Certificate. The Seller shall have delivered to the
Trustee, any Agent, and any Enhancement Providers an Officers' Certificate
certifying that (i) as of the Removal Date, all requirements set forth in
Section 2.7 of the Agreement for removing such Accounts and reconveying the
Receivables of such Removed Accounts and the Collateral Security, whether
existing at the close of business on the Removal Date or thereafter created from
time to time until the termination of the Trust, have been satisfied, and (ii)
each of the representations and warranties made by the Seller in Section 5
hereof is true and correct as of the date of this Reassignment and as of the
Removal Date. The Trustee may conclusively rely on such Officers' Certificate,
shall have no duty to make inquiries with regard to the matters set forth
therein and shall incur no liability in so relying.
(b) The Seller shall have delivered to the Trustee, any Agent, any
Enhancement Providers and each Rating Agency a Tax Opinion, dated the Removal
Date, with respect to the removal of Accounts.
7. Ratification of Agreement. As supplemented by this Reassignment,
the Agreement is in all respects ratified and confirmed and the Agreement as so
supplemented by this Reassignment shall be read, taken and construed as one and
the same instrument.
8. Counterparts. This Reassignment may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE 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.
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<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Reassignment to be
duly executed and delivered by their respective duly authorized officers on the
day and year first above written.
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.,
Seller,
By: DEUTSCHE FLOORPLAN RECEIVABLES,
INC., General Partner
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, Trustee
By:_____________________________________
Name:
Title:
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<PAGE>
Schedule 1
List of Accounts
Delivered separately to the Trustee and deemed to be incorporated herein.
<PAGE>
Schedule 2
The Collection Account for the Trust has been established with The
Chase Manhattan Bank, Account #507-865677.
<PAGE>
EXHIBIT 4.2
===============================================================================
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
Seller
DEUTSCHE FINANCIAL SERVICES CORPORATION
Servicer
and
THE CHASE MANHATTAN BANK
Trustee
SERIES 2000-1 SUPPLEMENT
Dated as of April 1, 2000
to
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2000
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
SERIES 2000-1
===============================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
Creation of the Series 2000-1 Certificates
SECTION 1.1 Designation....................................................1
ARTICLE II
Definitions
SECTION 2.1 Definitions....................................................1
ARTICLE III
Servicing Fee
SECTION 3.1 Servicing Compensation........................................14
ARTICLE IV
Rights of Series 2000-1 Certificateholders and Allocation and
Application of Collections
SECTION 4.1 Allocations; Payments to Seller...............................16
SECTION 4.2 Monthly Interest; Determination of Certificate Rate...........16
SECTION 4.3 Determination of Monthly Principal............................17
SECTION 4.4 Establishment of Reserve Fund and Funding Accounts............18
SECTION 4.5 Deficiency Amount.............................................21
SECTION 4.6 Application of Investor Non-Principal Collections,
Investment Proceeds, Servicer Advances and Available
Investor Principal Collections................................21
SECTION 4.7 Distributions to Series 2000-1 Certificateholders.............24
SECTION 4.8 Application of Reserve Fund...................................26
SECTION 4.9 Investor Charge-Offs..........................................26
SECTION 4.10 Excess Servicing..............................................27
SECTION 4.11 Excess Principal Collections..................................27
SECTION 4.12 Excess Funding Account........................................27
SECTION 4.13 Yield Supplement Account......................................29
ARTICLE V
Distribution and Reports to Series 2000-1 Certificateholders
SECTION 5.1 Distributions.................................................29
SECTION 5.2 Reports and Statements to Series 2000-1 Certificateholders....30
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ARTICLE VI
Early Amortization Events
SECTION 6.1 Additional Early Amortization Events..........................31
ARTICLE VII
Optional Repurchase
SECTION 7.1 Optional Repurchase...........................................32
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.....................................................33
SECTION 8.2 Distribution of Proceeds of Sale, Disposition or Liquidation
of the Receivables Pursuant to Section 9.2 of the Agreement...34
ARTICLE IX
Miscellaneous Provisions
SECTION 9.1 Securities Law Filings........................................35
SECTION 9.2 Ratification of Agreement.....................................35
SECTION 9.3 Counterparts..................................................35
SECTION 9.4 Governing Law.................................................35
SECTION 9.5 Limitation of Class C Certificates............................35
SECTION 9.6 The Trustee; Paying Agent.....................................37
SECTION 9.7 Instructions in Writing.......................................37
SECTION 9.8 Initial Funding of Reserve Fund...............................37
SECTION 9.9 Severability; Certificate Rate Limitation.....................38
SECTION 9.10 Headings......................................................38
SECTION 9.11 Notices.......................................................38
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<PAGE>
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Distribution Date Statement
Exhibit C Form of Representation Letter
SCHEDULES
Schedule 1 Accounts
Schedule 2 Initial Principal Amounts of Certificates
iii
<PAGE>
SERIES 2000-1 SUPPLEMENT dated as of April 1, 2000 (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 Amended and Restated Pooling and
Servicing Agreement, dated as of April 1, 2000 (the "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.
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 2000-1 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
2000-1" or the "Series 2000-1 Certificates", which shall consist of three
Classes to be known, respectively, as the "Floating Rate Asset Backed
Certificates, Series 2000-1, Class A," "Floating Rate Asset Backed Certificates,
Series 2000-1, Class B" and "Floating Rate Asset Backed Certificates, Series
2000-1, Class C."
(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.
ARTICLE II
Definitions
SECTION 2.1 Definitions. (a) Whenever used in this Series Supplement
the following words and phrases shall have the following meanings:
"Accumulation Period" shall mean, unless an Early Amortization Event
shall have occurred prior thereto (other than an Early Amortization Event which
has resulted in an Early Amortization Period which has ended as described in
clause (c) of the definition of Early Amortization Period in the Agreement), the
period commencing on the Accumulation Period Commencement Date and ending upon
the earlier of (a) the commencement of an Early Amortization Period and (b) the
Expected Final Payment Date.
"Accumulation Period Commencement Date" shall mean the first day of the
calendar month which is the fourth calendar month prior to the calendar month in
which the Expected
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Final Payment Date occurs; provided, however, that upon written notice to the
Trustee, the Servicer may elect to postpone the Accumulation Period Commencement
Date so that the number of months included in the Accumulation Period shall
equal or exceed the Accumulation Period Length; provided further, however, that
such election shall only be permitted if the Accumulation Period Length is less
than four months; provided further, however, that the Accumulation Period
Commencement Date shall not be postponed beyond the first day of the calendar
month which is the second calendar month prior to the calendar month in which
the Expected Final Payment Date occurs.
"Accumulation Period Length" shall mean, as determined by the Servicer
on each Determination Date, beginning with the Determination Date occurring in
the calendar month which is the fifth calendar month prior to the calendar month
in which the Expected Final Payment Date occurs, the number of calendar months
that the Servicer expects to be required so that sufficient funds are on deposit
in the Principal Funding Account no later than the Expected Final Payment Date
to pay the outstanding principal balances of the Certificates, based on (a) the
expected monthly collections of Principal Receivables expected to be
distributable to the Series 2000-1 Certificateholders assuming a principal
payment rate no greater than the lowest Monthly Payment Rate on the Receivables
for the preceding three months, so that, for example, if the lowest Monthly
Payment Rate for that preceding three month period is 50% or more, the number of
calendar months required would be two; if the lowest Monthly Payment Rate for
that preceding three month period is between 33.33% and 50%, the number of
calendar months required would be three; and if the lowest Monthly Payment Rate
for that preceding three month period is between 25% and 33.33%, the number of
calendar months required would be four; and (b) the amount of principal expected
to be distributable to Investor Certificateholders of other Series which are
expected to be in their accumulation or amortization periods during the
Accumulation Period.
"Additional Early Amortization Event" shall have the meaning specified
in Section 6.1.
"Additional Interest" shall mean the sum of the Class A Additional
Interest, the Class B Additional Interest and the Class C Additional Interest.
"Adjustment Date" shall mean, with respect to any Interest Period, the
second London Business Day preceding such Interest Period; provided that with
respect to the first Interest Period, the Adjustment Date shall be April 25,
2000.
"Allocable Miscellaneous Payments" shall mean, with respect to any
Distribution Date, the product of (a) a fraction, the numerator of which is the
Series 2000-1 Allocation Percentage for the related Collection Period and the
denominator of which is the sum of the series allocation percentages for all
Series not in their revolving periods and (b) Miscellaneous Payments with
respect to the related Collection Period.
"Available Investor Principal Collections" shall mean, with respect to
any Distribution Date, the sum of (a) an amount equal to Investor Principal
Collections for such Distribution Date,
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(b) Allocable Miscellaneous Payments with respect to such Distribution Date, (c)
any funds remaining in the Yield Supplement Account at the beginning of the
Accumulation Period or upon the occurrence of an Early Amortization Event and
(d) on the Termination Date, any funds in the Reserve Fund after giving effect
to Section 4.8.
"Carry-over Amount" shall mean the sum of the Class A Carry-over
Amount, the Class B Carry-over Amount and the Class C Carry-over Amount.
"Certificate Rate" means any of the Class A Certificate Rate, the Class
B Certificate Rate or the Class C Certificate Rate.
"Certificateholders" shall mean, collectively, the Class A
Certificateholders, the Class B Certificateholders and the Class C
Certificateholders.
"Certificateholders' Monthly Servicing Fee" shall have the meaning
specified in Section 3.1.
"Certificates" shall mean, collectively, the Class A Certificates, the
Class B Certificates and the Class C Certificates.
"Class A Additional Interest" shall have the meaning specified in
Section 4.2(a).
"Class A Carry-over Amount" shall mean, with respect to a Distribution
Date an amount equal to the excess, if any, of (a) the amount equal to the Class
A Monthly Interest for such Distribution Date calculated as if the Class A
Certificate Rate for such Distribution Date were based on LIBOR rather than the
Net Receivables Rate, over (b) the actual Class A Monthly Interest for such
Distribution Date.
"Class A Carry-over Amount Additional Interest" for a Distribution Date
shall mean an amount equal to the product of:
(a) the Class A Certificate Rate for the Interest Period then ended;
(b) a fraction, the numerator of which is the actual number of days
in that Interest Period and the denominator of which is 360; and
(c) any unpaid Class A Carry-over Amount, if any, for the previous
Distribution Date.
"Class A Certificate Rate" shall mean, for an Interest Period and the
Distribution Date immediately following such Interest Period, a rate per annum
equal to the lesser of (i) LIBOR plus seventeen basis points (0.17%) per annum
and (ii) the related Net Receivables Rate.
"Class A Certificateholders" shall mean the Holders of Class A
Certificates.
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<PAGE>
"Class A Certificates" shall mean any one of the "Floating Rate Asset
Backed Certificates, Series 2000-1, Class A" executed by the Seller and
authenticated by the Trustee, substantially in the form of Exhibit A.
"Class A Initial Invested Amount" shall mean, for any date, the initial
principal amount of the Class A Certificates, which is set forth in Schedule 2,
plus (x) the product of (i) the Class A Percentage multiplied by (ii) the amount
of any withdrawals from the Excess Funding Account in connection with an
increase in Pool Balance since the Closing Date, minus (y) the product of (i)
the Class A Percentage multiplied by (ii) the amount of any additions to the
Excess Funding Account in connection with a reduction in the Pool Balance since
the Closing Date.
"Class A Interest Shortfall" shall have the meaning specified in
Section 4.2(a).
"Class A Invested Amount" shall mean, for any date, an amount equal to
the result of (i) the Class A Initial Invested Amount, minus (ii) the aggregate
amount of principal payments made to Class A Certificateholders prior to such
date, minus (iii) the aggregate amount of all unreimbursed Class A Investor
Charge-Offs; provided that the Class A Invested Amount shall not be less than
zero.
"Class A Investor Charge-Off" shall have the meaning specified in
Section 4.9.
"Class A Monthly Interest" on any Distribution Date shall be an amount
equal to the product of (i) the Class A Certificate Rate, (ii) a fraction the
numerator of which is the actual number of days in the related Interest Period
and the denominator of which is 360, and (iii) (A) the outstanding principal
balance of the Class A Certificates as of the close of business on the preceding
Distribution Date (after giving effect to all repayments of principal made to
Class A Certificateholders on such preceding Distribution Date, if any) or (B)
in the case of the first Distribution Date with respect to Series 2000-1, the
initial principal amount of the Class A Certificates as set forth in Schedule 2.
"Class A Percentage" shall mean the percentage equivalent of a
fraction, the numerator of which is the outstanding principal balance of the
Class A Certificates and the denominator of which is the outstanding principal
balance of all Certificates.
"Class A Pool Factor" shall mean, with respect to any Determination
Date, a number carried out to eleven decimals representing the ratio of the
outstanding principal balance of the Class A Certificates as of such
Determination Date (determined after taking into account any reduction in the
outstanding principal balance of the Class A Certificates which shall occur on
the following Distribution Date) to the initial principal balance of the Class A
Certificates.
"Class B Additional Interest" shall have the meaning specified in
Section 4.2(a).
"Class B Carry-over Amount" shall mean, with respect to a Distribution
Date, an amount equal to the excess, if any, of (a) the amount equal to the
Class B Monthly Interest for such
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<PAGE>
Distribution Date calculated as if the Class B Certificate Rate for such
Distribution Date were based on LIBOR rather than the Net Receivables Rate, over
(b) the actual Class B Monthly Interest for such Distribution Date.
"Class B Carry-over Amount Additional Interest" for a Distribution Date
shall mean an amount equal to the product of:
(a) the Class B Certificate Rate for the Interest Period then ended;
(b) a fraction, the numerator of which is the actual number of days
in that Interest Period and the denominator of which is 360; and
(c) any unpaid Class B Carry-over Amount, if any, for the previous
Distribution Date.
"Class B Certificate Rate" shall mean, for an Interest Period and the
Distribution Date immediately following such Interest Period, a rate per annum
equal to the lesser of (i) LIBOR plus forty-four basis points (0.44%) per annum
and (ii) the related Net Receivables Rate.
"Class B Certificateholders" shall mean the Holders of Class B
Certificates.
"Class B Certificates" shall mean any one of the "Floating Rate Asset
Backed Certificates, Series 2000-1, Class B" executed by the Seller and
authenticated by the Trustee, substantially in the form of Exhibit A.
"Class B Initial Invested Amount" shall mean, for any date, the initial
principal amount of the Class B Certificates, which is set forth in Schedule 2,
plus (x) the product of (i) the Class B Percentage multiplied by (ii) the amount
of any withdrawals from the Excess Funding Account in connection with an
increase in Pool Balance since the Closing Date, minus (y) the product of (i)
the Class B Percentage multiplied by (ii) the amount of any additions to the
Excess Funding Account in connection with a reduction in the Pool Balance since
the Closing Date.
"Class B Interest Shortfall" shall have the meaning specified in
Section 4.2(a).
"Class B Invested Amount" shall mean, for any date, an amount equal to
the result of (i) the Class B Initial Invested Amount, minus (ii) the aggregate
amount of principal payments made to Class B Certificateholders prior to such
date, minus (iii) the aggregate amount of all unreimbursed Class B Investor
Charge-Offs; provided that the Class B Invested Amount shall not be less than
zero.
"Class B Investor Charge-Off" shall have the meaning specified in
Section 4.9.
"Class B Monthly Interest" on any Distribution Date shall be an amount
equal to the product of (i) the Class B Certificate Rate, (ii) a fraction the
numerator of which is the actual
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number of days in the related Interest Period and the denominator of which is
360, and (iii) (A) the outstanding principal balance of the Class B Certificates
as of the close of business on the preceding Distribution Date (after giving
effect to all repayments of principal made to Class B Certificateholders on such
preceding Distribution Date, if any) or (B) in the case of the first
Distribution Date with respect to Series 2000-1, the initial principal amount of
the Class B Certificates as set forth in Schedule 2.
"Class B Percentage" shall mean the percentage equivalent of a
fraction, the numerator of which is the outstanding principal balance of the
Class B Certificates and the denominator of which is the outstanding principal
balance of all Certificates.
"Class B Pool Factor" shall mean, with respect to any Determination
Date, a number carried out to eleven decimals representing the ratio of the
outstanding principal balance of the Class B Certificates as of such
Determination Date (determined after taking into account any reduction in the
outstanding principal balance of the Class B Certificates which shall occur on
the following Distribution Date) to the initial principal balance of the Class B
Certificates.
"Class C Additional Interest" shall have the meaning specified in
Section 4.2(a).
"Class C Carry-over Amount" shall mean, with respect to a Distribution
Date, an amount equal to the excess, if any, of (a) the amount equal to the
Class C Monthly Interest for such Distribution Date calculated as if the Class C
Certificate Rate for such Distribution Date were based on LIBOR rather than the
Net Receivables Rate, over (b) the actual Class C Monthly Interest for such
Distribution Date.
"Class C Carry-over Amount Additional Interest" for a Distribution Date
shall mean an amount equal to the product of:
(a) the Class C Certificate Rate for the Interest Period then ended;
(b) a fraction, the numerator of which is the actual number of days
in that Interest Period and the denominator of which is 360; and
(c) any unpaid Class C Carry-over Amount, if any, for the previous
Distribution Date.
"Class C Certificate Rate" shall mean, for an Interest Period and the
Distribution Date immediately following such Interest Period, a rate per annum
equal to the lesser of (i) LIBOR plus one hundred basis points (1.0%) per annum
and (ii) the related Net Receivables Rate.
"Class C Certificateholders" shall mean the Holders of Class C
Certificates.
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"Class C Certificates" shall mean any one of the "Floating Rate Asset
Backed Certificates, Series 2000-1, Class C" executed by the Seller and
authenticated by the Trustee, substantially in the form of Exhibit A.
"Class C Initial Invested Amount" shall mean, for any date, the initial
principal amount of the Class C Certificates, which is set forth in Schedule 2,
plus (x) the product of (i) the Class C Percentage multiplied by (ii) the amount
of any withdrawals from the Excess Funding Account in connection with an
increase in Pool Balance since the Closing Date, minus (y) the product of (i)
the Class C Percentage multiplied by (ii) the amount of any additions to the
Excess Funding Account in connection with a reduction in the Pool Balance since
the Closing Date.
"Class C Interest Shortfall" shall have the meaning specified in
Section 4.2(a).
"Class C Invested Amount" shall mean, for any date, an amount equal to
the result of (i) the Class C Initial Invested Amount, minus (ii) the aggregate
amount of principal payments made to Class C Certificateholders prior to such
date, minus (iii) the aggregate amount of all unreimbursed Class C Investor
Charge-Offs; provided that the Class C Invested Amount shall not be less than
zero.
"Class C Investor Charge-Off" shall have the meaning specified in
Section 4.9.
"Class C Monthly Interest" on any Distribution Date shall be an amount
equal to the product of (i) the Class C Certificate Rate, (ii) a fraction the
numerator of which is the actual number of days in the related Interest Period
and the denominator of which is 360, and (iii) (A) the outstanding principal
balance of the Class C Certificates as of the close of business on the preceding
Distribution Date (after giving effect to all repayments of principal made to
Class C Certificateholders on such preceding Distribution Date, if any) or (B)
in the case of the first Distribution Date with respect to Series 2000-1, the
initial principal amount of the Class C Certificates as set forth in Schedule 2.
"Class C Percentage" shall mean the percentage equivalent of a
fraction, the numerator of which is the outstanding principal balance of the
Class C Certificates and the denominator of which is the outstanding principal
balance of all Certificates.
"Class C Pool Factor" shall mean, with respect to any Determination
Date, a number carried out to eleven decimals representing the ratio of the
outstanding principal balance of the Class C Certificates as of such
Determination Date (determined after taking into account any reduction in the
outstanding principal balance of the Class C Certificates which shall occur on
the following Distribution Date) to the initial principal balance of the Class C
Certificates.
"Closing Date" shall mean April 27, 2000.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
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"Controlled Accumulation Amount" shall mean the quotient obtained by
dividing the Invested Amount as of the Determination Date on which the
Accumulation Period Length is determined (after giving effect to any changes
therein on such date) by the number of months comprising the Accumulation Period
Length.
"Controlled Deposit Amount" shall mean, for any Distribution Date with
respect to the Accumulation Period, the excess, if any, of (i) the product of
the Controlled Accumulation Amount and the number of Distribution Dates from and
including the first Distribution Date during the Accumulation Period through and
including such Distribution Date over (ii) the sum of amounts on deposit in the
Excess Funding Account and the Principal Funding Account, in each case before
giving effect to any withdrawals from or deposits to such accounts on such
Distribution Date.
"Deficiency Amount" shall have the meaning specified in Section 4.5.
"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 2000-1.
"Excess Funding Account" shall have the meaning specified in Section
4.4(d).
"Excess Principal Collections" shall mean the amounts equal to the
balances referred to as such in Sections 4.6(b)(ii) and 4.6(c)(ii).
"Excess Servicing", shall mean, with respect to any Distribution Date,
the amount, if any, specified pursuant to Section 4.6(a)(xi) with respect to
such Distribution Date.
"Expected Final Payment Date" shall mean the April 2003 Distribution
Date.
"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 Unconcentrated Pool Balance as of such last day; provided,
however, for 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 is the sum of the initial principal balances of
the Series 2000-1 Certificates and the denominator of which is the
Unconcentrated Pool Balance on the last day of the Collection Period immediately
preceding the Closing Date.
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"Initial Invested Amount" shall equal the sum of the Class A Initial
Invested Amount, the Class B Initial Invested Amount and the Class C Initial
Invested 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 period from and including the Distribution Date immediately preceding such
Distribution Date (or, in the case of the first Distribution Date, from and
including the Closing Date) to but excluding such Distribution Date.
"Invested Amount" shall mean, for any date, the sum of the Class A
Invested Amount, the Class B Invested Amount and the Class C Invested Amount.
"Investment Proceeds" shall mean, with respect to any Distribution
Date, all interest and other investment earnings (net of losses and investment
expenses) on the related Determination Date on funds on deposit in the Series
2000-1 Accounts, together with an amount equal to the Series 2000-1 Allocation
Percentage of the interest and other investment earnings (net of losses and
investment expenses) 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.
"Investor 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, after giving effect to any allocation of any portion of that
Defaulted Amount to the Dealer Overconcentration Series, and (b) the Floating
Allocation Percentage for the related Collection Period.
"Investor 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
deposited in the Collection Account for the related Collection Period after
giving effect to any allocations to the Dealer Overconcentration Series for such
Collection Period.
"Investor Principal Collections" shall mean, with respect to any
Distribution Date, the sum of (a) the product of (i) the Floating Allocation
Percentage, with respect to the Revolving Period, or the Principal Allocation
Percentage, with respect to the Accumulation Period or an Early Amortization
Period, for the related Collection Period (or the portion of the Collection
Period which occurs as part of the first Collection Period during an Early
Amortization Period), and (ii) Principal Collections for the related Collection
Period after giving effect to any allocations to the Dealer Overconcentration
Series for such Collection Period and (b) the amount, if any, of Non-Principal
Collections to be allocated with respect to the Investor Default Amount or
unreimbursed Class A, Class B or Class C Investor Charge-Offs pursuant to
Section 4.6(a)(vi) or 4.6(a)(vii); provided that in the case of clause (a), if
for any Distribution Date the sum of the Floating Allocation Percentage (if the
Revolving Period is in effect), the Principal Allocation Percentage (if the
Early Amortization Period or the Accumulation Period is in effect), the floating
allocation percentages for all other outstanding Series of Investor Certificates
in their revolving periods and
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the principal allocation percentages for all other outstanding Series of
Investor Certificates in their early amortization or accumulation periods
exceeds 100%, then, after giving effect to any allocations to the Dealer
Overconcentration Series, Principal Collections shall be allocated among all
Series (including Series 2000-1) pari passu and pro rata on the basis of such
floating allocation percentages and principal allocation percentages.
"LIBOR" shall mean, with respect to any Interest Period, the offered
rates for deposits in United States dollars having a maturity of one month (the
"Index Maturity") commencing on the related Adjustment Date which appears on the
Telerate Page 3750 as of approximately 11:00 A.M., London time, on the date of
calculation as determined by the Trustee. If at least two such offered rates
appear on the Telerate Page 3750, LIBOR shall be the arithmetic mean (rounded
upwards, if necessary, to the nearest one-sixteenth of a percent) of such
offered rates. If fewer than two such offered rates appear, LIBOR with respect
to such Interest Period shall be determined at approximately 11:00 A.M., London
time, on such Adjustment Date on the basis of the rate at which deposits in
United States dollars having the Index Maturity are offered to prime banks in
the London interbank market by four major banks in the London interbank market
selected by the Trustee and in a principal amount equal to an amount of not less
than U.S. $1,000,000 and that is representative for a single transaction in such
market at such time. The Trustee shall request the principal London office of
each of such banks to provide a quotation of its rate. If at least two such
banks quote rates to the Trustee, LIBOR shall be the arithmetic mean (rounded
upwards, if necessary, as aforesaid) of such quotations. If fewer than two of
such banks quote rates to the Trustee, LIBOR with respect to such Interest
Period shall be the arithmetic mean (rounded upwards as aforesaid) of the rates
quoted at approximately 11:00 A.M., New York City time, on such Adjustment Date
by three major banks in New York, New York selected by the Trustee for loans in
United States dollars to leading European banks having the Index Maturity and in
a principal amount equal to an amount of not less than U.S. $1,000,000 and that
is representative for a single transaction in such market at such time;
provided, however, that if the banks selected as aforesaid are not providing
quotations as mentioned in this sentence, LIBOR in effect for the applicable
period shall be LIBOR in effect for the previous period. Promptly after
calculation of LIBOR with respect to any Interest Period, the Trustee shall, if
any Certificates are listed on the Luxembourg Stock Exchange, communicate the
result of such calculation to the Luxembourg Stock Exchange in accordance with
instructions from the Servicer (which may be standing instructions).
"London Business Day" shall mean any business day on which dealings in
deposits in United States dollars are transacted in the London interbank market.
"Monthly Interest" shall have the meaning specified in Section 4.2.
"Monthly Principal" shall have the meaning specified in Section 4.3.
"Monthly Servicing Fee" shall have the meaning specified in Section
3.1.
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"Net Receivables Rate" shall mean, with respect to each Distribution
Date immediately following an Interest Period, (i) the weighted average of the
interest rates borne by the Receivables during the second Collection Period
preceding such Distribution Date (interest payments on the Receivables at such
rates being due and payable in the Collection Period preceding such Distribution
Date) plus (ii) the product of (x) the Monthly Payment Rate for the Collection
Period preceding such Distribution Date, (y) the Discount Factor for such
Distribution Date and (z) twelve less (iii) 2% per annum, unless the Monthly
Servicing Fee has been waived (other than a deemed waiver under Section 3.1) for
such Distribution Date, in which case, solely for that Distribution Date, "2%
per annum" will be deemed to be replaced by "0% per annum".
"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 Invested Amount as of
the last day of the Revolving Period and the denominator of which is the
Unconcentrated Pool Balance as of the last day of the immediately preceding
Collection Period.
"Principal Funding Account" shall have the meaning specified in Section
4.4(c).
"Private Holder" shall mean each holder of a right to receive interest
or principal in respect of any direct or indirect interest in the Trust,
including any financial instrument or contract the value of which is determined
in whole or part by reference to the Trust (including the Trust's assets, income
of the Trust or distributions made by the Trust), excluding any interest in the
Trust represented by any Series or Class of Certificates or any other interests
as to which the Trustee has received an Opinion of Counsel to the effect that
such Series, Class or other interest shall be treated as debt or otherwise not
as an equity interest in either the Trust or the Receivables for federal income
tax purposes (unless such interest is convertible or exchangeable into an
interest in the Trust or the Trust's income or such interest provides for
payment of equivalent value). Notwithstanding the immediately preceding
sentence, "Private Holder" shall also include any other Person that the Seller
determines is a "partner" within the meaning of Section 1.7704-1(h)(1)(ii) of
the U.S. Treasury Regulations (including by reason of Section 1.7704-1(h)(3)) or
any successor provision of law. Any Person holding more than one interest in the
Trust, each of which separately would cause such Person to be a Private Holder,
shall be treated as a single Private Holder. Each holder of an interest in a
Private Holder which is a partnership, S corporation or a grantor trust under
the Internal Revenue Code shall be treated as a Private Holder unless excepted
with the consent of the Seller (which consent shall be based on an Opinion of
Counsel generally to the effect that the action taken pursuant to the consent
shall not cause the Trust to become a publicly traded partnership treated as a
corporation). Notwithstanding anything to the contrary herein, each Class C
Certificateholder shall be considered to be a Private Holder.
"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 and (ii) the amounts distributable pursuant to Section
4.7(a)(i).
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"Required Participation Percentage" shall mean, with respect to Series
2000-1, 105%; provided, however, that the Seller may, upon 10 days' prior notice
to the Trustee, each Rating Agency and any Enhancement Provider, reduce the
Required Participation Percentage to a percentage which shall not be less than
100%; provided, however, that the Rating Agency Condition is satisfied.
"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 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) three and one-half
percent (3.5%) and (b) the aggregate outstanding principal balance of the Series
2000-1 Certificates as of such Distribution Date (after giving effect to any
changes therein on such Distribution Date).
"Revolving Period" shall mean the period beginning at the opening of
business on the Closing Date and ending on the earlier of (a) the close of
business on the day immediately preceding the Accumulation Period Commencement
Date, and (b) 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 Revolving Period shall recommence as of the close of business on
the day such Early Amortization Period ends.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series 2000-1" or the "Series 2000-1 Certificates" shall mean the
Series of Investor Certificates, the terms of which are specified in this Series
Supplement.
"Series 2000-1 Accounts" shall have the meaning specified in Section
4.4(f).
"Series 2000-1 Allocation Percentage" for a 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 Collection Period immediately
preceding such Collection Period and the denominator of which is the Trust
Invested Amount on such last Business Day.
"Series 2000-1 Certificateholders" shall mean, collectively, the Class
A Certificateholders, the Class B Certificateholders and the Class C
Certificateholders.
"Series 2000-1 Certificateholders' Interest" shall mean that portion of
the Certificateholders' Interest evidenced by the Series 2000-1 Certificates.
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"Series 2000-1 Certificates" shall mean, collectively, the Class A
Certificates, the Class B Certificates and the Class C Certificates.
"Series 2000-1 Excess Principal Collection" shall mean that portion of
Excess Principal Collections allocated to Series 2000-1 pursuant to Section
4.11.
"Series 2000-1 Principal Shortfall" with respect to any Distribution
Date, shall equal the excess of (i) (x) for any Distribution Date with respect
to the Accumulation Period, the Controlled Deposit Amount or (y) for any
Distribution Date with respect to an Early Amortization Period, the Invested
Amount, over (ii) Available Investor Principal Collections for such Distribution
Date (excluding any portion thereof attributable to Excess Principal
Collections).
"Servicer Advance" shall have the meaning specified in Section 3.2.
"Servicing Fee Rate" shall mean, with respect to Series 2000-1, 2.00%.
"Special Payment Date" shall mean each Distribution Date with respect
to an Early Amortization Period (other than an Early Amortization Period that
has ended as described in clause (c) of the definition of Early Amortization
Period in the Agreement).
"Telerate Page 3750" shall mean the display designated as page 3750 on
Telerate (or such other page as may replace such page on that service for the
purpose of displaying London interbank offered rates of major banks).
"Termination Date" for Series 2000-1 shall mean the April 2005
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 2000-1.
"Yield Supplement Account" shall have the meaning specified in Section
4.4(e).
"Yield Supplement Account Deposit Amount" shall mean, with respect to
any Distribution Date, the amount, if any, by which the Yield Supplement Account
Required Amount exceeds the amount on deposit in the Yield Supplement Account
after giving effect to any withdrawals from the Yield Supplement Account on that
Distribution Date.
"Yield Supplement Account Required Amount" shall mean an amount equal
to one-half of one percent (0.5%) of the aggregate initial principal balance of
the Series 2000-1 Certificates.
(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 2000-1, Standard &
Poor's, Moody's and Fitch. As used in this Series Supplement and in the
Agreement with respect to Series 2000-1, "highest
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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. 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".
(e) All references to any agreement (including the Agreement) shall be
understood to be references to such agreement as it may be amended, amended and
restated or otherwise modified from time to time.
ARTICLE III
Servicing Fee
SECTION 3.1 Servicing Compensation. A monthly servicing fee for your
series (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 product of (i) the Series 2000-1 Allocation
Percentage and (ii) the Pool Balance as of the last day of the second Collection
Period preceding such Distribution Date. The share of the Monthly Servicing Fee
allocable to the Series 2000-1 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 second Collection Period second
preceding such Distribution Date and shall be payable in the manner set forth in
Section 4.6 and Section 4.10; provided, however, that with respect to the first
Distribution Date for Series 2000-1, clause (b) of this sentence shall be deemed
to refer to the Invested Amount on the Closing Date. Notwithstanding the
foregoing, with respect to the first Distribution Date for Series 2000-1, 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 2000-1
Certificateholders be liable for the share of the
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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, the Trustee and the Series 2000-1 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 or to the extent that amounts may be netted with respect thereto in
accordance with the terms of this Series Supplement or the Agreement.
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 reasonably
believes that sufficient Non-Principal Collections shall be available on any
future Distribution Date to pay 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 and the Agreement; provided, however, that such Monthly Servicing Fee
shall be paid on a future Distribution Date to the extent amounts are available
therefor pursuant to Section 4.10(a) or to the extent that amounts may be netted
with respect thereto in accordance with the terms of this Series Supplement or
the Agreement; provided further, however, that, to the extent any such waived
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.
If the Servicer is DFS, and payment of any portion of the Monthly
Servicing Fee to DFS on a Distribution Date would require a withdrawal from the
Reserve Fund, then absent affirmative notice to the Trustee by DFS to the
contrary, DFS shall be deemed to have waived payment of that portion on that
Distribution Date; provided that a deemed waiver described in this sentence
shall not occur on more than two Distribution Dates in any twelve month period
and shall not occur on any two consecutive Distribution Dates.
SECTION 3.2 Servicer Advances. On or before each Distribution Date, the
Servicer will deposit into the Collection Account as an advance (a "Servicer
Advance") an amount equal to the amount of interest due but unpaid on any
Receivable for the related Collection Period (but only to the extent that the
Servicer reasonably expects to recover that Servicer Advance from subsequent
payments on that delinquent Receivable). No Servicer Advance shall be made by
the Servicer for the principal portion of the Receivables or for Defaulted
Receivables. The Servicer shall reimburse itself for a Servicer Advance on the
subsequent Determination Date or Distribution Date (and, if necessary, on other
Determination Dates or Distribution Dates) out of funds collected on all
Receivables prior to the deposit of funds in the Collection Account.
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ARTICLE IV
Rights of Series 2000-1 Certificateholders and
Allocation and Application of Collections
SECTION 4.1 Allocations; Payments to Seller. (a) Subject to Section
4.3(c) of the Agreement, and after giving effect to any allocations to the
Dealer Overconcentration Series, Collections of Non-Principal Receivables and
Principal Receivables, Miscellaneous Payments and Defaulted Amounts, as they
relate to Series 2000-1, shall be allocated and distributed as set forth in this
Article IV.
(b) The Servicer shall instruct the Trustee to withdraw from the
Collection Account and pay (and the Trustee shall so withdraw and pay) to the
Seller on each Deposit Date any funds not required to be held therein (or not
required to be transferred from the Collection Account to a deposit account for
the benefit of Investor Certificateholders of any Series).
The withdrawals to be made from the Collection Account pursuant to this
Section 4.1(b) do not apply to deposits into the Collection Account that do not
represent Collections, including Miscellaneous Payments, payment of the purchase
price for the Certificateholders' Interest pursuant to Section 2.3 of the
Agreement, payment of the purchase price for the Series 2000-1
Certificateholders' Interest pursuant to Section 7.1 of this Series Supplement
and proceeds from the sale, disposition or liquidation of Receivables pursuant
to Section 9.2 or 12.2 of the Agreement.
SECTION 4.2 Monthly Interest; Determination of Certificate Rate. (a)
"Monthly Interest" with respect to the Series 2000-1 Certificates on any
Distribution Date shall be an amount equal to the sum of the Class A Monthly
Interest, the Class B Monthly Interest and the Class C Monthly Interest.
Interest on the respective outstanding principal balance of each Class of
Certificates shall accrue at the Class A Certificate Rate, Class B Certificate
Rate or Class C Certificate Rate, as applicable, and shall be payable to
Certificateholders on each Distribution Date.
On the Determination Date preceding each Distribution Date, the
Servicer shall determine the excess, if any (the "Class A Interest Shortfall"),
of (x) the Class A Monthly Interest for the Interest Period applicable to such
Distribution Date over (y) the amount which shall be available to be paid to the
Class A Certificateholders as Class A Monthly Interest from the Interest Funding
Account on such Distribution Date pursuant to this Series Supplement. "Class A
Additional Interest" shall mean, as of any Distribution Date, an amount equal to
the product of (i) the Class A Certificate Rate for the Interest Period then
ended, (ii) a fraction the numerator of which is the actual number of days in
that Interest Period and the denominator of which is 360, and (iii) the Class A
Interest Shortfall, if any, for the previous Distribution Date. Notwithstanding
anything to the contrary herein, Class A Additional Interest shall be payable to
the Interest Funding Account or distributed to Class A Certificateholders only
to the extent permitted by applicable law.
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On the Determination Date preceding each Distribution Date, the
Servicer shall determine the excess, if any (the "Class B Interest Shortfall"),
of (x) the Class B Monthly Interest for the Interest Period applicable to such
Distribution Date over (y) the amount which shall be available to be paid to the
Class B Certificateholders as Class B Monthly Interest from the Interest Funding
Account on such Distribution Date pursuant to this Series Supplement. "Class B
Additional Interest" shall mean, as of any Distribution Date, an amount equal to
the product of (i) the Class B Certificate Rate for the Interest Period then
ended, (ii) a fraction the numerator of which is the actual number of days in
that Interest Period and the denominator of which is 360, and (iii) the Class B
Interest Shortfall, if any, for the previous Distribution Date. Notwithstanding
anything to the contrary herein, Class B Additional Interest shall be payable to
the Interest Funding Account or distributed to Class B Certificateholders only
to the extent permitted by applicable law.
On the Determination Date preceding each Distribution Date, the
Servicer shall determine the excess, if any (the "Class C Interest Shortfall"),
of (x) the Class C Monthly Interest for the Interest Period applicable to such
Distribution Date over (y) the amount which shall be available to be paid to the
Class C Certificateholders as Class C Monthly Interest from the Interest Funding
Account on such Distribution Date pursuant to this Series Supplement. "Class C
Additional Interest" shall mean, as of any Distribution Date, an amount equal to
the product of (i) the Class C Certificate Rate for the Interest Period then
ended, (ii) a fraction the numerator of which is the actual number of days that
Interest Period and the denominator of which is 360, and (iii) such Class C
Interest Shortfall, if any, for the previous Distribution Date. Notwithstanding
anything to the contrary herein, Class C Additional Interest shall be payable to
the Interest Funding Account or distributed to Class C Certificateholders only
to the extent permitted by applicable law.
(b) The Distribution Date Statement shall specify the applicable Net
Receivables Rate for the next Interest Period. Based on such Distribution Date
Statement (and on the Trustee's calculation of LIBOR) the Trustee shall
determine the Class A, Class B and Class C Certificate Rates for each Interest
Period on the Determination Date immediately preceding each Interest Period. The
Trustee shall notify the Servicer on each Adjustment Date of the Trustee's
determination of LIBOR. The establishment of LIBOR on each Adjustment Date (or
in the case of the date specified in the proviso to the definition of Adjustment
Date, promptly following such date) by the Trustee and the Trustee's calculation
of the Class A, Class B and Class C Certificate Rates shall (in the absence of
manifest error) be final and binding.
SECTION 4.3 Determination of Monthly Principal. The amount of monthly
principal ("Monthly Principal") distributable with respect to the Series 2000-1
Certificates on each Distribution Date with respect to an Early Amortization
Period and the Accumulation Period shall be equal to the Available Investor
Principal Collections with respect to such Distribution Date; provided, however,
that for each Distribution Date with respect to the Accumulation Period, Monthly
Principal, at the option of the Seller, may be increased to include amounts
otherwise payable or distributable to the Seller (including without limitation
(i) amounts allocable to other Series but not required to be paid to such other
Series on such Distribution Date and not required
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to be kept in a deposit account for such other Series after such Distribution
Date and (ii) Collections otherwise allocable to the Seller's Interest)) or may
be limited to the Controlled Deposit Amount for such Distribution Date; and
provided further, however, that Monthly Principal shall not exceed the
outstanding principal balance of the Series 2000-1 Certificates.
SECTION 4.4 Establishment of Reserve Fund and Funding Accounts. (a)(i)
The Trustee, for the benefit of the Series 2000-1 Certificateholders, shall
cause to be established and maintained in the name of the Trustee, on behalf of
the Trust, an Eligible Deposit Account (the "Reserve Fund") which shall be
identified as the "Reserve Fund for the Distribution Financial Services
Floorplan Master Trust, Series 2000-1" and shall bear a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Series 2000-1 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 2000-1 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 and 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 2000-1
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 2000-1" and shall
bear a designation clearly indicating that the funds deposited therein are held
for the benefit of the Series 2000-1 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 2000-1 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 and
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 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 Series 2000-1
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 2000-1" and shall
bear a
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designation clearly indicating that the funds deposited therein are held for the
benefit of the Series 2000-1 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 Distribution Date. All such Eligible Investments shall
be held by the Trustee for the benefit of the Series 2000-1 Certificateholders.
On each Distribution Date all interest and other investment earnings (net of
losses and investment expenses) on funds on deposit in the Principal Funding
Account and 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
Principal Funding Account on the Business Day preceding the Expected Final
Payment Date are not required to be invested overnight.
(d)(i) The Trustee, for the benefit of the Series 2000-1
Certificateholders, shall establish and maintain in the name of the Trustee, on
behalf of the Trust, an Eligible Deposit Account (the "Excess Funding Account"),
which shall be identified as the "Excess Funding Account for Distribution
Financial Services Floorplan Master Trust, Series 2000-1" and shall bear a
designation clearly indicating that the funds deposited therein are held for the
benefit of the Series 2000-1 Certificateholders.
(ii) At the direction of the Servicer, funds on deposit in the Excess
Funding Account shall be invested by the Trustee in Eligible Investments
selected by the Servicer. All such Eligible Investments shall be held by the
Trustee for the benefit of the Series 2000-1 Certificateholders. On each
Distribution Date, all interest and other investment earnings (net of losses and
investment expenses) on funds on deposit in the Excess Funding Account and
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 Excess Funding
Account on any Distribution Date shall be invested in Eligible Investments that
shall mature so that such funds shall be available on or before the close of
business on the Business Day next preceding the following Distribution Date;
provided that if, pursuant to Section 4.12, deposits to and withdrawals from the
Excess Funding Account are being made on a weekly or daily basis, then such
Eligible Investments shall mature on each Business Day on a weekly or daily
basis, as the case may be; provided further that such Eligible Investments shall
still mature so that funds shall be available on or before the close of business
on the Business Day next preceding the following Distribution Date. Funds
deposited in the Excess Funding Account on the Business Day preceding a
Distribution Date are not required to be invested overnight.
(e)(i) The Trustee, for the benefit of the Series 2000-1
Certificateholders, shall establish and maintain in the name of the Trustee, on
behalf of the Trust, an Eligible Deposit Account (the "Yield Supplement
Account"), which shall be identified as the "Yield Supplement Account for the
Distribution Financial Services Floorplan Master Trust, Series 2000-1" and shall
bear a designation clearly indicating that the funds deposited therein are held
for the benefit of the Series 2000-1 Certificateholders.
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(ii) At the direction of the Servicer, funds on deposit in the Yield
Supplement 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 2000-1 Certificateholders. On each
Distribution Date, all interest and other investment earnings (net of losses and
investment expenses) on funds on deposit in the Yield Supplement Account and
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 Yield
Supplement Account on the Business Day preceding a Distribution Date are not
required to be invested overnight.
(f)(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, the Principal
Funding Account, the Yield Supplement Account and the Excess Funding Account
(collectively, the "Series 2000-1 Accounts") and in all proceeds thereof. The
Series 2000-1 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 2000-1 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 2000-1 Account meeting the conditions specified
in paragraph (a)(i), (b)(i), (c)(i), (d)(i) or (e)(i) above, as applicable, as
an Eligible Deposit Account and shall transfer any cash and/or investments to
such new Series 2000-1 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 2000-1 Account, except as
expressly provided herein. Schedule 1, which is hereby incorporated into and
made part of this Series Supplement, identifies each Series 2000-1 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 2000-1 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 2000-1
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 2000-1 Accounts for the purposes of
carrying out the Servicer's or the Trustee's duties hereunder.
(g) Unless otherwise agreed to by the Rating Agencies, at no time may
funds on deposit in any Series 2000-1 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.
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(h) Upon payment in full of all amounts payable on the Series 2000-1
Certificates pursuant to this Series Supplement, or any earlier date
contemplated by this Series Supplement, any funds remaining on deposit in any
Series 2000-1 Account shall be paid to the Seller.
(i) The Trustee shall not in any way be held liable by reason of any
insufficiency in any Series 2000-1 Account held by the Trustee resulting from
any investment loss on any Eligible Investment included therein (except to the
extent that the Trustee is the obligor and has defaulted thereon).
SECTION 4.5 Deficiency Amount. On each Determination Date, with respect
to the related Distribution Date (the "current Distribution Date"), the Servicer
shall determine the amount (the "Deficiency Amount"), if any, by which
(a) the sum of
(i) the Monthly Interest for the current Distribution Date,
(ii) any Monthly Interest for any prior Distribution Dates not
distributed to the Certificateholders on a prior Distribution Date,
(iii) Additional Interest, if any, for the current Distribution
Date and any Additional Interest for any prior Distribution Date not
distributed to the Certificateholders on such prior Distribution Date
(but only to the extent permitted by applicable law),
(iv) the Certificateholders' Monthly Servicing Fee for the
current Distribution Date,
(v) the Investor Default Amount for the current Distribution
Date, and
(vi) the Series 2000-1 Allocation Percentage of the amount 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 Investor Non-Principal Collections for the current
Distribution Date plus any Investment Proceeds, if any, with respect
to such Distribution Date.
SECTION 4.6 Application of Investor Non-Principal Collections, Investment
Proceeds, Servicer Advances and Available Investor Principal Collections. The
Servicer shall direct the
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Trustee (by setting forth the following amounts in the related Distribution Date
Statement) to make the following distributions on each Distribution Date (and
the Trustee shall distribute):
(a) On each Distribution Date, an amount equal to the sum of Investor
Non-Principal Collections on deposit in the Collection Account (after giving
effect to repayment to the Servicer of any Servicer Advances from any previous
Distribution Dates) and any Investment Proceeds and the Servicer Advance, if
any, for such Distribution Date, with respect to such Distribution Date in the
following priority:
(i) first, an amount equal to the Class A Monthly Interest
for such Distribution Date, plus the amount of any Class A Monthly
Interest for any prior Distribution Dates not distributed to the Class
A Certificateholders on such prior Distribution Dates plus (but only to
the extent permitted under applicable law) the amount of any Class A
Additional Interest for the current Distribution Date and, without
duplication, any Class A Additional Interest previously due but not
distributed to the Class A Certificateholders on prior Distribution
Dates, shall be deposited to the Interest Funding Account;
(ii) second, an amount equal to the Class B Monthly
Interest for such Distribution Date, plus the amount of any Class B
Monthly Interest for any prior Distribution Dates not distributed to
the Class B Certificateholders on such prior Distribution Dates plus
(but only to the extent permitted under applicable law) the amount of
any Class B Additional Interest for the current Distribution Date and,
without duplication, any Class B Additional Interest previously due but
not distributed to the Class B Certificateholders on prior Distribution
Dates, shall be deposited to the Interest Funding Account;
(iii) third, an amount equal to the Class C Monthly
Interest for such Distribution Date, plus the amount of any Class C
Monthly Interest for any prior Distribution Dates not distributed to
the Class C Certificateholders on such prior Distribution Dates plus
(but only to the extent permitted under applicable law) the amount of
any Class C Additional Interest for the current Distribution Date and,
without duplication any Class C Additional Interest previously due but
not distributed to the Class C Certificateholders on prior Distribution
Dates, shall be deposited to the Interest Funding Account;
(iv) fourth, so long as DFS is not the Servicer, an amount
equal to the Certificateholders' Monthly Servicing Fee for such
Distribution Date shall be distributed to the Servicer (unless such
amount has been netted against deposits to the Collection Account);
(v) fifth, an amount equal to the Reserve Fund Deposit
Amount, if any, for such Distribution Date shall be deposited in the
Reserve Fund;
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(vi) sixth, an amount equal to the Investor Default
Amount, if any, for such Distribution Date shall be treated as a
portion of Investor Principal Collections for such Distribution Date;
(vii) seventh, an amount required to reimburse
unreimbursed Class A Investor Charge-Offs, Class B Investor Charge-Offs
and Class C Investor Charge-Offs pursuant to Section 4.9 shall be
treated as a portion of Investor Principal Collections for such
Distribution Date;
(viii) eighth, so long as DFS is the Servicer, an amount
equal to the Certificateholders' Monthly Servicing Fee for that
Distribution Date shall be distributed to the Servicer, unless that
amount has been netted against deposits to the Collection Account by
DFS or waived;
(ix) ninth, any unpaid Class A Carry-over Amount, Class B
Carry-over Amount or Class C Carry-over Amount for any previous
Distribution Date, plus to the extent permitted under applicable law,
the amount of any Class A Carry-over Amount Additional Interest, Class
B Carry-over Amount Additional Interest and Class C Carry-over Amount
Additional Interest for the current Distribution Date and, without
duplication, any Class A Carry-over Amount Additional Interest, Class B
Carry-over Amount Additional Interest and Class C Carry-over Amount
Additional Interest previously due but not distributed to the Class A
Certificateholders, Class B Certificateholders and Class C
Certificateholders, respectively, shall be deposited in the Interest
Funding Account;
(x) tenth, if that Distribution Date occurs prior to the
beginning of the Accumulation Period and prior to the occurrence of an
Early Amortization Event, an amount equal to the Yield Supplement
Account Deposit Amount, if any, for that Distribution Date will be
deposited in the Yield Supplement Account; and
(xi) eleventh, the balance, if any, shall constitute
"Excess Servicing" and shall be allocated and distributed as set forth
in Section 4.10.
(b) On each Distribution Date with respect to the Revolving Period, the
Servicer shall direct the Trustee in writing by setting forth the following
amounts on the Distribution Date Statement to apply an amount equal to the
Available Investor Principal Collections deposited in the Collection Account for
the related Collection Period shall be applied in the following priority:
(i) first, if (A) the Unconcentrated Pool Balance at the
end of the preceding Collection Period is less than the Unconcentrated
Pool Balance at the end of the second preceding Collection Period and
(B) the Unconcentrated Pool Balance at the end of the preceding
Collection Period is less than the Required Participation Amount for
such Distribution Date (calculated before giving effect to any deposits
to be made on such Distribution Date to the Excess Funding Account and
any excess funding account for any
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other Series in their revolving periods to be made on such Distribution
Date), then the Servicer shall direct the Trustee to deposit (and the
Trustee shall deposit) Available Investor Principal Collections into
the Excess Funding Account in an amount which shall reduce the Invested
Amount such that, together with the deposits to the excess funding
accounts, if any, (and any resulting reductions in the invested
amounts) for other outstanding Series in their revolving periods for
such Distribution Date, the Unconcentrated Pool Balance is equal to the
Required Participation Amount, and
(ii) second, an amount equal to the balance (such balance
being part of "Excess Principal Collections"), if any, of such
Available Investor Principal Collections shall be applied in accordance
with Section 4.4 of the Agreement.
For purposes of determining the amount to be applied pursuant to subparagraph
(i) above, allocations of the amounts to be deposited in the Excess Funding
Account and the excess funding account for other outstanding Series shall be
made pro rata on the basis of the invested amounts (including the Invested
Amount for Series 2000-1).
If the Servicer has elected in respect of a Collection Period to make
withdrawals from the Excess Funding Account on a daily or weekly basis pursuant
to Section 4.12(b), then deposits into the Excess Funding Account required by
this Section 4.6(b) shall be made on each Business Day in such Collection Period
(if daily withdrawals and deposits have been elected) or on each Wednesday (or
the next succeeding Business Day if such Wednesday is not a Business Day) in
such Collection Period (if weekly withdrawals and deposits have been elected).
In the case of such election, the Unconcentrated Pool Balance referred to in
clause (B) above shall be the Unconcentrated Pool Balance on the preceding
Business Day, in the case of an election to make daily deposits and withdrawals,
and on the Monday next preceding the related Wednesday, in the case of an
election to make weekly deposits and withdrawals.
(c) On each Distribution Date (x) with respect to the
Accumulation Period or (y) an Early Amortization Period (if a Responsible
Officer of the Trustee has actual knowledge of such Early Amortization Period),
an amount equal to the Available Investor Principal Collections on deposit in
the Collection Account shall be distributed in the following priority:
(i) first, an amount equal to Monthly Principal for such
Distribution Date shall be deposited by the Servicer or the Trustee
into the Principal Funding Account; and
(ii) second, for each Distribution Date with respect to
the Accumulation Period (unless an Early Amortization Event has
occurred), an amount equal to the balance (such balance being part of
"Excess Principal Collections"), if any, of such Available Investor
Principal Collections shall be applied in accordance with the written
instructions of the Servicer in accordance with Section 4.4 of the
Agreement.
SECTION 4.7 Distributions to Series 2000-1 Certificateholders. (a) The
Servicer shall direct the Trustee (by setting forth the amounts in Section
4.7(a)(i) in the related Distribution
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Date Statement) to make (and the Trustee shall make) the following distributions
at the following times from the Interest Funding Account, the Principal Funding
Account and the Excess Funding Account:
(i) on each Distribution Date, available amounts on
deposit in the Interest Funding Account shall be distributed to the
Series 2000-1 Certificateholders in the following order of priority:
(A) first, to the Class A Certificateholders, an
amount equal to the sum of (i) the Class A Monthly Interest
for the current Distribution Date, plus (ii) any Class A
Monthly Interest that was not distributed on any prior
Distribution Date to the Class A Certificateholders, plus
(iii) to the extent permitted under applicable law, the amount
of any Class A Additional Interest for the current
Distribution Date and, without duplication, any Class A
Additional Interest previously due but not distributed to the
Class A Certificateholders;
(B) second, to the Class B Certificateholders, an
amount equal to the sum of (i) the Class B Monthly Interest
for the current Distribution Date, plus (ii) any Class B
Monthly Interest that was not distributed on any Distribution
Date prior to the current Distribution Date to the Class B
Certificateholders, plus (iii) to the extent permitted under
applicable law, the amount of any Class B Additional Interest
for the current Distribution Date and, without duplication,
any Class B Additional Interest previously due but not
distributed to the Class B Certificateholders;
(C) third, to the Class C Certificateholders, an
amount equal to the sum of (i) the Class C Monthly Interest
for the current Distribution Date, plus (ii) any Class C
Monthly Interest that was not distributed on any Distribution
Date prior to the current Distribution Date to the Class C
Certificateholders, plus (iii) to the extent permitted under
applicable law, the amount of any Class C Additional Interest
for the current Distribution Date and, without duplication,
any Class C Additional Interest previously due but not
distributed to the Class C Certificateholders;
(D) fourth, to the Class A Certificateholders, the
sum of any Class A Carry-over Amount for the current
Distribution Date plus any unpaid Class A Carry-over Amount
for any previous Distribution Date plus to the extent
permitted under applicable law, the amount of any Class A
Carry-over Amount Additional Interest for the current
Distribution Date and, without duplication, any Class A
Carry-over Amount Additional Interest previously due but not
distributed to the Class A certificateholders;
(E) fifth, to the Class B Certificateholders, the
sum of any Class B Carry-over Amount for the current
Distribution Date plus any unpaid Class B
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Carry-over Amount for any previous Distribution Date plus to
the extent permitted under applicable law, the amount of any
Class B Carry-over Amount Additional Interest for the current
Distribution Date and, without duplication, any Class B
Carry-over Amount Additional Interest previously due but not
distributed to the Class B certificateholders; and
(F) sixth, to the Class C Certificateholders, the sum
of any Class C Carry-over Amount for the current Distribution
Date plus any unpaid Class C Carry-over Amount for any
previous Distribution Date plus to the extent permitted under
applicable law, the amount of any Class C Carry-over Amount
Additional Interest for the current Distribution Date and,
without duplication, any Class C Carry-over Amount Additional
Interest previously due but not distributed to the Class C
certificateholders.
(ii) on each Special Payment Date (if a Responsible Officer of
the Trustee has actual knowledge of the Early Amortization Period) and
on the Expected Final Payment Date, all amounts on deposit in the
Principal Funding Account shall be distributed to the Series 2000-1
Certificateholders in the following order of priority: (A) first, to
the Class A Certificateholders until the outstanding principal balance
of the Class A Certificates has been reduced to zero; (B) second, to
the Class B Certificateholders until the outstanding principal balance
of the Class B Certificates has been reduced to zero; and (C) to the
Class C Certificateholders until the outstanding principal balance of
the Class C Certificates has been reduced to zero; provided, however,
that the maximum amount distributed pursuant to this clause (ii) on any
Distribution Date shall not exceed the excess, if any, of (x) the sum
of the outstanding principal balance of the Class A, Class B and Class
C Certificates, over (y) the sum of the unreimbursed Class A Investor
Charge-Offs, Class B Investor Charge-Offs and Class C Investor
Charge-Offs, each on such Distribution Date.
(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. (a) If Investor Non-Principal
Collections and Investment Proceeds on any Distribution Date (plus the amount of
any Servicer Advance for such Distribution Date) are not sufficient to make the
entire distributions required on such Distribution Date by Sections 4.6(a)(i),
(ii), (iii), (iv), (vi) and (viii), the Servicer shall direct the Trustee to
withdraw (and the Trustee shall 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), (iii), (iv), (vi) and (viii) in the
numerical order thereof.
(b) On the Termination Date, any funds in the Reserve Fund shall be
treated as Available Investor Principal Collections. Upon payment in full of the
outstanding principal balance of the
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Series 2000-1 Certificates, any funds remaining on deposit in the Reserve Fund
shall be paid to the Seller.
SECTION 4.9 Investor Charge-Offs. If on any Distribution Date (after
giving effect to the allocations, distributions, withdrawals and deposits to be
made on such Distribution Date) the balance of the Reserve Fund is zero, then
the Class C Invested Amount shall be reduced by the lesser of the Deficiency
Amount for that Distribution Date and the Investor Default Amount for that
Distribution Date (the lesser of such Deficiency Amount and such Investor
Default Amount being a "Class C Investor Charge-Off"). In the event that any
such reduction of the Class C Invested Amount would cause the Class C Invested
Amount to be a negative number, the Class C Invested Amount shall be maintained
at or reduced to zero, and the Class B Invested Amount shall be reduced by the
amount of such excess (the amount of such reduction being a "Class B Investor
Charge-Off"). In the event that any such reduction of the Class B Invested
Amount would cause the Class B Invested Amount to be a negative number, the
Class B Invested Amount shall be maintained at or reduced to zero, and the Class
A Invested Amount shall be reduced by the amount of such excess but not by more
than the Class A Invested Amount on such Distribution Date (the amount of such
reduction being a "Class A Investor Charge-Off"). Class A Investor Charge-Offs,
Class B Investor Charge-Offs and Class C Investor Charge-Offs shall thereafter
be reimbursed (in that order) and the Class A Invested Amount, Class B Invested
Amount and Class C Invested Amount increased (in that order) (but not by an
amount in excess of the aggregate unreimbursed Class A Investor Charge-Offs,
Class B Investor Charge-Offs and Class C Investor Charge-Offs, as the case may
be) on any Distribution Date by the sum of (a) Allocable Miscellaneous Payments
with respect to such Distribution Date and (b) the amount allocated and
available for that purpose pursuant to Section 4.6(a)(vii). The Servicer shall
be responsible for calculating Class A, Class B and Class C Investor Charge-Offs
and shall give the Trustee notice thereof by setting forth such amounts in the
Distribution Date Statement.
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 for such Distribution Date to make the following distributions in the
following priority:
(a) an amount equal to the aggregate outstanding amounts of
the 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.
SECTION 4.11 Excess Principal Collections.
"Series 2000-1 Excess Principal Collections", with respect to any
Distribution Date, shall mean an amount equal to the lesser of (a) the Series
2000-1 Principal Shortfall, if any, for such Distribution Date and (b) an amount
equal to the product of (x) excess principal collections for all Series for such
Distribution Date and (y) a fraction, the numerator of which is the Series
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2000-1 Principal Shortfall for such Distribution Date and the denominator of
which is the aggregate amount of principal shortfalls for all Series for such
Distribution Date.
SECTION 4.12 Excess Funding Account. (a) Any funds on deposit in the
Excess Funding Account at the beginning of the Accumulation Period or upon the
occurrence of an Early Amortization Event shall be deposited in the Principal
Funding Account. In addition, no funds shall be deposited in the Excess Funding
Account during the Accumulation Period or any Early Amortization Period.
(b) If (i) on any Determination Date during the Revolving Period there
are any funds in the Excess Funding Account and (ii) the Unconcentrated Pool
Balance at the end of the preceding Collection Period is greater than the
Unconcentrated Pool Balance at the end of the second preceding Collection
Period, then, subject to the other provisions of this Section 4.12(b) and to
Sections 4.12(c) and (d), the Invested Amount and the invested amounts (but, in
each case, not in excess of the initial principal amount of such Series) for all
other outstanding Series that provide for an excess funding account or similar
arrangement and are in their revolving periods shall be increased such that,
after giving effect to such increases, the Required Participation Amount is at
least equal to the Unconcentrated Pool Balance. On such Determination Date, the
Servicer shall notify the Trustee of the amount, if any, of such increase in the
Invested Amount and the Trustee shall withdraw from the Excess Funding Account
and pay to the Seller or allocate to one or more other Series, on the
immediately succeeding Distribution Date, an amount equal to the amount of such
increase in the Invested Amount. To the extent that the Invested Amount is
increased by any payment to the Seller or any allocation to one or more other
Series, the Seller's Interest or such other Series' invested amount, as
applicable, shall be reduced by the amount of such payment. In addition, any
increase in the Invested Amount is subject to the condition that after giving
effect to such increase the Unconcentrated Pool Balance equals or exceeds the
Required Participation Amount. In connection with the foregoing, the Seller
shall endeavor (taking into account any seasonality experienced in the Accounts
in the Trust) to minimize the amounts on deposit, from time to time, in the
Excess Funding Account.
The Seller may elect to make withdrawals from the Excess Funding
Account and the excess funding accounts or similar arrangements for other Series
on a daily or weekly basis during a Collection Period by giving the Trustee
notice of such election at least two Business Days and no more than five
Business Days prior to the commencement of such daily or weekly withdrawals. If
such election is made, then deposits into the Excess Funding Account and excess
funding accounts or similar arrangements for other Series shall be made on a
similar basis for the related Collection Period. If such election is for
withdrawals on a daily basis, then such withdrawals shall be made on each
Business Day and the Unconcentrated Pool Balance to be referenced shall be the
Unconcentrated Pool Balance on the next preceding Business Day. If such election
is for withdrawals on a weekly basis, then such withdrawals shall be made on
each Wednesday (or if such Wednesday is not a Business Day, then on the Business
Day next succeeding such Wednesday) and the Unconcentrated Pool Balance to be
referenced shall be the Unconcentrated Pool Balance on the preceding Monday.
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(c) In the event that other Series issued by the Trust provide for
excess funding accounts or other arrangements similar to the Excess Funding
Account involving fluctuating levels of investments in Principal Receivables,
(i) the allocation of additional Principal Receivables to increase the Invested
Amount and the invested amounts of such other Series (and the related
withdrawals from the Excess Funding Account and the other excess funding or
similar accounts) shall be based on the proportion that the amount on deposit in
the Excess Funding Account bears to amounts on deposit in the excess funding
accounts (including the Excess Funding Account) of all Series providing for
excess funding accounts or such similar arrangements or to amounts otherwise
similarly available and (ii) the deposit of amounts into the Excess Funding
Account and the excess funding accounts of such other Series shall be pro rata
based on the proportion that the Invested Amount bears to the invested amounts
(including the Invested Amount) of all Series providing for excess funding
accounts or such similar arrangements.
(d) In the event that any other Series is in an amortization period,
early amortization period or accumulation period, the amounts of any withdrawals
from the Excess Funding Account shall be applied first to satisfy in full any
then applicable funding or payment requirements of such Series and second to
make a payment to the Seller. In the event that more than one other Series is in
an amortization period, early amortization period or accumulation period, the
amounts of any withdrawals from the Excess Funding Account shall be allocated
(and, if necessary, reallocated) among such Series as specified in the related
Supplements for such Series, to meet the funding or payment requirements of each
such Series first to satisfy in full all then applicable funding or payment
requirements of each such Series and second to make a payment to the Seller.
SECTION 4.13 Yield Supplement Account. On each Distribution Date prior
to the beginning of the Accumulation Period and prior to the occurrence of an
Early Amortization Event, the Trustee shall deposit Non-Principal Collections
and Investment Proceeds, if any--to the extent available pursuant to Section
4.6(a)(x)--into the Yield Supplement Account in an amount equal to the Yield
Supplement Account Deposit Amount, if any, for that Distribution Date.
If the Class A Monthly Interest, Class B Monthly Interest or Class C
Monthly Interest for any Distribution Date, determined as if the interest rate
were based on LIBOR plus the applicable margin, exceeds the applicable monthly
interest determined on the basis of the related Net Receivables Rate, the
Servicer shall direct the Trustee to withdraw (and the Trustee shall withdraw)
funds from the Yield Supplement Account, to the extent available, and apply
those funds to deposit the amount of such excess into the Interest Funding
Account first, for the benefit of the Class A Certificates, second, for the
benefit of the Class B Certificates, and third, for the benefit of the Class C
Certificates.
Any funds on deposit in the Yield Supplement Account at the beginning
of the Accumulation Period or upon the occurrence of an Early Amortization Event
shall be deposited in the Principal Funding Account.
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ARTICLE V
Distribution and Reports to
Series 2000-1 Certificateholders
SECTION 5.1 Distributions. (a) On each Distribution Date, the Trustee
as paying agent shall distribute to each Series 2000-1 Certificateholder of
record on the preceding Record Date (other than as provided in Section 12.2 of
the Agreement respecting a final distribution) such Series 2000-1
Certificateholder's pro rata share (based on the outstanding principal balances
of the Series 2000-1 Certificates held by such Certificateholder) of the amounts
on deposit in the Series 2000-1 Accounts as is payable to Series 2000-1
Certificateholders on such Distribution Date pursuant to and subject to the
applicable 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 2000-1 Certificateholders
hereunder shall be made by check mailed to each Series 2000-1 Certificateholder
at such Certificateholder's address appearing in the Certificate Register
without presentation or surrender of any Series 2000-1 Certificate or the making
of any notation thereon; provided, however, that with respect to Series 2000-1
Certificates registered in the name of a Depository, such distributions shall be
made to such Depository in immediately available funds.
For so long as any of the Series 2000-1 Certificates are listed on the
Luxembourg Stock Exchange, the Trustee shall notify the Luxembourg Stock
Exchange in the event that any of such Series 2000-1 Certificates listed on the
Luxembourg Stock Exchange do not receive scheduled distributions of interest or
principal on any Distribution Date in accordance with instructions from the
Servicer (which may be standing instructions).
SECTION 5.2 Reports and Statements to Series 2000-1 Certificateholders.
(a) At least two Business Days prior to each Distribution Date, the Servicer
shall provide to the Trustee, the Rating Agencies and, for so long as any Series
2000-1 Certificates are listed on the Luxembourg Stock Exchange, such exchange,
a statement substantially in the form of Exhibit B (a "Distribution Date
Statement"), and on each Distribution Date the Trustee shall forward to each
Series 2000-1 Certificateholder such statement prepared by the Servicer setting
forth certain information relating to the Trust and the Series 2000-1
Certificates.
(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 2000-1 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 2001, the Trustee shall furnish or cause to be furnished to each
Person who at any time during the preceding calendar year was a Series 2000-1
Certificateholder, a statement prepared by the Servicer containing the
information which is required to be contained in the statement to Series
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2000-1 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 2000-1 Certificateholder, together with other information as is
required to be provided by an issuer of indebtedness under the Internal Revenue
Code for the preceding calendar year and such other customary information as is
necessary to enable the Series 2000-1 Certificateholders (or Certificate Owners)
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.
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 2000-1
Certificateholders, be deemed to be an Early Amortization Event solely with
respect to Series 2000-1 (each, an "Additional Early Amortization Event"):
(a) on any Distribution Date, the balance of the Reserve Fund
is less than three and one-half percent (3.5%) of the aggregate
outstanding principal balance of the Series 2000-1 Certificates, in
each case after giving effect to all deposits, withdrawals and
distributions on such Distribution Date; or
(b) any Servicer Default occurs; or
(c) a Class A Carry-over Amount, Class B Carry-over Amount or
Class C Carry-over Amount is outstanding on six consecutive
Distribution Dates (after giving effect to the distributions on each of
those Distribution Dates); or
(d) on any Determination Date, the average of the Monthly
Payment Rates for the three preceding Collection Periods is less than
twenty-five percent (25%) (or a lower percentage if the Rating Agency
Condition has been satisfied with respect to that lower percentage); or
(e) the outstanding principal amount of the Series 2000-1
Certificates is not fully repaid on the Expected Final Payment Date; or
(f) 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 in addition to 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 those Receivables (without deducting therefrom the
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<PAGE>
Discount Portion) for such three-month period, exceeds five percent
(5%) on an annualized basis; provided, that the percentage in this
clause (f) may be changed, or any Early Amortization Event relating to
this clause (f) may be waived, at the direction of the Seller and
without the consent of any Series 2000-1 Certificateholder upon the
satisfaction of the Rating Agency Condition; or
(g) the sum of all Eligible Investments and amounts on deposit
in the Excess Funding Account and any excess funding accounts for any
other Series represents more than fifty percent (50%) of the total
assets of the Trust on each of six or more consecutive Determination
Dates, after giving effect to all payments made or to be made on the
Distribution Date next succeeding each such respective Determination
Date; or
(h) the Overconcentration Amount exceeds zero for a period of
five Business Days after any Distribution Date, unless the Rating
Agency Condition shall have been satisfied with respect to the
existence of the Overconcentration Amount.
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 ten percent
(10%) of the initial principal amount of the Series 2000-1 Certificates on the
Closing Date or less, the Seller shall have the option, subject to the condition
set forth in paragraph (c), to purchase the entire, but not less than the
entire, Series 2000-1 Certificateholders' Interest, at a purchase price equal to
the Reassignment Amount for such Distribution Date.
(b) The Seller shall give the Servicer and the Trustee at least 10
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).
(c) If at the time the Seller exercises its purchase option hereunder
the Seller's unsecured debt is unrated or has a rating lower than the lowest
investment grade rating of any Rating Agency, the Seller shall deliver to the
Trustee on such Distribution Date an Opinion of Counsel (which must be an
independent outside counsel) to the effect that, in reliance on certain
certificates to the effect that the Series 2000-1 Certificateholders' Interest
purchased by the Seller constitutes fair value for the consideration paid
therefor and as to the Seller is solvent, the purchase of the Series 2000-1
Certificateholders' Interest would not be considered a fraudulent conveyance
under applicable law.
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So long as any Series 2000-1 Certificates are listed on the Luxembourg
Stock Exchange and the rules of such exchange so require, the Trustee shall
cause notice of any such optional repurchase under this Section to be published
in the Authorized European Newspaper at least one Business Day prior to the
related Distribution Date and shall cause notice to be given by first-class
mail, postage prepaid, mailed not less than ten Business Days prior to the
applicable repurchase date, to each Holder of Class A and Class B Certificates
at the Holder's address in the register maintained by the Trustee under the
Pooling and Servicing Agreement, and shall inform the Luxembourg Stock Exchange
thereof one Business Day prior thereto in accordance with instructions from the
Servicer (which may be standing instructions).
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. (a) The amount to be paid
by the Seller to the Collection Account with respect to Series 2000-1 in
connection with a purchase of the Certificateholders' Interest 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, deposit an amount equal to the Invested Amount on such
Distribution Date into the Principal Funding Account, (ii) second, deposit an
amount equal to the amount distributable on such Distribution Date pursuant to
Section 4.7(a)(i) into the Interest Funding Account and (iii) third, pay the
remainder of any Termination Proceeds to the Seller; provided, however, that the
sum of the amounts allocated pursuant to clauses (i) through (iii) shall not
exceed the Reassignment Amount for Series 2000-1.
(c) Notwithstanding anything to the contrary in this Series Supplement
or the Agreement, any Termination Proceeds deposited in the Principal Funding
Account and the Interest Funding Account pursuant to Section 8.1 of this Series
Supplement and all other amounts on deposit therein on the applicable
Distribution Date shall be distributed in full to the Series 2000-1
Certificateholders on such date in the following order of priority:
(i) first to Class A Certificateholders, in an amount equal to
the sum of (x) the Class A Monthly Interest for the current
Distribution Date and, without duplication, any unpaid Class A Monthly
Interest for any previous Distribution Date, (y) to the extent
permitted by applicable law, any Class A Additional Interest for the
current Distribution
33
<PAGE>
Date and, without duplication, any unpaid Class A Additional Interest
for any previous Distribution Date, and (z) the Class A Invested
Amount;
(ii) second to Class B Certificateholders, in an amount equal
to the sum of (x) the Class B Monthly Interest for the current
Distribution Date and, without duplication, any unpaid Class B Monthly
Interest for any previous Distribution Date, (y) to the extent
permitted by applicable law, any Class B Additional Interest for the
current Distribution Date and, without duplication, any unpaid Class B
Additional Interest for any previous Distribution Date, and (z) the
Class B Invested Amount; and
(iii) third to Class C Certificateholders, in an amount equal
to the sum of (x) the Class C Monthly Interest for the current
Distribution Date and, without duplication, any unpaid Class C Monthly
Interest for any previous Distribution Date, (y) to the extent
permitted by applicable law, any Class C Additional Interest for the
current Distribution Date and, without duplication, any unpaid Class C
Additional Interest for any previous Distribution Date and (z) the
Class C Invested Amount.
No Class A Carry-over Amount, Class B Carry-over Amount, Class C
Carry-over Amount, Class A Carry-over Amount Additional Interest, Class B
Carry-over Amount Additional Interest or Class C Carry-over Amount Additional
Interest will be paid as part of this distribution.
Any remaining funds shall be paid to the Seller.
Any distribution made pursuant to paragraph (b) above and this
paragraph (c) shall be deemed to be a final distribution pursuant to Section
12.2 of the Agreement with respect to Series 2000-1.
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 (after
giving effect to any deposits and distributions otherwise to be made on such
Distribution Date) (x) deduct an amount equal to the amount distributable on
such Distribution Date pursuant to Section 4.7(a)(ii) from the Series 2000-1
Allocation Percentage of the Insolvency Proceeds and deposit such amount in the
Principal Funding Account, (y) deduct an amount equal to the amount
distributable on such Distribution Date pursuant to Section 4.7(a)(i) from the
Series 2000-1 Allocation Percentage of the Insolvency Proceeds, and deposit such
amount in the Interest Funding Account, and (z) allocate the remainder of the
Series 2000-1 Allocation Percentage of the Insolvency Proceeds to the Seller's
Interest and release the same to the Seller on such Distribution Date.
(b) 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 to the
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<PAGE>
Series 2000-1 Certificateholders 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 2000-1.
ARTICLE IX
Miscellaneous Provisions
SECTION 9.1 Securities Law Filings. The Seller shall cause the Class A
and Class B Certificates to be registered under the Securities Exchange Act of
1934, as amended, to the extent required to do so under applicable law.
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 Limitation of Class C Certificates. Each purchaser of a
Class C Certificate (other than Deutsche FRLP) (each, the "Purchaser") hereby
represents and warrants to the Trustee and Deutsche FRLP, and hereby agrees with
the Trustee and Deutsche FRLP, and the Purchaser hereby acknowledges, as
follows:
(1) The Class C Certificates have not been and will not be
registered under the Securities Act or the securities laws of any
jurisdiction. Consequently, the Class C Certificates are not
transferable other than pursuant to an exemption from the registration
requirements of the Securities Act and satisfaction of certain
provisions of this Series Supplement.
(2) The Purchaser is a "qualified institutional buyer" ("QIB")
within the meaning of Rule 144A under the Securities Act ("Rule 144A")
and is purchasing for its own account (and not for the account of
others) or as a fiduciary or agent for others (which others also are
QIBs and have executed a letter substantially in the form of Exhibit C
to this Series Supplement and have delivered a copy of such letter to
Deutsche FRLP and the Trustee). The Purchaser is aware that it (or any
account for which it is
35
<PAGE>
purchasing) may be required to bear the economic risk of an investment
in the Class C Certificates for an indefinite period, and it (or such
account) is able to bear such risk for an indefinite period.
(3) No sale, pledge or other transfer of any Class C
Certificate may be made by any Person unless (a) either (i) such sale,
pledge or other transfer is made to Deutsche FRLP, or (ii) so long as
the Class C Certificates are eligible for resale pursuant to Rule 144A
under the Securities Act, such sale, pledge or other transfer is made
to a Person whom the transferor reasonably believes after due inquiry
is a QIB acting for its own account (and not for the account of others)
or as a fiduciary or agent for others (which others also are QIBs) to
whom notice is given that the sale, pledge or transfer is being made in
reliance on Rule 144A.
(4) The Class C Certificates may not be acquired by or for the
account of (i) an "employee benefit plan" (as defined in section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), that is subject to the provisions of Title I of ERISA, (ii)
a plan described in Section 4975(e)(1) of the Code or (iii) any entity
whose underlying assets include plan assets by reason of a plan's
investment in the entity. By accepting and holding a Class C
Certificate, the holder thereof shall be deemed to have represented and
warranted that it is not within any of the categories described in the
preceding sentence.
(5) The Purchaser acknowledges that it has been afforded an
opportunity to request from Deutsche FRLP, the Servicer and Deutsche
Bank Securities Inc. (the "Initial Purchaser"), and has received and
reviewed, all information which it has deemed necessary in connection
with its decision to purchase the Class C Certificates. The Purchaser
acknowledges that none of Deutsche FRLP, the Servicer, the Initial
Purchaser nor any of their respective affiliates or any Person
representing any of them has made any representation to it with respect
to any information relating to the offering or sale of the Class C
Certificates, other than the information contained in the private
placement memorandum for the Class C Certificates, a copy of which has
been delivered to it.
(6) The Purchaser understands that all information furnished
to it by Deutsche FRLP, the Servicer or the Initial Purchaser or
representatives of Deutsche FRLP, the Servicer or the Initial Purchaser
in connection with its evaluation of an investment in the Class C
Certificates was provided to it on a confidential basis and it agrees
not to disclose such information, in whole or in part, to any other
Person.
(7) The Purchaser further represents and warrants to Deutsche
FRLP and the Trustee that the Purchaser (i) is properly classified as a
"corporation" as described in Section 7701(a)(3) of the Code which is
created or organized under the laws of the United States, any State
thereof or the District of Columbia, (ii) is not an S corporation as
described in Section 1361 of the Code and (iii) will not knowingly take
any action which will cause it not to be so classified.
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<PAGE>
(8) The Purchaser confirms that is has neither acquired nor
will it sell, trade or transfer any interest in any Class C Certificate
or cause an interest in any Class C Certificate to be marketed on or
through (i) an "established securities market" within the meaning of
Section 7704(b)(1) of the Code and any proposed, temporary or final
treasury regulation thereunder, including, without limitation, an
over-the-counter market or an interdealer quotation system that
regularly disseminates firm buy or sell quotations or (ii) "secondary
market" or "substantial equivalent thereof" within the meaning of
Section 7704(b)(2) of the Code and any proposed, temporary or final
treasury regulation thereunder, including a market wherein interests in
the Class C Certificates are regularly quoted by any person making a
market in those interests and a market wherein any person regularly
makes available bid or offer quotes with respect to interests in the
Class C Certificates and stands ready to effect buy or sell
transactions at the quoted prices for itself or on behalf of others.
Any purported transfer, assignment or other conveyance of any Class C
Certificate in contravention of the foregoing covenant will be null and
void ab initio and the purported transferor will continue to be treated
as the holder of such Class C Certificate and the purported transferee
will not be recognized as a Class C Certificateholder by Deutsche FRLP,
the Servicer or the Trustee.
(9) Notwithstanding the foregoing, at no time shall the
aggregate number of Private Holders exceed 100. Any purported transfer,
assignment or other conveyance (including any participation) of the
Class C Certificates in contravention of the immediately preceding
sentence will be null and void ab initio and the purported transferor
will continue to be treated as the holder of those Class C Certificates
and the purported transferee will not be recognized as a Class C
Certificateholder by Deutsche FRLP, the Servicer or the Trustee.
"Private Holder" means each holder of a right to receive interest or
principal in respect of any direct or indirect interest in the Trust,
including any financial instrument or contract the value of which is
determined in whole or part by reference to the Trust (including the
Trust's assets, income of the Trust or distributions made by the
Trust), excluding any interest in the Trust represented by any series
or class of certificates or any other interests as to which the Trustee
has received an opinion of counsel to the effect that that series,
class or other interest will be treated as debt or otherwise not as an
equity interest in either the Trust or the Receivables for federal
income tax purposes (unless that interest is convertible or
exchangeable into an interest in the Trust or the Trust's income or
that interest provides for payment of equivalent value).
Notwithstanding the immediately preceding sentence, "Private Holder"
will also include any other person that Deutsche FRLP determines is a
"partner" within the meaning of Section 1.7704-1(h)(1)(ii) of the U.S.
Treasury Regulations (including by reason of Section 1.7704-1(h)(3)) or
any successor provision of law. Any person holding more than one
interest in the Trust, each of which separately would cause that person
to be a Private Holder, will be treated as a single Private Holder.
Each holder of an interest in a Private Holder which is a partnership,
S corporation or a grantor trust under the Code will be treated as a
Private Holder unless excepted with the consent of Deutsche FRLP (which
consent will be based on an opinion of counsel generally to the effect
that the action taken pursuant to the consent will not cause the Trust
to become a publicly traded
37
<PAGE>
partnership treated as a corporation). Notwithstanding anything to the
contrary herein, each Class C Certificateholder, and each holder of any
Class of any Series if with respect to such Class no opinion is
delivered to the effect that the Certificates of such Class will be
treated as debt for federal income tax purposes, will be considered to
be a Private Holder.
(10) The Class C Certificates will be issued in denominations
of $1,000,000 and integral multiples of $100,000 in excess thereof. No
Class C Certificate may be subdivided upon transfer or exchange in a
manner so that the resulting Class C Certificate if it had been sold in
the original offering would have had an initial offering price of less
than $1,000,000 and any purported transfer, assignment or conveyance of
a Class C Certificate in contravention of the immediately preceding
sentence will be void ab initio and the purported transferor will
continue to be treated as the owner of that Class C Certificate for all
purposes.
(11) Without limiting the foregoing, no transfer, pledge,
assignment or conveyance may be made to any one Person for Class C
Certificates with a face amount of less than $1,000,000 and, in the
case of any Person acting on behalf of one or more third parties (other
than a bank (as defined in Section 3(a)(2) of the Securities Act)
acting in its fiduciary capacity), for Class C Certificates with a face
amount of less than that amount for each of those third parties. Any
purported transfer, assignment or conveyance in contravention of the
immediately preceding sentence will be void ab initio and the purported
transferor will continue to be treated as the owner of the Class C
Certificates for all purposes. Neither Deutsche FRLP nor the Trustee
will be obligated to register the Class C Certificates under the
Securities Act, qualify the Class C Certificates under the securities
laws of any state or provide registration rights to any purchaser or
holder thereof.
(12) No transfer, assignment or conveyance of a Class C
Certificate will be effective unless Deutsche FRLP and the Trustee
shall have received a letter, substantially in the form of Exhibit C to
this Series Supplement, from the transferee, assignee or recipient of
the conveyance.
(13) The Class C Certificates will bear legends substantially
to the effect of the matters contemplated by paragraphs (1) through
(12) above, unless Deutsche FRLP determines otherwise in accordance
with applicable law.
SECTION 9.6 The Trustee; Paying Agent. (a) The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Series Supplement, for or in respect of the calculation or
verification of any of the amounts, allocation or distributions set forth in
Article IV and Article VIII or for or in respect of the recitals contained
herein, all of which recitals are made solely by the Seller.
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<PAGE>
(b) The Trustee is hereby directed to appoint Kredietbank S.A.
Luxembourgeoise in Luxembourg as a Paying Agent for the distribution of
principal of and interest on the Series 2000-1 Certificates; provided, that
unless Kredietbank S.A. Luxembourgeoise shall be rated "P-1" by Moody's and
"A-1" by S&P, it may not hold funds pursuant to this Series Supplement
overnight.
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.
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 three and
one-half percent (3.5%) of the aggregate initial principal balance of the Series
2000-1 Certificates.
SECTION 9.9 Severability; Certificate Rate Limitation. (a) If any one
or more of the covenants, agreements, provisions or terms of this Series
Supplement or any Series 2000-1 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 2000-1 Certificate.
(b) Notwithstanding anything in this Series Supplement, the Agreement,
or any Series 2000-1 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 any Series 2000-1 Certificate 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 2000-1
Certificateholders in accordance with the terms of this Series Supplement, the
Agreement or any Series 2000-1 Certificate, then such Certificate Rate, together
with all Charges payable in respect of the Series 2000-1 Certificate, 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 2000-1
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
2000-1 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 2000-1 Certificateholders.
SECTION 9.10 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 9.11 Certain Matters Relating to Luxembourg Stock Exchange
Listing. (a) So long as any Series 2000-1 Certificates are listed on the
Luxembourg Stock Exchange, on each Distribution Date the Trustee shall notify
the Luxembourg Stock Exchange of the outstanding
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<PAGE>
principal balance of each Class of such Series 2000-1 Certificates after giving
effect to distributions of principal, if any, thereon on such Distribution Date
in accordance with instructions from the Servicer (which may be standing
instructions).
(b) Promptly upon receipt of notice of any qualification, reduction or
withdrawal of the rating assigned to any Class of Certificates listed on the
Luxembourg Stock Exchange, the Trustee shall notify the Luxembourg Stock
Exchange thereof in accordance with instructions from the Servicer (which may be
standing instructions).
(c) Prior to listing on the Luxembourg Stock Exchange, a legal notice
("Notice Legale") relating to the issuance of the Certificates, together with
certain documents relating to the Seller and the Trust, shall be deposited by
the Trustee (at the written direction of the Seller or the Servicer) with the
Chief Registrar of the District of Luxembourg ("Greffier en Chef du Tribunal
d'Arrondissement de et a Luxembourg"), where copies thereof may be obtained,
free of charge, upon request.
As long as the Class A or Class B Certificates are outstanding, the
Servicer shall cause copies of the Pooling and Servicing Agreement and this
Agreement to be available for inspection and the Servicer's statement prepared
for each Distribution Date to be obtainable at the office of Kredietbank S.A.
Luxembourgeoise in the City of Luxembourg, where copies thereof may be obtained
upon request.
[SIGNATURES FOLLOW]
40
<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 CLASS [ ] CERTIFICATE
Initial
REGISTERED Principal Balance: */
$____________________
Certificate No. R-
CUSIP NO.
[Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
[FOR CLASS B CERTIFICATES, INSERT:
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (I) AN "EMPLOYEE
BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA")), THAT IS SUBJECT TO THE PROVISIONS
OF TITLE I OF ERISA, (II) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE OR
(III) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A
PLAN'S INVESTMENT IN THE ENTITY. BY ACCEPTING AND HOLDING THIS CERTIFICATE, THE
HOLDER THEREOF SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT
WITHIN ANY OF THE CATEGORIES DESCRIBED IN THE PRECEDING SENTENCE.
[FOR CLASS C CERTIFICATES INSERT:
THE PURCHASER OF THIS CERTIFICATE (THE "PURCHASER") HEREBY REPRESENTS AND
WARRANTS TO THE TRUSTEE AND DEUTSCHE FRLP, AND HEREBY AGREES WITH THE TRUSTEE
AND DEUTSCHE FRLP, AND THE PURCHASER HEREBY ACKNOWLEDGES, AS FOLLOWS:
(1) THE CLASS C CERTIFICATES HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OR THE SECURITIES LAWS OF ANY
JURISDICTION. CONSEQUENTLY, THE CLASS C CERTIFICATES ARE NOT
TRANSFERABLE OTHER THAN PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND SATISFACTION OF CERTAIN
PROVISIONS OF THE SERIES SUPPLEMENT.
- --------
*/ Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
<PAGE>
(2) THE PURCHASER IS A "QUALIFIED INSTITUTIONAL BUYER" ("QIB")
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")
AND IS PURCHASING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF
OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE
QIBS AND HAVE EXECUTED A LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C
TO THE SERIES SUPPLEMENT AND HAVE DELIVERED A COPY OF SUCH LETTER TO
DEUTSCHE FRLP AND THE TRUSTEE). THE PURCHASER IS AWARE THAT IT (OR ANY
ACCOUNT FOR WHICH IT IS PURCHASING) MAY BE REQUIRED TO BEAR THE
ECONOMIC RISK OF AN INVESTMENT IN THE CLASS C CERTIFICATES FOR AN
INDEFINITE PERIOD, AND IT (OR SUCH ACCOUNT) IS ABLE TO BEAR SUCH RISK
FOR AN INDEFINITE PERIOD.
(3) NO SALE, PLEDGE OR OTHER TRANSFER OF ANY CLASS C
CERTIFICATE MAY BE MADE BY ANY PERSON UNLESS (A) EITHER (I) SUCH SALE,
PLEDGE OR OTHER TRANSFER IS MADE TO DEUTSCHE FRLP, OR (II) SO LONG AS
THE CLASS C CERTIFICATES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT, SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE
TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY
IS A QIB ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS)
OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBS) TO
WHOM NOTICE IS GIVEN THAT THE SALE, PLEDGE OR TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A.
(4) THE CLASS C CERTIFICATES MAY NOT BE ACQUIRED BY OR FOR THE
ACCOUNT OF (I) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3)
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA")), THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (II)
A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE OR (III) ANY ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S
INVESTMENT IN THE ENTITY. BY ACCEPTING AND HOLDING A CLASS C
CERTIFICATE, THE HOLDER THEREOF SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT IT IS NOT WITHIN ANY OF THE CATEGORIES DESCRIBED IN THE
PRECEDING SENTENCE.
(5) THE PURCHASER ACKNOWLEDGES THAT IT HAS BEEN AFFORDED AN
OPPORTUNITY TO REQUEST FROM DEUTSCHE FRLP, THE SERVICER AND DEUTSCHE
BANK SECURITIES INC. (THE "INITIAL PURCHASER"), AND HAS RECEIVED AND
REVIEWED, ALL INFORMATION WHICH IT HAS DEEMED NECESSARY IN CONNECTION
WITH ITS DECISION TO PURCHASE THE CLASS C CERTIFICATES. THE PURCHASER
ACKNOWLEDGES THAT NONE OF DEUTSCHE FRLP, THE SERVICER, THE INITIAL
PURCHASER NOR ANY OF THEIR RESPECTIVE AFFILIATES OR ANY PERSON
REPRESENTING ANY OF THEM HAS
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<PAGE>
MADE ANY REPRESENTATION TO IT WITH RESPECT TO ANY INFORMATION RELATING
TO THE OFFERING OR SALE OF THE CLASS C CERTIFICATES, OTHER THAN THE
INFORMATION CONTAINED IN THE PRIVATE PLACEMENT MEMORANDUM FOR THE CLASS
C CERTIFICATES, A COPY OF WHICH HAS BEEN DELIVERED TO IT.
(6) THE PURCHASER UNDERSTANDS THAT ALL INFORMATION FURNISHED
TO IT BY DEUTSCHE FRLP, THE SERVICER OR THE INITIAL PURCHASER OR
REPRESENTATIVES OF DEUTSCHE FRLP, THE SERVICER OR THE INITIAL PURCHASER
IN CONNECTION WITH ITS EVALUATION OF AN INVESTMENT IN THE CLASS C
CERTIFICATES WAS PROVIDED TO IT ON A CONFIDENTIAL BASIS AND IT AGREES
NOT TO DISCLOSE SUCH INFORMATION, IN WHOLE OR IN PART, TO ANY OTHER
PERSON.
(7) THE PURCHASER FURTHER REPRESENTS AND WARRANTS TO DEUTSCHE
FRLP AND THE TRUSTEE THAT THE PURCHASER (I) IS PROPERLY CLASSIFIED AS A
"CORPORATION" AS DESCRIBED IN SECTION 7701(a)(3) OF THE CODE WHICH IS
CREATED OR ORGANIZED UNDER THE LAWS OF THE UNITED STATES, ANY STATE
THEREOF OR THE DISTRICT OF COLUMBIA, (II) IS NOT AN S CORPORATION AS
DESCRIBED IN SECTION 1361 OF THE CODE AND (III) WILL NOT KNOWINGLY TAKE
ANY ACTION WHICH WILL CAUSE IT NOT TO BE SO CLASSIFIED.
(8) THE PURCHASER CONFIRMS THAT IS HAS NEITHER ACQUIRED NOR
WILL IT SELL, TRADE OR TRANSFER ANY INTEREST IN ANY CLASS C CERTIFICATE
OR CAUSE AN INTEREST IN ANY CLASS C CERTIFICATE TO BE MARKETED ON OR
THROUGH (I) AN "ESTABLISHED SECURITIES MARKET" WITHIN THE MEANING OF
SECTION 7704(b)(1) OF THE CODE AND ANY PROPOSED, TEMPORARY OR FINAL
TREASURY REGULATION THEREUNDER, INCLUDING, WITHOUT LIMITATION, AN
OVER-THE-COUNTER MARKET OR AN INTERDEALER QUOTATION SYSTEM THAT
REGULARLY DISSEMINATES FIRM BUY OR SELL QUOTATIONS OR (II) "SECONDARY
MARKET" OR "SUBSTANTIAL EQUIVALENT THEREOF" WITHIN THE MEANING OF
SECTION 7704(b)(2) OF THE CODE AND ANY PROPOSED, TEMPORARY OR FINAL
TREASURY REGULATION THEREUNDER, INCLUDING A MARKET WHEREIN INTERESTS IN
THE CLASS C CERTIFICATES ARE REGULARLY QUOTED BY ANY PERSON MAKING A
MARKET IN THOSE INTERESTS AND A MARKET WHEREIN ANY PERSON REGULARLY
MAKES AVAILABLE BID OR OFFER QUOTES WITH RESPECT TO INTERESTS IN THE
CLASS C CERTIFICATES AND STANDS READY TO EFFECT BUY OR SELL
TRANSACTIONS AT THE QUOTED PRICES FOR ITSELF OR ON BEHALF OF OTHERS.
ANY PURPORTED TRANSFER, ASSIGNMENT OR OTHER CONVEYANCE OF ANY CLASS C
CERTIFICATE IN CONTRAVENTION OF THE FOREGOING COVENANT WILL BE NULL AND
VOID AB INITIO AND THE PURPORTED TRANSFEROR WILL CONTINUE TO BE TREATED
AS THE HOLDER
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<PAGE>
OF SUCH CLASS C CERTIFICATE AND THE PURPORTED TRANSFEREE WILL NOT BE
RECOGNIZED AS A CLASS C CERTIFICATEHOLDER BY DEUTSCHE FRLP, THE
SERVICER OR THE TRUSTEE.
(9) NOTWITHSTANDING THE FOREGOING, AT NO TIME SHALL THE
AGGREGATE NUMBER OF PRIVATE HOLDERS EXCEED 100. ANY PURPORTED TRANSFER,
ASSIGNMENT OR OTHER CONVEYANCE (INCLUDING ANY PARTICIPATION) OF THE
CLASS C CERTIFICATES IN CONTRAVENTION OF THE IMMEDIATELY PRECEDING
SENTENCE WILL BE NULL AND VOID AB INITIO AND THE PURPORTED TRANSFEROR
WILL CONTINUE TO BE TREATED AS THE HOLDER OF THOSE CLASS C CERTIFICATES
AND THE PURPORTED TRANSFEREE WILL NOT BE RECOGNIZED AS A CLASS C
CERTIFICATEHOLDER BY DEUTSCHE FRLP, THE SERVICER OR THE TRUSTEE.
"PRIVATE HOLDER" MEANS EACH HOLDER OF A RIGHT TO RECEIVE INTEREST OR
PRINCIPAL IN RESPECT OF ANY DIRECT OR INDIRECT INTEREST IN THE TRUST,
INCLUDING ANY FINANCIAL INSTRUMENT OR CONTRACT THE VALUE OF WHICH IS
DETERMINED IN WHOLE OR PART BY REFERENCE TO THE TRUST (INCLUDING THE
TRUST'S ASSETS, INCOME OF THE TRUST OR DISTRIBUTIONS MADE BY THE
TRUST), EXCLUDING ANY INTEREST IN THE TRUST REPRESENTED BY ANY SERIES
OR CLASS OF CERTIFICATES OR ANY OTHER INTERESTS AS TO WHICH THE TRUSTEE
HAS RECEIVED AN OPINION OF COUNSEL TO THE EFFECT THAT THAT SERIES,
CLASS OR OTHER INTEREST WILL BE TREATED AS DEBT OR OTHERWISE NOT AS AN
EQUITY INTEREST IN EITHER THE TRUST OR THE RECEIVABLES FOR FEDERAL
INCOME TAX PURPOSES (UNLESS THAT INTEREST IS CONVERTIBLE OR
EXCHANGEABLE INTO AN INTEREST IN THE TRUST OR THE TRUST'S INCOME OR
THAT INTEREST PROVIDES FOR PAYMENT OF EQUIVALENT VALUE).
NOTWITHSTANDING THE IMMEDIATELY PRECEDING SENTENCE, "PRIVATE HOLDER"
WILL ALSO INCLUDE ANY OTHER PERSON THAT DEUTSCHE FRLP DETERMINES IS A
"PARTNER" WITHIN THE MEANING OF SECTION 1.7704-1(h)(1)(ii) OF THE U.S.
TREASURY REGULATIONS (INCLUDING BY REASON OF SECTION 1.7704-1(h)(3)) OR
ANY SUCCESSOR PROVISION OF LAW. ANY PERSON HOLDING MORE THAN ONE
INTEREST IN THE TRUST, EACH OF WHICH SEPARATELY WOULD CAUSE THAT PERSON
TO BE A PRIVATE HOLDER, WILL BE TREATED AS A SINGLE PRIVATE HOLDER.
EACH HOLDER OF AN INTEREST IN A PRIVATE HOLDER WHICH IS A PARTNERSHIP,
S CORPORATION OR A GRANTOR TRUST UNDER THE CODE WILL BE TREATED AS A
PRIVATE HOLDER UNLESS EXCEPTED WITH THE CONSENT OF DEUTSCHE FRLP (WHICH
CONSENT WILL BE BASED ON AN OPINION OF COUNSEL GENERALLY TO THE EFFECT
THAT THE ACTION TAKEN PURSUANT TO THE CONSENT WILL NOT CAUSE THE TRUST
TO BECOME A PUBLICLY TRADED PARTNERSHIP TREATED AS A CORPORATION).
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, EACH CLASS C
CERTIFICATEHOLDER, AND EACH HOLDER OF ANY CLASS OF ANY SERIES IF WITH
RESPECT TO SUCH CLASS NO OPINION IS DELIVERED TO THE EFFECT
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<PAGE>
THAT THE CERTIFICATES OF SUCH CLASS WILL BE TREATED AS DEBT FOR FEDERAL
INCOME TAX PURPOSES, WILL BE CONSIDERED TO BE A PRIVATE HOLDER.
(10) THE CLASS C CERTIFICATES WILL BE ISSUED IN DENOMINATIONS
OF $1,000,000 AND INTEGRAL MULTIPLES OF $100,000 IN EXCESS THEREOF. NO
CLASS C CERTIFICATE MAY BE SUBDIVIDED UPON TRANSFER OR EXCHANGE IN A
MANNER SO THAT THE RESULTING CLASS C CERTIFICATE IF IT HAD BEEN SOLD IN
THE ORIGINAL OFFERING WOULD HAVE HAD AN INITIAL OFFERING PRICE OF LESS
THAN $1,000,000 AND ANY PURPORTED TRANSFER, ASSIGNMENT OR CONVEYANCE OF
A CLASS C CERTIFICATE IN CONTRAVENTION OF THE IMMEDIATELY PRECEDING
SENTENCE WILL BE VOID AB INITIO AND THE PURPORTED TRANSFEROR WILL
CONTINUE TO BE TREATED AS THE OWNER OF THAT CLASS C CERTIFICATE FOR ALL
PURPOSES.
(11) WITHOUT LIMITING THE FOREGOING, NO TRANSFER, PLEDGE,
ASSIGNMENT OR CONVEYANCE MAY BE MADE TO ANY ONE PERSON FOR CLASS C
CERTIFICATES WITH A FACE AMOUNT OF LESS THAN $1,000,000 AND, IN THE
CASE OF ANY PERSON ACTING ON BEHALF OF ONE OR MORE THIRD PARTIES (OTHER
THAN A BANK (AS DEFINED IN SECTION 3(a)(2) OF THE SECURITIES ACT)
ACTING IN ITS FIDUCIARY CAPACITY), FOR CLASS C CERTIFICATES WITH A FACE
AMOUNT OF LESS THAN THAT AMOUNT FOR EACH OF THOSE THIRD PARTIES. ANY
PURPORTED TRANSFER, ASSIGNMENT OR CONVEYANCE IN CONTRAVENTION OF THE
IMMEDIATELY PRECEDING SENTENCE WILL BE VOID AB INITIO AND THE PURPORTED
TRANSFEROR WILL CONTINUE TO BE TREATED AS THE OWNER OF THE CLASS C
CERTIFICATES FOR ALL PURPOSES. NEITHER DEUTSCHE FRLP NOR THE TRUSTEE
WILL BE OBLIGATED TO REGISTER THE CLASS C CERTIFICATES UNDER THE
SECURITIES ACT, QUALIFY THE CLASS C CERTIFICATES UNDER THE SECURITIES
LAWS OF ANY STATE OR PROVIDE REGISTRATION RIGHTS TO ANY PURCHASER OR
HOLDER THEREOF.
(12) NO TRANSFER, ASSIGNMENT OR CONVEYANCE OF A CLASS C
CERTIFICATE WILL BE EFFECTIVE UNLESS DEUTSCHE FRLP AND THE TRUSTEE
SHALL HAVE RECEIVED A LETTER, SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO
THE SERIES SUPPLEMENT, FROM THE TRANSFEREE, ASSIGNEE OR RECIPIENT OF
THE CONVEYANCE.]
5
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$___________ FLOATING RATE ASSET BACKED CERTIFICATES,
SERIES 2000-1, CLASS [ ]
evidencing a fractional undivided interest in certain
assets of the
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST.
This certificate ("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 "Class [ ] 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 an Amended and Restated Pooling and Servicing Agreement (the "P&S"),
dated as of April 1, 2000, as supplemented by the Series 2000-1 Supplement dated
as of April 1, 2000 (the "Series 2000-1 Supplement" or the "Series Supplement"),
among Deutsche FRLP, as Seller, DFS, as Servicer, and The Chase Manhattan Bank,
as trustee (the "Trustee"). The P&S and the Series 2000-1 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 Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
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.
This 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 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 herein, this
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 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.
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The Seller has entered into the Pooling and Servicing Agreement and the
Series 2000-1 Certificates have been (or shall be) issued with the intention
that the Series 2000-1 Certificates shall qualify as indebtedness of Deutsche
FRLP 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. The Seller, each
Beneficiary and each Certificateholder and Certificate Owner, by the acceptance
of its Certificate or Book-Entry Certificate, as applicable, agrees to treat
such Series 2000-1 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.
[FOR CLASS B AND CLASS C CERTIFICATES, INSERT: THIS CERTIFICATE IS
SUBORDINATE TO THE CLASS A [AND CLASS B] CERTIFICATES IN ACCORDANCE
WITH THE SERIES SUPPLEMENT].
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<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:
S-1
<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:
S-2
<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 within Certificate in every particular,
without alteration, enlargement or any change whatsoever.
S-3
<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, and the Pool
Balance as of the end of such Collection Period;
(b) The Floating Allocation Percentage, the Principal Allocation Percentage
and the Series 2000-1 Allocation Percentage relating to such Collection Period;
(c) The total amount, if any, distributed on the Series 2000-1
Certificates;
(d) The amount of such distribution allocable to principal on the Class A
Certificates, the Class B Certificates and the Class C Certificates;
(e) The amount of such distribution allocable to interest on the Class A
Certificates, the Class B Certificates and the Class C Certificates;
(f) The Investor Default Amount for the applicable Distribution Date;
(g) The Deficiency Amount, if any, for the preceding Collection Period;
(h) The amount of the Class A, Class B and Class C Investor Charge-Offs and
the amounts of reimbursements thereof for the preceding Collection Period;
(i) The amount of the Monthly Servicing Fee for the preceding Collection
Period;
(j) The Class A Invested Amount, the Class B Invested Amount, the Class C
Invested Amount, the Excess Funding Account balance and the outstanding
principal balance of the Class A, Class B and Class C Certificates for such
Distribution Date (after giving effect to all distributions which shall occur on
such Distribution Date);
(k) The Controlled Deposit Amount, if any;
(l) The Class A Pool Factor, Class B Pool Factor and Class C Pool Factor;
(m) LIBOR and the applicable Net Receivables Rate for the next Interest
Period;
(n) The Reserve Fund balance with respect to the current Determination
Date;
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(o) The Principal Funding Account balance, the Interest Funding Account
balance, he Yield Supplement Account balance and the Collection Account balance
with respect to the current Distribution Date;
(p) The Servicer Advance, if any, for the current Distribution Date and
reimbursement of any Servicer Advance;
(q) Any elective or "deemed" waiver of the Monthly Servicing Fee for the
current Distribution Date;
(r) If a Dealer Overconcentration exists, (i) the Unconcentrated Pool
Balance, (ii) the aggregate amount of such Dealer Overconcentration, (iii) the
applicable Unconcentrated Percentage and Overconcentrated Percentage, and (iv)
the portion of Collections, Miscellaneous Payments and the Defaulted Amount
allocated to the Dealer Overconcentration Series and other Series;
(s) the Class A Monthly Interest;
(t) the Class B Monthly Interest;
(u) the Class C Monthly Interest;
(v) the Class A Additional Interest;
(w) the Class B Additional Interest;
(x) the Class C Additional Interest;
(y) the Certificateholders' Monthly Servicing Fee;
(z) the Reserve Fund Deposit Amount;
(aa) the Investor Default Amount;
(bb) the Class A Carry-over Amount;
(cc) the Class B Carry-over Amount;
(dd) the Class C Carry-over Amount;
(ee) the Yield Supplement Account Deposit Amount;
(ff) the amount calculated pursuant to Section 4.6(b);
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(gg) the amount calculated pursuant to Section 4.7(a)(i);
(hh) the amount calculated pursuant to Section 4.8;
(ii) the amount calculated pursuant to Section 4.10; and
(jj) Miscellaneous Payments, including Adjustment Payments, Transfer
Deposit Amounts and Unallocated Principal Collections.
3
<PAGE>
EXHIBIT C
FORM OF REPRESENTATION LETTER
, 2000
--------------------
The Chase Manhattan Bank, as Trustee
450 West 33rd St., 14th Floor
New York, NY 10001
Deutsche Floorplan Receivables, L.P.
655 Maryville Centre Drive
St. Louis, MO 63141
Re: Distribution Financial Services
Floorplan Master Trust, Series 2000-1, Class C Certificates
Ladies and Gentlemen:
This letter is being delivered by the undersigned (the "Purchaser")
pursuant to Section 9.5 of the Series 2000-1 Supplement dated as of April 1,
2000 (as amended, amended and restated or otherwise modified from time to time,
the "Supplement") among Deutsche Floorplan Receivables, L.P., as Seller
("Deutsche FRLP"), Deutsche Financial Services Corporation, as Servicer, and The
Chase Manhattan Bank, as Trustee, in connection with the Purchaser's acquisition
of a Class C Certificate. Capitalized terms defined in (or by reference in) the
Supplement and used herein without definition shall have the meanings defined in
(or by reference in) the Supplement. The Purchaser hereby represents and
warrants to the Trustee and Deutsche FRLP, and hereby agrees with the Trustee
and Deutsche FRLP, and the Purchaser hereby acknowledges, as follows:
(1) The Class C Certificates have not been and will not be
registered under the Securities Act or the securities laws of any
jurisdiction. Consequently, the Class C Certificates are not
transferable other than pursuant to an exemption from the registration
requirements of the Securities Act and satisfaction of certain
provisions of the Supplement.
(2) The Purchaser is a "qualified institutional buyer" ("QIB")
within the meaning of Rule 144A under the Securities Act ("Rule 144A")
and is purchasing for its own account (and not for the account of
others) or as a fiduciary or agent for others
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(which others also are QIBs and have executed a letter substantially in
the form of this letter and have delivered a copy of such letter to
Deutsche FRLP and the Trustee). The Purchaser is aware that it (or any
account for which it is purchasing) may be required to bear the
economic risk of an investment in the Class C Certificates for an
indefinite period, and it (or such account) is able to bear such risk
for an indefinite period.
(3) No sale, pledge or other transfer of any Class C
Certificate may be made by any Person unless (a) either (i) such sale,
pledge or other transfer is made to Deutsche FRLP, or (ii) so long as
the Class C Certificates are eligible for resale pursuant to Rule 144A
under the Securities Act, such sale, pledge or other transfer is made
to a Person whom the transferor reasonably believes after due inquiry
is a QIB acting for its own account (and not for the account of others)
or as a fiduciary or agent for others (which others also are QIBs) to
whom notice is given that the sale, pledge or transfer is being made in
reliance on Rule 144A.
(4) The Class C Certificates may not be acquired by or for the
account of (i) an "employee benefit plan" (as defined in section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), that is subject to the provisions of Title I of ERISA, (ii)
a plan described in Section 4975(e)(1) of the Code or (iii) any entity
whose underlying assets include plan assets by reason of a plan's
investment in the entity. By accepting and holding a Class C
Certificate, the holder thereof shall be deemed to have represented and
warranted that it is not within any of the categories described in the
preceding sentence.
(5) The Purchaser acknowledges that it has been afforded an
opportunity to request from Deutsche FRLP, the Servicer and Deutsche
Bank Securities Inc. (the "Initial Purchaser"), and has received and
reviewed, all information which it has deemed necessary in connection
with its decision to purchase the Class C Certificates. The Purchaser
acknowledges that none of Deutsche FRLP, the Servicer, the Initial
Purchaser nor any of their respective affiliates or any Person
representing any of them has made any representation to it with respect
to any information relating to the offering or sale of the Class C
Certificates, other than the information contained in the private
placement memorandum for the Class C Certificates, a copy of which has
been delivered to it.
(6) The Purchaser understands that all information furnished
to it by Deutsche FRLP, the Servicer or the Initial Purchaser or
representatives of Deutsche FRLP, the Servicer or the Initial Purchaser
in connection with its evaluation of an investment in the Class C
Certificates was provided to it on a confidential basis and it agrees
not to disclose such information, in whole or in part, to any other
Person.
(7) The Purchaser further represents and warrants to Deutsche
FRLP and the Trustee that the Purchaser (i) is properly classified as a
"corporation" as described in
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Section 7701(a)(3) of the Code which is created or organized under the
laws of the United States, any State thereof or the District of
Columbia, (ii) is not an S corporation as described in Section 1361 of
the Code and (iii) will not knowingly take any action which will cause
it not to be so classified.
(8) The Purchaser confirms that is has neither acquired nor
will it sell, trade or transfer any interest in any Class C Certificate
or cause an interest in any Class C Certificate to be marketed on or
through (i) an "established securities market" within the meaning of
Section 7704(b)(1) of the Code and any proposed, temporary or final
treasury regulation thereunder, including, without limitation, an
over-the-counter market or an interdealer quotation system that
regularly disseminates firm buy or sell quotations or (ii) "secondary
market" or "substantial equivalent thereof" within the meaning of
Section 7704(b)(2) of the Code and any proposed, temporary or final
treasury regulation thereunder, including a market wherein interests in
the Class C Certificates are regularly quoted by any person making a
market in those interests and a market wherein any person regularly
makes available bid or offer quotes with respect to interests in the
Class C Certificates and stands ready to effect buy or sell
transactions at the quoted prices for itself or on behalf of others.
Any purported transfer, assignment or other conveyance of any Class C
Certificate in contravention of the foregoing covenant will be null and
void ab initio and the purported transferor will continue to be treated
as the holder of such Class C Certificate and the purported transferee
will not be recognized as a Class C Certificateholder by Deutsche FRLP,
the Servicer or the Trustee.
(9) Notwithstanding the foregoing, at no time shall the
aggregate number of Private Holders exceed 100. Any purported transfer,
assignment or other conveyance (including any participation) of the
Class C Certificates in contravention of the immediately preceding
sentence will be null and void ab initio and the purported transferor
will continue to be treated as the holder of those Class C Certificates
and the purported transferee will not be recognized as a Class C
Certificateholder by Deutsche FRLP, the Servicer or the Trustee.
"Private Holder" means each holder of a right to receive interest or
principal in respect of any direct or indirect interest in the Trust,
including any financial instrument or contract the value of which is
determined in whole or part by reference to the Trust (including the
Trust's assets, income of the Trust or distributions made by the
Trust), excluding any interest in the Trust represented by any series
or class of certificates or any other interests as to which the Trustee
has received an opinion of counsel to the effect that that series,
class or other interest will be treated as debt or otherwise not as an
equity interest in either the Trust or the Receivables for federal
income tax purposes (unless that interest is convertible or
exchangeable into an interest in the Trust or the Trust's income or
that interest provides for payment of equivalent value).
Notwithstanding the immediately preceding sentence, "Private Holder"
will also include any other person that Deutsche FRLP determines is a
"partner" within the meaning of Section 1.7704-1(h)(1)(ii) of the U.S.
Treasury Regulations (including by reason of Section 1.7704-1(h)(3)) or
any successor
3
<PAGE>
provision of law. Any person holding more than one interest in the
Trust, each of which separately would cause that person to be a Private
Holder, will be treated as a single Private Holder. Each holder of an
interest in a Private Holder which is a partnership, S corporation or a
grantor trust under the Code will be treated as a Private Holder unless
excepted with the consent of Deutsche FRLP (which consent will be based
on an opinion of counsel generally to the effect that the action taken
pursuant to the consent will not cause the Trust to become a publicly
traded partnership treated as a corporation). Notwithstanding anything
to the contrary herein, each Class C Certificateholder, and each holder
of any Class of any Series if with respect to such Class no opinion is
delivered to the effect that the Certificates of such Class will be
treated as debt for federal income tax purposes, will be considered to
be a Private Holder.
(10) The Class C Certificates will be issued in denominations
of $1,000,000 and integral multiples of $100,000 in excess thereof. No
Class C Certificate may be subdivided upon transfer or exchange in a
manner so that the resulting Class C Certificate if it had been sold in
the original offering would have had an initial offering price of less
than $1,000,000 and any purported transfer, assignment or conveyance of
a Class C Certificate in contravention of the immediately preceding
sentence will be void ab initio and the purported transferor will
continue to be treated as the owner of that Class C Certificate for all
purposes.
(11) Without limiting the foregoing, no transfer, pledge,
assignment or conveyance may be made to any one Person for Class C
Certificates with a face amount of less than $1,000,000 and, in the
case of any Person acting on behalf of one or more third parties (other
than a bank (as defined in Section 3(a)(2) of the Securities Act)
acting in its fiduciary capacity), for Class C Certificates with a face
amount of less than that amount for each of those third parties. Any
purported transfer, assignment or conveyance in contravention of the
immediately preceding sentence will be void ab initio and the purported
transferor will continue to be treated as the owner of the Class C
Certificates for all purposes. Neither Deutsche FRLP nor the Trustee
will be obligated to register the Class C Certificates under the
Securities Act, qualify the Class C Certificates under the securities
laws of any state or provide registration rights to any purchaser or
holder thereof.
(12) No transfer, assignment or conveyance of a Class C
Certificate will be effective unless Deutsche FRLP and the Trustee
shall have received a letter, substantially in the form of this letter,
from the transferee, assignee or recipient of the conveyance.
(13) The Class C Certificates will bear legends substantially
to the effect of the matters contemplated by paragraphs (1) through
(12) above, unless Deutsche FRLP determines otherwise in accordance
with applicable law.
4
<PAGE>
(14) This letter has been duly executed and delivered by the
Purchaser and constitutes the legal, valid and binding obligation of
the Purchaser, enforceable against the Purchaser in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable
principles affecting the enforcement of creditors' rights generally and
general principles of equity.
IN WITNESS WHEREOF, the Purchaser has signed this letter as of the date
first above written.
[NAME OF PURCHASER]
By:____________________________________
Name:
Title:
<PAGE>
SCHEDULE 1
Name of Series
2000-1 Account Account No.
- -------------- -----------
Interest Funding Account 507-942-841
Principal Funding Account 507-942-868
Excess Funding Account 507-942-876
Reserve Fund 507-942-833
Yield Supplement Account 507-942-884
All of the foregoing accounts are maintained at the Trustee.
<PAGE>
SCHEDULE 2
Initial Principal Amounts of the Series 2000-1 Certificates
-----------------------------------------------------------
Class Initial Principal Amount
- ----- ------------------------
Class A $1,193,750,000
Class B $37,500,000
Class C $18,750,000
<PAGE>
EXHIBIT 4.3
===============================================================================
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
Seller
DEUTSCHE FINANCIAL SERVICES CORPORATION
Servicer
and
THE CHASE MANHATTAN BANK
Trustee
--------------------
SERIES 2000-2 SUPPLEMENT
Dated as of April 1, 2000
to
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2000
--------------------
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
SERIES 2000-2
===============================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
Creation of the Series 2000-2 Certificates
SECTION 1.1 Designation.....................................................1
ARTICLE II
Definitions
SECTION 2.1 Definitions.....................................................1
ARTICLE III
Servicing Fee
SECTION 3.1 Servicing Compensation.........................................14
ARTICLE IV
Rights of Series 2000-2 Certificateholders and Allocation
and Application of Collections
SECTION 4.1 Allocations; Payments to Seller................................16
SECTION 4.2 Monthly Interest; Determination of Certificate Rate............16
SECTION 4.3 Determination of Monthly Principal.............................17
SECTION 4.4 Establishment of Reserve Fund and Funding Accounts.............18
SECTION 4.5 Deficiency Amount..............................................21
SECTION 4.6 Application of Investor Non-Principal Collections, Investment
Proceeds, Servicer Advances and Available Investor Principal
Collections....................................................21
SECTION 4.7 Distributions to Series 2000-2 Certificateholders..............24
SECTION 4.8 Application of Reserve Fund....................................26
SECTION 4.9 Investor Charge-Offs...........................................26
SECTION 4.10 Excess Servicing...............................................27
SECTION 4.11 Excess Principal Collections...................................27
SECTION 4.12 Excess Funding Account.........................................27
SECTION 4.13 Yield Supplement Account.......................................29
ARTICLE V
Distribution and Reports to Series 2000-2 Certificateholders
SECTION 5.1 Distributions..................................................29
SECTION 5.2 Reports and Statements to Series 2000-2 Certificateholders.....30
i
<PAGE>
SERIES 2000-2 SUPPLEMENT dated as of April 1, 2000 (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 Amended and Restated Pooling and
Servicing Agreement, dated as of April 1, 2000 (the "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.
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 2000-2 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
2000-2" or the "Series 2000-2 Certificates", which shall consist of three
Classes to be known, respectively, as the "Floating Rate Asset Backed
Certificates, Series 2000-2, Class A," "Floating Rate Asset Backed Certificates,
Series 2000-2, Class B" and "Floating Rate Asset Backed Certificates, Series
2000-2, Class C."
(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.
ARTICLE II
Definitions
SECTION 2.1 Definitions. (a) Whenever used in this Series Supplement
the following words and phrases shall have the following meanings:
"Accumulation Period" shall mean, unless an Early Amortization Event
shall have occurred prior thereto (other than an Early Amortization Event which
has resulted in an Early Amortization Period which has ended as described in
clause (c) of the definition of Early Amortization Period in the Agreement), the
period commencing on the Accumulation Period Commencement Date and ending upon
the earlier of (a) the commencement of an Early Amortization Period and (b) the
Expected Final Payment Date.
"Accumulation Period Commencement Date" shall mean the first day of the
calendar month which is the fourth calendar month prior to the calendar month in
which the Expected
1
<PAGE>
Final Payment Date occurs; provided, however, that upon written notice to the
Trustee, the Servicer may elect to postpone the Accumulation Period Commencement
Date so that the number of months included in the Accumulation Period shall
equal or exceed the Accumulation Period Length; provided further, however, that
such election shall only be permitted if the Accumulation Period Length is less
than four months; provided further, however, that the Accumulation Period
Commencement Date shall not be postponed beyond the first day of the calendar
month which is the second calendar month prior to the calendar month in which
the Expected Final Payment Date occurs.
"Accumulation Period Length" shall mean, as determined by the Servicer
on each Determination Date, beginning with the Determination Date occurring in
the calendar month which is the fifth calendar month prior to the calendar month
in which the Expected Final Payment Date occurs, the number of calendar months
that the Servicer expects to be required so that sufficient funds are on deposit
in the Principal Funding Account no later than the Expected Final Payment Date
to pay the outstanding principal balances of the Certificates, based on (a) the
expected monthly collections of Principal Receivables expected to be
distributable to the Series 2000-2 Certificateholders assuming a principal
payment rate no greater than the lowest Monthly Payment Rate on the Receivables
for the preceding three months, so that, for example, if the lowest Monthly
Payment Rate for that preceding three month period is 50% or more, the number of
calendar months required would be two; if the lowest Monthly Payment Rate for
that preceding three month period is between 33.33% and 50%, the number of
calendar months required would be three; and if the lowest Monthly Payment Rate
for that preceding three month period is between 25% and 33.33%, the number of
calendar months required would be four; and (b) the amount of principal expected
to be distributable to Investor Certificateholders of other Series which are
expected to be in their accumulation or amortization periods during the
Accumulation Period.
"Additional Early Amortization Event" shall have the meaning specified
in Section 6.1.
"Additional Interest" shall mean the sum of the Class A Additional
Interest, the Class B Additional Interest and the Class C Additional Interest.
"Adjustment Date" shall mean, with respect to any Interest Period, the
second London Business Day preceding such Interest Period; provided that with
respect to the first Interest Period, the Adjustment Date shall be April 25,
2000.
"Allocable Miscellaneous Payments" shall mean, with respect to any
Distribution Date, the product of (a) a fraction, the numerator of which is the
Series 2000-2 Allocation Percentage for the related Collection Period and the
denominator of which is the sum of the series allocation percentages for all
Series not in their revolving periods and (b) Miscellaneous Payments with
respect to the related Collection Period.
"Available Investor Principal Collections" shall mean, with respect to
any Distribution Date, the sum of (a) an amount equal to Investor Principal
Collections for such Distribution Date,
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<PAGE>
(b) Allocable Miscellaneous Payments with respect to such Distribution Date, (c)
any funds remaining in the Yield Supplement Account at the beginning of the
Accumulation Period or upon the occurrence of an Early Amortization Event and
(d) on the Termination Date, any funds in the Reserve Fund after giving effect
to Section 4.8.
"Carry-over Amount" shall mean the sum of the Class A Carry-over
Amount, the Class B Carry-over Amount and the Class C Carry-over Amount.
"Certificate Rate" means any of the Class A Certificate Rate, the Class
B Certificate Rate or the Class C Certificate Rate.
"Certificateholders" shall mean, collectively, the Class A
Certificateholders, the Class B Certificateholders and the Class C
Certificateholders.
"Certificateholders' Monthly Servicing Fee" shall have the meaning
specified in Section 3.1.
"Certificates" shall mean, collectively, the Class A Certificates, the
Class B Certificates and the Class C Certificates.
"Class A Additional Interest" shall have the meaning specified in
Section 4.2(a).
"Class A Carry-over Amount" shall mean, with respect to a Distribution
Date an amount equal to the excess, if any, of (a) the amount equal to the Class
A Monthly Interest for such Distribution Date calculated as if the Class A
Certificate Rate for such Distribution Date were based on LIBOR rather than the
Net Receivables Rate, over (b) the actual Class A Monthly Interest for such
Distribution Date.
"Class A Carry-over Amount Additional Interest" for a Distribution Date
shall mean an amount equal to the product of:
(a) the Class A Certificate Rate for the Interest Period then ended;
(b) a fraction, the numerator of which is the actual number of days
in that Interest Period and the denominator of which is 360; and
(c) any unpaid Class A Carry-over Amount, if any, for the previous
Distribution Date.
"Class A Certificate Rate" shall mean, for an Interest Period and the
Distribution Date immediately following such Interest Period, a rate per annum
equal to the lesser of (i) LIBOR plus twenty-five basis points (0.25%) per annum
and (ii) the related Net Receivables Rate.
"Class A Certificateholders" shall mean the Holders of Class A
Certificates.
3
<PAGE>
"Class A Certificates" shall mean any one of the "Floating Rate Asset
Backed Certificates, Series 2000-2, Class A" executed by the Seller and
authenticated by the Trustee, substantially in the form of Exhibit A.
"Class A Initial Invested Amount" shall mean, for any date, the initial
principal amount of the Class A Certificates, which is set forth in Schedule 2,
plus (x) the product of (i) the Class A Percentage multiplied by (ii) the amount
of any withdrawals from the Excess Funding Account in connection with an
increase in Pool Balance since the Closing Date, minus (y) the product of (i)
the Class A Percentage multiplied by (ii) the amount of any additions to the
Excess Funding Account in connection with a reduction in the Pool Balance since
the Closing Date.
"Class A Interest Shortfall" shall have the meaning specified in
Section 4.2(a).
"Class A Invested Amount" shall mean, for any date, an amount equal to
the result of (i) the Class A Initial Invested Amount, minus (ii) the aggregate
amount of principal payments made to Class A Certificateholders prior to such
date, minus (iii) the aggregate amount of all unreimbursed Class A Investor
Charge-Offs; provided that the Class A Invested Amount shall not be less than
zero.
"Class A Investor Charge-Off" shall have the meaning specified in
Section 4.9.
"Class A Monthly Interest" on any Distribution Date shall be an amount
equal to the product of (i) the Class A Certificate Rate, (ii) a fraction the
numerator of which is the actual number of days in the related Interest Period
and the denominator of which is 360, and (iii) (A) the outstanding principal
balance of the Class A Certificates as of the close of business on the preceding
Distribution Date (after giving effect to all repayments of principal made to
Class A Certificateholders on such preceding Distribution Date, if any) or (B)
in the case of the first Distribution Date with respect to Series 2000-2, the
initial principal amount of the Class A Certificates as set forth in Schedule 2.
"Class A Percentage" shall mean the percentage equivalent of a
fraction, the numerator of which is the outstanding principal balance of the
Class A Certificates and the denominator of which is the outstanding principal
balance of all Certificates.
"Class A Pool Factor" shall mean, with respect to any Determination
Date, a number carried out to eleven decimals representing the ratio of the
outstanding principal balance of the Class A Certificates as of such
Determination Date (determined after taking into account any reduction in the
outstanding principal balance of the Class A Certificates which shall occur on
the following Distribution Date) to the initial principal balance of the Class A
Certificates.
"Class B Additional Interest" shall have the meaning specified in
Section 4.2(a).
"Class B Carry-over Amount" shall mean, with respect to a Distribution
Date, an amount equal to the excess, if any, of (a) the amount equal to the
Class B Monthly Interest for such
4
<PAGE>
Distribution Date calculated as if the Class B Certificate Rate for such
Distribution Date were based on LIBOR rather than the Net Receivables Rate, over
(b) the actual Class B Monthly Interest for such Distribution Date.
"Class B Carry-over Amount Additional Interest" for a Distribution Date
shall mean an amount equal to the product of:
(a) the Class B Certificate Rate for the Interest Period then ended;
(b) a fraction, the numerator of which is the actual number of days
in that Interest Period and the denominator of which is 360; and
(c) any unpaid Class B Carry-over Amount, if any, for the previous
Distribution Date.
"Class B Certificate Rate" shall mean, for an Interest Period and the
Distribution Date immediately following such Interest Period, a rate per annum
equal to the lesser of (i) LIBOR plus fifty-two basis points (0.52%) per annum
and (ii) the related Net Receivables Rate.
"Class B Certificateholders" shall mean the Holders of Class B
Certificates.
"Class B Certificates" shall mean any one of the "Floating Rate Asset
Backed Certificates, Series 2000-2, Class B" executed by the Seller and
authenticated by the Trustee, substantially in the form of Exhibit A.
"Class B Initial Invested Amount" shall mean, for any date, the initial
principal amount of the Class B Certificates, which is set forth in Schedule 2,
plus (x) the product of (i) the Class B Percentage multiplied by (ii) the amount
of any withdrawals from the Excess Funding Account in connection with an
increase in Pool Balance since the Closing Date, minus (y) the product of (i)
the Class B Percentage multiplied by (ii) the amount of any additions to the
Excess Funding Account in connection with a reduction in the Pool Balance since
the Closing Date.
"Class B Interest Shortfall" shall have the meaning specified in
Section 4.2(a).
"Class B Invested Amount" shall mean, for any date, an amount equal to
the result of (i) the Class B Initial Invested Amount, minus (ii) the aggregate
amount of principal payments made to Class B Certificateholders prior to such
date, minus (iii) the aggregate amount of all unreimbursed Class B Investor
Charge-Offs; provided that the Class B Invested Amount shall not be less than
zero.
"Class B Investor Charge-Off" shall have the meaning specified in
Section 4.9.
"Class B Monthly Interest" on any Distribution Date shall be an amount
equal to the product of (i) the Class B Certificate Rate, (ii) a fraction the
numerator of which is the actual
5
<PAGE>
number of days in the related Interest Period and the denominator of which is
360, and (iii) (A) the outstanding principal balance of the Class B Certificates
as of the close of business on the preceding Distribution Date (after giving
effect to all repayments of principal made to Class B Certificateholders on such
preceding Distribution Date, if any) or (B) in the case of the first
Distribution Date with respect to Series 2000-2, the initial principal amount of
the Class B Certificates as set forth in Schedule 2.
"Class B Percentage" shall mean the percentage equivalent of a
fraction, the numerator of which is the outstanding principal balance of the
Class B Certificates and the denominator of which is the outstanding principal
balance of all Certificates.
"Class B Pool Factor" shall mean, with respect to any Determination
Date, a number carried out to eleven decimals representing the ratio of the
outstanding principal balance of the Class B Certificates as of such
Determination Date (determined after taking into account any reduction in the
outstanding principal balance of the Class B Certificates which shall occur on
the following Distribution Date) to the initial principal balance of the Class B
Certificates.
"Class C Additional Interest" shall have the meaning specified in
Section 4.2(a).
"Class C Carry-over Amount" shall mean, with respect to a Distribution
Date, an amount equal to the excess, if any, of (a) the amount equal to the
Class C Monthly Interest for such Distribution Date calculated as if the Class C
Certificate Rate for such Distribution Date were based on LIBOR rather than the
Net Receivables Rate, over (b) the actual Class C Monthly Interest for such
Distribution Date.
"Class C Carry-over Amount Additional Interest" for a Distribution Date
shall mean an amount equal to the product of:
(a) the Class C Certificate Rate for the Interest Period then ended;
(b) a fraction, the numerator of which is the actual number of days
in that Interest Period and the denominator of which is 360; and
(c) any unpaid Class C Carry-over Amount, if any, for the previous
Distribution Date.
"Class C Certificate Rate" shall mean, for an Interest Period and the
Distribution Date immediately following such Interest Period, a rate per annum
equal to the lesser of (i) LIBOR plus one hundred five basis points (1.05%) per
annum and (ii) the related Net Receivables Rate.
"Class C Certificateholders" shall mean the Holders of Class C
Certificates.
6
<PAGE>
"Class C Certificates" shall mean any one of the "Floating Rate Asset
Backed Certificates, Series 2000-2, Class C" executed by the Seller and
authenticated by the Trustee, substantially in the form of Exhibit A.
"Class C Initial Invested Amount" shall mean, for any date, the initial
principal amount of the Class C Certificates, which is set forth in Schedule 2,
plus (x) the product of (i) the Class C Percentage multiplied by (ii) the amount
of any withdrawals from the Excess Funding Account in connection with an
increase in Pool Balance since the Closing Date, minus (y) the product of (i)
the Class C Percentage multiplied by (ii) the amount of any additions to the
Excess Funding Account in connection with a reduction in the Pool Balance since
the Closing Date.
"Class C Interest Shortfall" shall have the meaning specified in
Section 4.2(a).
"Class C Invested Amount" shall mean, for any date, an amount equal to
the result of (i) the Class C Initial Invested Amount, minus (ii) the aggregate
amount of principal payments made to Class C Certificateholders prior to such
date, minus (iii) the aggregate amount of all unreimbursed Class C Investor
Charge-Offs; provided that the Class C Invested Amount shall not be less than
zero.
"Class C Investor Charge-Off" shall have the meaning specified in
Section 4.9.
"Class C Monthly Interest" on any Distribution Date shall be an amount
equal to the product of (i) the Class C Certificate Rate, (ii) a fraction the
numerator of which is the actual number of days in the related Interest Period
and the denominator of which is 360, and (iii) (A) the outstanding principal
balance of the Class C Certificates as of the close of business on the preceding
Distribution Date (after giving effect to all repayments of principal made to
Class C Certificateholders on such preceding Distribution Date, if any) or (B)
in the case of the first Distribution Date with respect to Series 2000-2, the
initial principal amount of the Class C Certificates as set forth in Schedule 2.
"Class C Percentage" shall mean the percentage equivalent of a
fraction, the numerator of which is the outstanding principal balance of the
Class C Certificates and the denominator of which is the outstanding principal
balance of all Certificates.
"Class C Pool Factor" shall mean, with respect to any Determination
Date, a number carried out to eleven decimals representing the ratio of the
outstanding principal balance of the Class C Certificates as of such
Determination Date (determined after taking into account any reduction in the
outstanding principal balance of the Class C Certificates which shall occur on
the following Distribution Date) to the initial principal balance of the Class C
Certificates.
"Closing Date" shall mean April 27, 2000.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
7
<PAGE>
"Controlled Accumulation Amount" shall mean the quotient obtained by
dividing the Invested Amount as of the Determination Date on which the
Accumulation Period Length is determined (after giving effect to any changes
therein on such date) by the number of months comprising the Accumulation Period
Length.
"Controlled Deposit Amount" shall mean, for any Distribution Date with
respect to the Accumulation Period, the excess, if any, of (i) the product of
the Controlled Accumulation Amount and the number of Distribution Dates from and
including the first Distribution Date during the Accumulation Period through and
including such Distribution Date over (ii) the sum of amounts on deposit in the
Excess Funding Account and the Principal Funding Account, in each case before
giving effect to any withdrawals from or deposits to such accounts on such
Distribution Date.
"Deficiency Amount" shall have the meaning specified in Section 4.5.
"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 2000-2.
"Excess Funding Account" shall have the meaning specified in Section
4.4(d).
"Excess Principal Collections" shall mean the amounts equal to the
balances referred to as such in Sections 4.6(b)(ii) and 4.6(c)(ii).
"Excess Servicing", shall mean, with respect to any Distribution Date,
the amount, if any, specified pursuant to Section 4.6(a)(xi) with respect to
such Distribution Date.
"Expected Final Payment Date" shall mean the April 2005 Distribution
Date.
"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 Unconcentrated Pool Balance as of such last day; provided,
however, for 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 is the sum of the initial principal balances of
the Series 2000-2 Certificates and the denominator of which is the
Unconcentrated Pool Balance on the last day of the Collection Period immediately
preceding the Closing Date.
8
<PAGE>
"Initial Invested Amount" shall equal the sum of the Class A Initial
Invested Amount, the Class B Initial Invested Amount and the Class C Initial
Invested 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 period from and including the Distribution Date immediately preceding such
Distribution Date (or, in the case of the first Distribution Date, from and
including the Closing Date) to but excluding such Distribution Date.
"Invested Amount" shall mean, for any date, the sum of the Class A
Invested Amount, the Class B Invested Amount and the Class C Invested Amount.
"Investment Proceeds" shall mean, with respect to any Distribution
Date, all interest and other investment earnings (net of losses and investment
expenses) on the related Determination Date on funds on deposit in the Series
2000-2 Accounts, together with an amount equal to the Series 2000-2 Allocation
Percentage of the interest and other investment earnings (net of losses and
investment expenses) 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.
"Investor 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, after giving effect to any allocation of any portion of that
Defaulted Amount to the Dealer Overconcentration Series, and (b) the Floating
Allocation Percentage for the related Collection Period.
"Investor 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
deposited in the Collection Account for the related Collection Period after
giving effect to any allocations to the Dealer Overconcentration Series for such
Collection Period.
"Investor Principal Collections" shall mean, with respect to any
Distribution Date, the sum of (a) the product of (i) the Floating Allocation
Percentage, with respect to the Revolving Period, or the Principal Allocation
Percentage, with respect to the Accumulation Period or an Early Amortization
Period, for the related Collection Period (or the portion of the Collection
Period which occurs as part of the first Collection Period during an Early
Amortization Period), and (ii) Principal Collections for the related Collection
Period after giving effect to any allocations to the Dealer Overconcentration
Series for such Collection Period and (b) the amount, if any, of Non-Principal
Collections to be allocated with respect to the Investor Default Amount or
unreimbursed Class A, Class B or Class C Investor Charge-Offs pursuant to
Section 4.6(a)(vi) or 4.6(a)(vii); provided that in the case of clause (a), if
for any Distribution Date the sum of the Floating Allocation Percentage (if the
Revolving Period is in effect), the Principal Allocation Percentage (if the
Early Amortization Period or the Accumulation Period is in effect), the floating
allocation percentages for all other outstanding Series of Investor Certificates
in their revolving periods and
9
<PAGE>
the principal allocation percentages for all other outstanding Series of
Investor Certificates in their early amortization or accumulation periods
exceeds 100%, then, after giving effect to any allocations to the Dealer
Overconcentration Series, Principal Collections shall be allocated among all
Series (including Series 2000-2) pari passu and pro rata on the basis of such
floating allocation percentages and principal allocation percentages.
"LIBOR" shall mean, with respect to any Interest Period, the offered
rates for deposits in United States dollars having a maturity of one month (the
"Index Maturity") commencing on the related Adjustment Date which appears on the
Telerate Page 3750 as of approximately 11:00 A.M., London time, on the date of
calculation as determined by the Trustee. If at least two such offered rates
appear on the Telerate Page 3750, LIBOR shall be the arithmetic mean (rounded
upwards, if necessary, to the nearest one-sixteenth of a percent) of such
offered rates. If fewer than two such offered rates appear, LIBOR with respect
to such Interest Period shall be determined at approximately 11:00 A.M., London
time, on such Adjustment Date on the basis of the rate at which deposits in
United States dollars having the Index Maturity are offered to prime banks in
the London interbank market by four major banks in the London interbank market
selected by the Trustee and in a principal amount equal to an amount of not less
than U.S. $1,000,000 and that is representative for a single transaction in such
market at such time. The Trustee shall request the principal London office of
each of such banks to provide a quotation of its rate. If at least two such
banks quote rates to the Trustee, LIBOR shall be the arithmetic mean (rounded
upwards, if necessary, as aforesaid) of such quotations. If fewer than two of
such banks quote rates to the Trustee, LIBOR with respect to such Interest
Period shall be the arithmetic mean (rounded upwards as aforesaid) of the rates
quoted at approximately 11:00 A.M., New York City time, on such Adjustment Date
by three major banks in New York, New York selected by the Trustee for loans in
United States dollars to leading European banks having the Index Maturity and in
a principal amount equal to an amount of not less than U.S. $1,000,000 and that
is representative for a single transaction in such market at such time;
provided, however, that if the banks selected as aforesaid are not providing
quotations as mentioned in this sentence, LIBOR in effect for the applicable
period shall be LIBOR in effect for the previous period. Promptly after
calculation of LIBOR with respect to any Interest Period, the Trustee shall, if
any Certificates are listed on the Luxembourg Stock Exchange, communicate the
result of such calculation to the Luxembourg Stock Exchange in accordance with
instructions from the Servicer (which may be standing instructions).
"London Business Day" shall mean any business day on which dealings in
deposits in United States dollars are transacted in the London interbank market.
"Monthly Interest" shall have the meaning specified in Section 4.2.
"Monthly Principal" shall have the meaning specified in Section 4.3.
"Monthly Servicing Fee" shall have the meaning specified in Section
3.1.
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"Net Receivables Rate" shall mean, with respect to each Distribution
Date immediately following an Interest Period, (i) the weighted average of the
interest rates borne by the Receivables during the second Collection Period
preceding such Distribution Date (interest payments on the Receivables at such
rates being due and payable in the Collection Period preceding such Distribution
Date) plus (ii) the product of (x) the Monthly Payment Rate for the Collection
Period preceding such Distribution Date, (y) the Discount Factor for such
Distribution Date and (z) twelve less (iii) 2% per annum, unless the Monthly
Servicing Fee has been waived (other than a deemed waiver under Section 3.1) for
such Distribution Date, in which case, solely for that Distribution Date, "2%
per annum" will be deemed to be replaced by "0% per annum".
"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 Invested Amount as of
the last day of the Revolving Period and the denominator of which is the
Unconcentrated Pool Balance as of the last day of the immediately preceding
Collection Period.
"Principal Funding Account" shall have the meaning specified in Section
4.4(c).
"Private Holder" shall mean each holder of a right to receive interest
or principal in respect of any direct or indirect interest in the Trust,
including any financial instrument or contract the value of which is determined
in whole or part by reference to the Trust (including the Trust's assets, income
of the Trust or distributions made by the Trust), excluding any interest in the
Trust represented by any Series or Class of Certificates or any other interests
as to which the Trustee has received an Opinion of Counsel to the effect that
such Series, Class or other interest shall be treated as debt or otherwise not
as an equity interest in either the Trust or the Receivables for federal income
tax purposes (unless such interest is convertible or exchangeable into an
interest in the Trust or the Trust's income or such interest provides for
payment of equivalent value). Notwithstanding the immediately preceding
sentence, "Private Holder" shall also include any other Person that the Seller
determines is a "partner" within the meaning of Section 1.7704-1(h)(1)(ii) of
the U.S. Treasury Regulations (including by reason of Section 1.7704-1(h)(3)) or
any successor provision of law. Any Person holding more than one interest in the
Trust, each of which separately would cause such Person to be a Private Holder,
shall be treated as a single Private Holder. Each holder of an interest in a
Private Holder which is a partnership, S corporation or a grantor trust under
the Internal Revenue Code shall be treated as a Private Holder unless excepted
with the consent of the Seller (which consent shall be based on an Opinion of
Counsel generally to the effect that the action taken pursuant to the consent
shall not cause the Trust to become a publicly traded partnership treated as a
corporation). Notwithstanding anything to the contrary herein, each Class C
Certificateholder shall be considered to be a Private Holder.
"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 and (ii) the amounts distributable pursuant to Section
4.7(a)(i).
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"Required Participation Percentage" shall mean, with respect to Series
2000-2, 105%; provided, however, that the Seller may, upon 10 days' prior notice
to the Trustee, each Rating Agency and any Enhancement Provider, reduce the
Required Participation Percentage to a percentage which shall not be less than
100%; provided, however, that the Rating Agency Condition is satisfied.
"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 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) three and one-half
percent (3.5%) and (b) the aggregate outstanding principal balance of the Series
2000-2 Certificates as of such Distribution Date (after giving effect to any
changes therein on such Distribution Date).
"Revolving Period" shall mean the period beginning at the opening of
business on the Closing Date and ending on the earlier of (a) the close of
business on the day immediately preceding the Accumulation Period Commencement
Date, and (b) 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 Revolving Period shall recommence as of the close of business on
the day such Early Amortization Period ends.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series 2000-2" or the "Series 2000-2 Certificates" shall mean the
Series of Investor Certificates, the terms of which are specified in this Series
Supplement.
"Series 2000-2 Accounts" shall have the meaning specified in Section
4.4(f).
"Series 2000-2 Allocation Percentage" for a 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 Collection Period immediately
preceding such Collection Period and the denominator of which is the Trust
Invested Amount on such last Business Day.
"Series 2000-2 Certificateholders" shall mean, collectively, the Class
A Certificateholders, the Class B Certificateholders and the Class C
Certificateholders.
"Series 2000-2 Certificateholders' Interest" shall mean that portion of
the Certificateholders' Interest evidenced by the Series 2000-2 Certificates.
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"Series 2000-2 Certificates" shall mean, collectively, the Class A
Certificates, the Class B Certificates and the Class C Certificates.
"Series 2000-2 Excess Principal Collection" shall mean that portion of
Excess Principal Collections allocated to Series 2000-2 pursuant to Section
4.11.
"Series 2000-2 Principal Shortfall" with respect to any Distribution
Date, shall equal the excess of (i) (x) for any Distribution Date with respect
to the Accumulation Period, the Controlled Deposit Amount or (y) for any
Distribution Date with respect to an Early Amortization Period, the Invested
Amount, over (ii) Available Investor Principal Collections for such Distribution
Date (excluding any portion thereof attributable to Excess Principal
Collections).
"Servicer Advance" shall have the meaning specified in Section 3.2.
"Servicing Fee Rate" shall mean, with respect to Series 2000-2, 2.00%.
"Special Payment Date" shall mean each Distribution Date with respect
to an Early Amortization Period (other than an Early Amortization Period that
has ended as described in clause (c) of the definition of Early Amortization
Period in the Agreement).
"Telerate Page 3750" shall mean the display designated as page 3750 on
Telerate (or such other page as may replace such page on that service for the
purpose of displaying London interbank offered rates of major banks).
"Termination Date" for Series 2000-2 shall mean the April 2007
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 2000-2.
"Yield Supplement Account" shall have the meaning specified in Section
4.4(e).
"Yield Supplement Account Deposit Amount" shall mean, with respect to
any Distribution Date, the amount, if any, by which the Yield Supplement Account
Required Amount exceeds the amount on deposit in the Yield Supplement Account
after giving effect to any withdrawals from the Yield Supplement Account on that
Distribution Date.
"Yield Supplement Account Required Amount" shall mean an amount equal
to one-half of one percent (0.5%) of the aggregate initial principal balance of
the Series 2000-2 Certificates.
(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 2000-2, Standard &
Poor's, Moody's and Fitch. As used in this Series Supplement and in the
Agreement with respect to Series 2000-2, "highest
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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. 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".
(e) All references to any agreement (including the Agreement) shall be
understood to be references to such agreement as it may be amended, amended and
restated or otherwise modified from time to time.
ARTICLE III
Servicing Fee
SECTION 3.1 Servicing Compensation. A monthly servicing fee for your
series (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 product of (i) the Series 2000-2 Allocation
Percentage and (ii) the Pool Balance as of the last day of the second Collection
Period preceding such Distribution Date. The share of the Monthly Servicing Fee
allocable to the Series 2000-2 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 second Collection Period second
preceding such Distribution Date and shall be payable in the manner set forth in
Section 4.6 and Section 4.10; provided, however, that with respect to the first
Distribution Date for Series 2000-2, clause (b) of this sentence shall be deemed
to refer to the Invested Amount on the Closing Date. Notwithstanding the
foregoing, with respect to the first Distribution Date for Series 2000-2, 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 2000-2
Certificateholders be liable for the share of the
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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, the Trustee and the Series 2000-2 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 or to the extent that amounts may be netted with respect thereto in
accordance with the terms of this Series Supplement or the Agreement.
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 reasonably
believes that sufficient Non-Principal Collections shall be available on any
future Distribution Date to pay 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 and the Agreement; provided, however, that such Monthly Servicing Fee
shall be paid on a future Distribution Date to the extent amounts are available
therefor pursuant to Section 4.10(a) or to the extent that amounts may be netted
with respect thereto in accordance with the terms of this Series Supplement or
the Agreement; provided further, however, that, to the extent any such waived
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.
If the Servicer is DFS, and payment of any portion of the Monthly
Servicing Fee to DFS on a Distribution Date would require a withdrawal from the
Reserve Fund, then absent affirmative notice to the Trustee by DFS to the
contrary, DFS shall be deemed to have waived payment of that portion on that
Distribution Date; provided that a deemed waiver described in this sentence
shall not occur on more than two Distribution Dates in any twelve month period
and shall not occur on any two consecutive Distribution Dates.
SECTION 3.2 Servicer Advances. On or before each Distribution Date, the
Servicer will deposit into the Collection Account as an advance (a "Servicer
Advance") an amount equal to the amount of interest due but unpaid on any
Receivable for the related Collection Period (but only to the extent that the
Servicer reasonably expects to recover that Servicer Advance from subsequent
payments on that delinquent Receivable). No Servicer Advance shall be made by
the Servicer for the principal portion of the Receivables or for Defaulted
Receivables. The Servicer shall reimburse itself for a Servicer Advance on the
subsequent Determination Date or Distribution Date (and, if necessary, on other
Determination Dates or Distribution Dates) out of funds collected on all
Receivables prior to the deposit of funds in the Collection Account.
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ARTICLE IV
Rights of Series 2000-2 Certificateholders and
Allocation and Application of Collections
SECTION 4.1 Allocations; Payments to Seller. (a) Subject to Section
4.3(c) of the Agreement, and after giving effect to any allocations to the
Dealer Overconcentration Series, Collections of Non-Principal Receivables and
Principal Receivables, Miscellaneous Payments and Defaulted Amounts, as they
relate to Series 2000-2, shall be allocated and distributed as set forth in this
Article IV.
(b) The Servicer shall instruct the Trustee to withdraw from the
Collection Account and pay (and the Trustee shall so withdraw and pay) to the
Seller on each Deposit Date any funds not required to be held therein (or not
required to be transferred from the Collection Account to a deposit account for
the benefit of Investor Certificateholders of any Series).
The withdrawals to be made from the Collection Account pursuant to this
Section 4.1(b) do not apply to deposits into the Collection Account that do not
represent Collections, including Miscellaneous Payments, payment of the purchase
price for the Certificateholders' Interest pursuant to Section 2.3 of the
Agreement, payment of the purchase price for the Series 2000-2
Certificateholders' Interest pursuant to Section 7.1 of this Series Supplement
and proceeds from the sale, disposition or liquidation of Receivables pursuant
to Section 9.2 or 12.2 of the Agreement.
SECTION 4.2 Monthly Interest; Determination of Certificate Rate. (a)
"Monthly Interest" with respect to the Series 2000-2 Certificates on any
Distribution Date shall be an amount equal to the sum of the Class A Monthly
Interest, the Class B Monthly Interest and the Class C Monthly Interest.
Interest on the respective outstanding principal balance of each Class of
Certificates shall accrue at the Class A Certificate Rate, Class B Certificate
Rate or Class C Certificate Rate, as applicable, and shall be payable to
Certificateholders on each Distribution Date.
On the Determination Date preceding each Distribution Date, the
Servicer shall determine the excess, if any (the "Class A Interest Shortfall"),
of (x) the Class A Monthly Interest for the Interest Period applicable to such
Distribution Date over (y) the amount which shall be available to be paid to the
Class A Certificateholders as Class A Monthly Interest from the Interest Funding
Account on such Distribution Date pursuant to this Series Supplement. "Class A
Additional Interest" shall mean, as of any Distribution Date, an amount equal to
the product of (i) the Class A Certificate Rate for the Interest Period then
ended, (ii) a fraction the numerator of which is the actual number of days in
that Interest Period and the denominator of which is 360, and (iii) the Class A
Interest Shortfall, if any, for the previous Distribution Date. Notwithstanding
anything to the contrary herein, Class A Additional Interest shall be payable to
the Interest Funding Account or distributed to Class A Certificateholders only
to the extent permitted by applicable law.
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On the Determination Date preceding each Distribution Date, the
Servicer shall determine the excess, if any (the "Class B Interest Shortfall"),
of (x) the Class B Monthly Interest for the Interest Period applicable to such
Distribution Date over (y) the amount which shall be available to be paid to the
Class B Certificateholders as Class B Monthly Interest from the Interest Funding
Account on such Distribution Date pursuant to this Series Supplement. "Class B
Additional Interest" shall mean, as of any Distribution Date, an amount equal to
the product of (i) the Class B Certificate Rate for the Interest Period then
ended, (ii) a fraction the numerator of which is the actual number of days in
that Interest Period and the denominator of which is 360, and (iii) the Class B
Interest Shortfall, if any, for the previous Distribution Date. Notwithstanding
anything to the contrary herein, Class B Additional Interest shall be payable to
the Interest Funding Account or distributed to Class B Certificateholders only
to the extent permitted by applicable law.
On the Determination Date preceding each Distribution Date, the
Servicer shall determine the excess, if any (the "Class C Interest Shortfall"),
of (x) the Class C Monthly Interest for the Interest Period applicable to such
Distribution Date over (y) the amount which shall be available to be paid to the
Class C Certificateholders as Class C Monthly Interest from the Interest Funding
Account on such Distribution Date pursuant to this Series Supplement. "Class C
Additional Interest" shall mean, as of any Distribution Date, an amount equal to
the product of (i) the Class C Certificate Rate for the Interest Period then
ended, (ii) a fraction the numerator of which is the actual number of days that
Interest Period and the denominator of which is 360, and (iii) such Class C
Interest Shortfall, if any, for the previous Distribution Date. Notwithstanding
anything to the contrary herein, Class C Additional Interest shall be payable to
the Interest Funding Account or distributed to Class C Certificateholders only
to the extent permitted by applicable law.
(b) The Distribution Date Statement shall specify the applicable Net
Receivables Rate for the next Interest Period. Based on such Distribution Date
Statement (and on the Trustee's calculation of LIBOR) the Trustee shall
determine the Class A, Class B and Class C Certificate Rates for each Interest
Period on the Determination Date immediately preceding each Interest Period. The
Trustee shall notify the Servicer on each Adjustment Date of the Trustee's
determination of LIBOR. The establishment of LIBOR on each Adjustment Date (or
in the case of the date specified in the proviso to the definition of Adjustment
Date, promptly following such date) by the Trustee and the Trustee's calculation
of the Class A, Class B and Class C Certificate Rates shall (in the absence of
manifest error) be final and binding.
SECTION 4.3 Determination of Monthly Principal. The amount of monthly
principal ("Monthly Principal") distributable with respect to the Series 2000-2
Certificates on each Distribution Date with respect to an Early Amortization
Period and the Accumulation Period shall be equal to the Available Investor
Principal Collections with respect to such Distribution Date; provided, however,
that for each Distribution Date with respect to the Accumulation Period, Monthly
Principal, at the option of the Seller, may be increased to include amounts
otherwise payable or distributable to the Seller (including without limitation
(i) amounts allocable to other Series but not required to be paid to such other
Series on such Distribution Date and not required
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to be kept in a deposit account for such other Series after such Distribution
Date and (ii) Collections otherwise allocable to the Seller's Interest)) or may
be limited to the Controlled Deposit Amount for such Distribution Date; and
provided further, however, that Monthly Principal shall not exceed the
outstanding principal balance of the Series 2000-2 Certificates.
SECTION 4.4 Establishment of Reserve Fund and Funding Accounts. (a)(i)
The Trustee, for the benefit of the Series 2000-2 Certificateholders, shall
cause to be established and maintained in the name of the Trustee, on behalf of
the Trust, an Eligible Deposit Account (the "Reserve Fund") which shall be
identified as the "Reserve Fund for the Distribution Financial Services
Floorplan Master Trust, Series 2000-2" and shall bear a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Series 2000-2 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 2000-2 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 and 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 2000-2
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 2000-2" and shall
bear a designation clearly indicating that the funds deposited therein are held
for the benefit of the Series 2000-2 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 2000-2 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 and
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 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 Series 2000-2
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 2000-2" and shall
bear a
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designation clearly indicating that the funds deposited therein are held for the
benefit of the Series 2000-2 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 Distribution Date. All such Eligible Investments shall
be held by the Trustee for the benefit of the Series 2000-2 Certificateholders.
On each Distribution Date all interest and other investment earnings (net of
losses and investment expenses) on funds on deposit in the Principal Funding
Account and 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
Principal Funding Account on the Business Day preceding the Expected Final
Payment Date are not required to be invested overnight.
(d)(i) The Trustee, for the benefit of the Series 2000-2
Certificateholders, shall establish and maintain in the name of the Trustee, on
behalf of the Trust, an Eligible Deposit Account (the "Excess Funding Account"),
which shall be identified as the "Excess Funding Account for Distribution
Financial Services Floorplan Master Trust, Series 2000-2" and shall bear a
designation clearly indicating that the funds deposited therein are held for the
benefit of the Series 2000-2 Certificateholders.
(ii) At the direction of the Servicer, funds on deposit in the Excess
Funding Account shall be invested by the Trustee in Eligible Investments
selected by the Servicer. All such Eligible Investments shall be held by the
Trustee for the benefit of the Series 2000-2 Certificateholders. On each
Distribution Date, all interest and other investment earnings (net of losses and
investment expenses) on funds on deposit in the Excess Funding Account and
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 Excess Funding
Account on any Distribution Date shall be invested in Eligible Investments that
shall mature so that such funds shall be available on or before the close of
business on the Business Day next preceding the following Distribution Date;
provided that if, pursuant to Section 4.12, deposits to and withdrawals from the
Excess Funding Account are being made on a weekly or daily basis, then such
Eligible Investments shall mature on each Business Day on a weekly or daily
basis, as the case may be; provided further that such Eligible Investments shall
still mature so that funds shall be available on or before the close of business
on the Business Day next preceding the following Distribution Date. Funds
deposited in the Excess Funding Account on the Business Day preceding a
Distribution Date are not required to be invested overnight.
(e)(i) The Trustee, for the benefit of the Series 2000-2
Certificateholders, shall establish and maintain in the name of the Trustee, on
behalf of the Trust, an Eligible Deposit Account (the "Yield Supplement
Account"), which shall be identified as the "Yield Supplement Account for the
Distribution Financial Services Floorplan Master Trust, Series 2000-2" and shall
bear a designation clearly indicating that the funds deposited therein are held
for the benefit of the Series 2000-2 Certificateholders.
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(ii) At the direction of the Servicer, funds on deposit in the Yield
Supplement 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 2000-2 Certificateholders. On each
Distribution Date, all interest and other investment earnings (net of losses and
investment expenses) on funds on deposit in the Yield Supplement Account and
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 Yield
Supplement Account on the Business Day preceding a Distribution Date are not
required to be invested overnight.
(f)(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, the Principal
Funding Account, the Yield Supplement Account and the Excess Funding Account
(collectively, the "Series 2000-2 Accounts") and in all proceeds thereof. The
Series 2000-2 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 2000-2 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 2000-2 Account meeting the conditions specified
in paragraph (a)(i), (b)(i), (c)(i), (d)(i) or (e)(i) above, as applicable, as
an Eligible Deposit Account and shall transfer any cash and/or investments to
such new Series 2000-2 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 2000-2 Account, except as
expressly provided herein. Schedule 1, which is hereby incorporated into and
made part of this Series Supplement, identifies each Series 2000-2 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 2000-2 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 2000-2
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 2000-2 Accounts for the purposes of
carrying out the Servicer's or the Trustee's duties hereunder.
(g) Unless otherwise agreed to by the Rating Agencies, at no time may
funds on deposit in any Series 2000-2 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.
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(h) Upon payment in full of all amounts payable on the Series 2000-2
Certificates pursuant to this Series Supplement, or any earlier date
contemplated by this Series Supplement, any funds remaining on deposit in any
Series 2000-2 Account shall be paid to the Seller.
(i) The Trustee shall not in any way be held liable by reason of any
insufficiency in any Series 2000-1 Account held by the Trustee resulting from
any investment loss on any Eligible Investment included therein (except to the
extent that the Trustee is the obligor and has defaulted thereon).
SECTION 4.5 Deficiency Amount. On each Determination Date, with respect
to the related Distribution Date (the "current Distribution Date"), the Servicer
shall determine the amount (the "Deficiency Amount"), if any, by which
(a) the sum of
(i) the Monthly Interest for the current Distribution Date,
(ii) any Monthly Interest for any prior Distribution Dates
not distributed to the Certificateholders on a prior
Distribution Date,
(iii) Additional Interest, if any, for the current
Distribution Date and any Additional Interest for any
prior Distribution Date not distributed to the
Certificateholders on such prior Distribution Date (but
only to the extent permitted by applicable law),
(iv) the Certificateholders' Monthly Servicing Fee for the
current Distribution Date,
(v) the Investor Default Amount for the current
Distribution Date, and
(vi) the Series 2000-2 Allocation Percentage of the amount
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 Investor Non-Principal Collections for the
current Distribution Date plus any Investment Proceeds, if any, with
respect to such Distribution Date.
SECTION 4.6 Application of Investor Non-Principal Collections,
Investment Proceeds, Servicer Advances and Available Investor Principal
Collections. The Servicer shall direct the
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Trustee (by setting forth the following amounts in the related Distribution Date
Statement) to make the following distributions on each Distribution Date (and
the Trustee shall distribute):
(a) On each Distribution Date, an amount equal to the sum of Investor
Non-Principal Collections on deposit in the Collection Account (after giving
effect to repayment to the Servicer of any Servicer Advances from any previous
Distribution Dates) and any Investment Proceeds and the Servicer Advance, if
any, for such Distribution Date, with respect to such Distribution Date in the
following priority:
(i) first, an amount equal to the Class A Monthly Interest
for such Distribution Date, plus the amount of any Class A Monthly
Interest for any prior Distribution Dates not distributed to the Class
A Certificateholders on such prior Distribution Dates plus (but only to
the extent permitted under applicable law) the amount of any Class A
Additional Interest for the current Distribution Date and, without
duplication, any Class A Additional Interest previously due but not
distributed to the Class A Certificateholders on prior Distribution
Dates, shall be deposited to the Interest Funding Account;
(ii) second, an amount equal to the Class B Monthly
Interest for such Distribution Date, plus the amount of any Class B
Monthly Interest for any prior Distribution Dates not distributed to
the Class B Certificateholders on such prior Distribution Dates plus
(but only to the extent permitted under applicable law) the amount of
any Class B Additional Interest for the current Distribution Date and,
without duplication, any Class B Additional Interest previously due but
not distributed to the Class B Certificateholders on prior Distribution
Dates, shall be deposited to the Interest Funding Account;
(iii) third, an amount equal to the Class C Monthly
Interest for such Distribution Date, plus the amount of any Class C
Monthly Interest for any prior Distribution Dates not distributed to
the Class C Certificateholders on such prior Distribution Dates plus
(but only to the extent permitted under applicable law) the amount of
any Class C Additional Interest for the current Distribution Date and,
without duplication any Class C Additional Interest previously due but
not distributed to the Class C Certificateholders on prior Distribution
Dates, shall be deposited to the Interest Funding Account;
(iv) fourth, so long as DFS is not the Servicer, an amount
equal to the Certificateholders' Monthly Servicing Fee for such
Distribution Date shall be distributed to the Servicer (unless such
amount has been netted against deposits to the Collection Account);
(v) fifth, an amount equal to the Reserve Fund Deposit
Amount, if any, for such Distribution Date shall be deposited in the
Reserve Fund;
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(vi) sixth, an amount equal to the Investor Default
Amount, if any, for such Distribution Date shall be treated as a
portion of Investor Principal Collections for such Distribution Date;
(vii) seventh, an amount required to reimburse
unreimbursed Class A Investor Charge-Offs, Class B Investor Charge-Offs
and Class C Investor Charge-Offs pursuant to Section 4.9 shall be
treated as a portion of Investor Principal Collections for such
Distribution Date;
(viii) eighth, so long as DFS is the Servicer, an amount
equal to the Certificateholders' Monthly Servicing Fee for that
Distribution Date shall be distributed to the Servicer, unless that
amount has been netted against deposits to the Collection Account by
DFS or waived;
(ix) ninth, any unpaid Class A Carry-over Amount, Class B
Carry-over Amount or Class C Carry-over Amount for any previous
Distribution Date, plus to the extent permitted under applicable law,
the amount of any Class A Carry-over Amount Additional Interest, Class
B Carry-over Amount Additional Interest and Class C Carry-over Amount
Additional Interest for the current Distribution Date and, without
duplication, any Class A Carry-over Amount Additional Interest, Class B
Carry-over Amount Additional Interest and Class C Carry-over Amount
Additional Interest previously due but not distributed to the Class A
Certificateholders, Class B Certificateholders and Class C
Certificateholders, respectively, shall be deposited in the Interest
Funding Account;
(x) tenth, if that Distribution Date occurs prior to the
beginning of the Accumulation Period and prior to the occurrence of an
Early Amortization Event, an amount equal to the Yield Supplement
Account Deposit Amount, if any, for that Distribution Date will be
deposited in the Yield Supplement Account; and
(xi) eleventh, the balance, if any, shall constitute
"Excess Servicing" and shall be allocated and distributed as set forth
in Section 4.10.
(b) On each Distribution Date with respect to the Revolving Period, the
Servicer shall direct the Trustee in writing by setting forth the following
amounts on the Distribution Date Statement to apply an amount equal to the
Available Investor Principal Collections deposited in the Collection Account for
the related Collection Period shall be applied in the following priority:
(i) first, if (A) the Unconcentrated Pool Balance at the
end of the preceding Collection Period is less than the Unconcentrated
Pool Balance at the end of the second preceding Collection Period and
(B) the Unconcentrated Pool Balance at the end of the preceding
Collection Period is less than the Required Participation Amount for
such Distribution Date (calculated before giving effect to any deposits
to be made on such Distribution Date to the Excess Funding Account and
any excess funding account for any
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other Series in their revolving periods to be made on such Distribution
Date), then the Servicer shall direct the Trustee to deposit (and the
Trustee shall deposit) Available Investor Principal Collections into
the Excess Funding Account in an amount which shall reduce the Invested
Amount such that, together with the deposits to the excess funding
accounts, if any, (and any resulting reductions in the invested
amounts) for other outstanding Series in their revolving periods for
such Distribution Date, the Unconcentrated Pool Balance is equal to the
Required Participation Amount, and
(ii) second, an amount equal to the balance (such balance
being part of "Excess Principal Collections"), if any, of such
Available Investor Principal Collections shall be applied in accordance
with Section 4.4 of the Agreement.
For purposes of determining the amount to be applied pursuant to subparagraph
(i) above, allocations of the amounts to be deposited in the Excess Funding
Account and the excess funding account for other outstanding Series shall be
made pro rata on the basis of the invested amounts (including the Invested
Amount for Series 2000-2).
If the Servicer has elected in respect of a Collection Period to make
withdrawals from the Excess Funding Account on a daily or weekly basis pursuant
to Section 4.12(b), then deposits into the Excess Funding Account required by
this Section 4.6(b) shall be made on each Business Day in such Collection Period
(if daily withdrawals and deposits have been elected) or on each Wednesday (or
the next succeeding Business Day if such Wednesday is not a Business Day) in
such Collection Period (if weekly withdrawals and deposits have been elected).
In the case of such election, the Unconcentrated Pool Balance referred to in
clause (B) above shall be the Unconcentrated Pool Balance on the preceding
Business Day, in the case of an election to make daily deposits and withdrawals,
and on the Monday next preceding the related Wednesday, in the case of an
election to make weekly deposits and withdrawals.
(c) On each Distribution Date (x) with respect to the
Accumulation Period or (y) an Early Amortization Period (if a Responsible
Officer of the Trustee has actual knowledge of such Early Amortization Period),
an amount equal to the Available Investor Principal Collections on deposit in
the Collection Account shall be distributed in the following priority:
(i) first, an amount equal to Monthly Principal for such
Distribution Date shall be deposited by the Servicer or the Trustee
into the Principal Funding Account; and
(ii) second, for each Distribution Date with respect to
the Accumulation Period (unless an Early Amortization Event has
occurred), an amount equal to the balance (such balance being part of
"Excess Principal Collections"), if any, of such Available Investor
Principal Collections shall be applied in accordance with the written
instructions of the Servicer in accordance with Section 4.4 of the
Agreement.
SECTION 4.7 Distributions to Series 2000-2 Certificateholders. (a) The
Servicer shall direct the Trustee (by setting forth the amounts in Section
4.7(a)(i) in the related Distribution
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Date Statement) to make (and the Trustee shall make) the following distributions
at the following times from the Interest Funding Account, the Principal Funding
Account and the Excess Funding Account:
(i) on each Distribution Date, available amounts on
deposit in the Interest Funding Account shall be distributed to the
Series 2000-2 Certificateholders in the following order of priority:
(A) first, to the Class A Certificateholders, an
amount equal to the sum of (i) the Class A Monthly Interest
for the current Distribution Date, plus (ii) any Class A
Monthly Interest that was not distributed on any prior
Distribution Date to the Class A Certificateholders, plus
(iii) to the extent permitted under applicable law, the amount
of any Class A Additional Interest for the current
Distribution Date and, without duplication, any Class A
Additional Interest previously due but not distributed to the
Class A Certificateholders;
(B) second, to the Class B Certificateholders, an
amount equal to the sum of (i) the Class B Monthly Interest
for the current Distribution Date, plus (ii) any Class B
Monthly Interest that was not distributed on any Distribution
Date prior to the current Distribution Date to the Class B
Certificateholders, plus (iii) to the extent permitted under
applicable law, the amount of any Class B Additional Interest
for the current Distribution Date and, without duplication,
any Class B Additional Interest previously due but not
distributed to the Class B Certificateholders;
(C) third, to the Class C Certificateholders, an
amount equal to the sum of (i) the Class C Monthly Interest
for the current Distribution Date, plus (ii) any Class C
Monthly Interest that was not distributed on any Distribution
Date prior to the current Distribution Date to the Class C
Certificateholders, plus (iii) to the extent permitted under
applicable law, the amount of any Class C Additional Interest
for the current Distribution Date and, without duplication,
any Class C Additional Interest previously due but not
distributed to the Class C Certificateholders;
(D) fourth, to the Class A Certificateholders, the
sum of any Class A Carry-over Amount for the current
Distribution Date plus any unpaid Class A Carry-over Amount
for any previous Distribution Date plus to the extent
permitted under applicable law, the amount of any Class A
Carry-over Amount Additional Interest for the current
Distribution Date and, without duplication, any Class A
Carry-over Amount Additional Interest previously due but not
distributed to the Class A certificateholders;
(E) fifth, to the Class B Certificateholders, the
sum of any Class B Carry-over Amount for the current
Distribution Date plus any unpaid Class B
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Carry-over Amount for any previous Distribution Date plus to
the extent permitted under applicable law, the amount of any
Class B Carry-over Amount Additional Interest for the current
Distribution Date and, without duplication, any Class B
Carry-over Amount Additional Interest previously due but not
distributed to the Class B certificateholders; and
(F) sixth, to the Class C Certificateholders, the sum
of any Class C Carry-over Amount for the current Distribution
Date plus any unpaid Class C Carry-over Amount for any
previous Distribution Date plus to the extent permitted under
applicable law, the amount of any Class C Carry-over Amount
Additional Interest for the current Distribution Date and,
without duplication, any Class C Carry-over Amount Additional
Interest previously due but not distributed to the Class C
certificateholders.
(ii) on each Special Payment Date (if a Responsible Officer of
the Trustee has actual knowledge of the Early Amortization Period) and
on the Expected Final Payment Date, all amounts on deposit in the
Principal Funding Account shall be distributed to the Series 2000-2
Certificateholders in the following order of priority: (A) first, to
the Class A Certificateholders until the outstanding principal balance
of the Class A Certificates has been reduced to zero; (B) second, to
the Class B Certificateholders until the outstanding principal balance
of the Class B Certificates has been reduced to zero; and (C) to the
Class C Certificateholders until the outstanding principal balance of
the Class C Certificates has been reduced to zero; provided, however,
that the maximum amount distributed pursuant to this clause (ii) on any
Distribution Date shall not exceed the excess, if any, of (x) the sum
of the outstanding principal balance of the Class A, Class B and Class
C Certificates, over (y) the sum of the unreimbursed Class A Investor
Charge-Offs, Class B Investor Charge-Offs and Class C Investor
Charge-Offs, each on such Distribution Date.
(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. (a) If Investor Non-Principal
Collections and Investment Proceeds on any Distribution Date (plus the amount of
any Servicer Advance for such Distribution Date) are not sufficient to make the
entire distributions required on such Distribution Date by Sections 4.6(a)(i),
(ii), (iii), (iv), (vi) and (viii), the Servicer shall direct the Trustee to
withdraw (and the Trustee shall 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), (iii), (iv), (vi) and (viii) in the
numerical order thereof.
(b) On the Termination Date, any funds in the Reserve Fund shall be
treated as Available Investor Principal Collections. Upon payment in full of
the outstanding principal balance of the
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Series 2000-2 Certificates, any funds remaining on deposit in the Reserve Fund
shall be paid to the Seller.
SECTION 4.9 Investor Charge-Offs. If on any Distribution Date (after
giving effect to the allocations, distributions, withdrawals and deposits to be
made on such Distribution Date) the balance of the Reserve Fund is zero, then
the Class C Invested Amount shall be reduced by the lesser of the Deficiency
Amount for that Distribution Date and the Investor Default Amount for that
Distribution Date (the lesser of such Deficiency Amount and such Investor
Default Amount being a "Class C Investor Charge-Off"). In the event that any
such reduction of the Class C Invested Amount would cause the Class C Invested
Amount to be a negative number, the Class C Invested Amount shall be maintained
at or reduced to zero, and the Class B Invested Amount shall be reduced by the
amount of such excess (the amount of such reduction being a "Class B Investor
Charge-Off"). In the event that any such reduction of the Class B Invested
Amount would cause the Class B Invested Amount to be a negative number, the
Class B Invested Amount shall be maintained at or reduced to zero, and the Class
A Invested Amount shall be reduced by the amount of such excess but not by more
than the Class A Invested Amount on such Distribution Date (the amount of such
reduction being a "Class A Investor Charge-Off"). Class A Investor Charge-Offs,
Class B Investor Charge-Offs and Class C Investor Charge-Offs shall thereafter
be reimbursed (in that order) and the Class A Invested Amount, Class B Invested
Amount and Class C Invested Amount increased (in that order) (but not by an
amount in excess of the aggregate unreimbursed Class A Investor Charge-Offs,
Class B Investor Charge-Offs and Class C Investor Charge-Offs, as the case may
be) on any Distribution Date by the sum of (a) Allocable Miscellaneous Payments
with respect to such Distribution Date and (b) the amount allocated and
available for that purpose pursuant to Section 4.6(a)(vii). The Servicer shall
be responsible for calculating Class A, Class B and Class C Investor Charge-Offs
and shall give the Trustee notice thereof by setting forth such amounts in the
Distribution Date Statement.
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 for such Distribution Date to make the following distributions in the
following priority:
(a) an amount equal to the aggregate outstanding amounts of
the 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.
SECTION 4.11 Excess Principal Collections.
"Series 2000-2 Excess Principal Collections", with respect to any
Distribution Date, shall mean an amount equal to the lesser of (a) the Series
2000-2 Principal Shortfall, if any, for such Distribution Date and (b) an amount
equal to the product of (x) excess principal collections for all Series for such
Distribution Date and (y) a fraction, the numerator of which is the Series
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2000-2 Principal Shortfall for such Distribution Date and the denominator of
which is the aggregate amount of principal shortfalls for all Series for such
Distribution Date.
SECTION 4.12 Excess Funding Account. (a) Any funds on deposit in the
Excess Funding Account at the beginning of the Accumulation Period or upon the
occurrence of an Early Amortization Event shall be deposited in the Principal
Funding Account. In addition, no funds shall be deposited in the Excess Funding
Account during the Accumulation Period or any Early Amortization Period.
(b) If (i) on any Determination Date during the Revolving Period there
are any funds in the Excess Funding Account and (ii) the Unconcentrated Pool
Balance at the end of the preceding Collection Period is greater than the
Unconcentrated Pool Balance at the end of the second preceding Collection
Period, then, subject to the other provisions of this Section 4.12(b) and to
Sections 4.12(c) and (d), the Invested Amount and the invested amounts (but, in
each case, not in excess of the initial principal amount of such Series) for all
other outstanding Series that provide for an excess funding account or similar
arrangement and are in their revolving periods shall be increased such that,
after giving effect to such increases, the Required Participation Amount is at
least equal to the Unconcentrated Pool Balance. On such Determination Date, the
Servicer shall notify the Trustee of the amount, if any, of such increase in the
Invested Amount and the Trustee shall withdraw from the Excess Funding Account
and pay to the Seller or allocate to one or more other Series, on the
immediately succeeding Distribution Date, an amount equal to the amount of such
increase in the Invested Amount. To the extent that the Invested Amount is
increased by any payment to the Seller or any allocation to one or more other
Series, the Seller's Interest or such other Series' invested amount, as
applicable, shall be reduced by the amount of such payment. In addition, any
increase in the Invested Amount is subject to the condition that after giving
effect to such increase the Unconcentrated Pool Balance equals or exceeds the
Required Participation Amount. In connection with the foregoing, the Seller
shall endeavor (taking into account any seasonality experienced in the Accounts
in the Trust) to minimize the amounts on deposit, from time to time, in the
Excess Funding Account.
The Seller may elect to make withdrawals from the Excess Funding
Account and the excess funding accounts or similar arrangements for other Series
on a daily or weekly basis during a Collection Period by giving the Trustee
notice of such election at least two Business Days and no more than five
Business Days prior to the commencement of such daily or weekly withdrawals. If
such election is made, then deposits into the Excess Funding Account and excess
funding accounts or similar arrangements for other Series shall be made on a
similar basis for the related Collection Period. If such election is for
withdrawals on a daily basis, then such withdrawals shall be made on each
Business Day and the Unconcentrated Pool Balance to be referenced shall be the
Unconcentrated Pool Balance on the next preceding Business Day. If such election
is for withdrawals on a weekly basis, then such withdrawals shall be made on
each Wednesday (or if such Wednesday is not a Business Day, then on the Business
Day next succeeding such Wednesday) and the Unconcentrated Pool Balance to be
referenced shall be the Unconcentrated Pool Balance on the preceding Monday.
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(c) In the event that other Series issued by the Trust provide for
excess funding accounts or other arrangements similar to the Excess Funding
Account involving fluctuating levels of investments in Principal Receivables,
(i) the allocation of additional Principal Receivables to increase the Invested
Amount and the invested amounts of such other Series (and the related
withdrawals from the Excess Funding Account and the other excess funding or
similar accounts) shall be based on the proportion that the amount on deposit in
the Excess Funding Account bears to amounts on deposit in the excess funding
accounts (including the Excess Funding Account) of all Series providing for
excess funding accounts or such similar arrangements or to amounts otherwise
similarly available and (ii) the deposit of amounts into the Excess Funding
Account and the excess funding accounts of such other Series shall be pro rata
based on the proportion that the Invested Amount bears to the invested amounts
(including the Invested Amount) of all Series providing for excess funding
accounts or such similar arrangements.
(d) In the event that any other Series is in an amortization period,
early amortization period or accumulation period, the amounts of any withdrawals
from the Excess Funding Account shall be applied first to satisfy in full any
then applicable funding or payment requirements of such Series and second to
make a payment to the Seller. In the event that more than one other Series is in
an amortization period, early amortization period or accumulation period, the
amounts of any withdrawals from the Excess Funding Account shall be allocated
(and, if necessary, reallocated) among such Series as specified in the related
Supplements for such Series, to meet the funding or payment requirements of each
such Series first to satisfy in full all then applicable funding or payment
requirements of each such Series and second to make a payment to the Seller.
SECTION 4.13 Yield Supplement Account. On each Distribution Date prior
to the beginning of the Accumulation Period and prior to the occurrence of an
Early Amortization Event, the Trustee shall deposit Non-Principal Collections
and Investment Proceeds, if any--to the extent available pursuant to Section
4.6(a)(x)--into the Yield Supplement Account in an amount equal to the Yield
Supplement Account Deposit Amount, if any, for that Distribution Date.
If the Class A Monthly Interest, Class B Monthly Interest or Class C
Monthly Interest for any Distribution Date, determined as if the interest rate
were based on LIBOR plus the applicable margin, exceeds the applicable monthly
interest determined on the basis of the related Net Receivables Rate, the
Servicer shall direct the Trustee to withdraw (and the Trustee shall withdraw)
funds from the Yield Supplement Account, to the extent available, and apply
those funds to deposit the amount of such excess into the Interest Funding
Account first, for the benefit of the Class A Certificates, second, for the
benefit of the Class B Certificates, and third, for the benefit of the Class C
Certificates.
Any funds on deposit in the Yield Supplement Account at the beginning
of the Accumulation Period or upon the occurrence of an Early Amortization Event
shall be deposited in the Principal Funding Account.
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ARTICLE V
Distribution and Reports to
Series 2000-2 Certificateholders
SECTION 5.1 Distributions. (a) On each Distribution Date, the Trustee
as paying agent shall distribute to each Series 2000-2 Certificateholder of
record on the preceding Record Date (other than as provided in Section 12.2 of
the Agreement respecting a final distribution) such Series 2000-2
Certificateholder's pro rata share (based on the outstanding principal balances
of the Series 2000-2 Certificates held by such Certificateholder) of the amounts
on deposit in the Series 2000-2 Accounts as is payable to Series 2000-2
Certificateholders on such Distribution Date pursuant to and subject to the
applicable 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 2000-2 Certificateholders
hereunder shall be made by check mailed to each Series 2000-2 Certificateholder
at such Certificateholder's address appearing in the Certificate Register
without presentation or surrender of any Series 2000-2 Certificate or the making
of any notation thereon; provided, however, that with respect to Series 2000-2
Certificates registered in the name of a Depository, such distributions shall be
made to such Depository in immediately available funds.
For so long as any of the Series 2000-2 Certificates are listed on the
Luxembourg Stock Exchange, the Trustee shall notify the Luxembourg Stock
Exchange in the event that any of such Series 2000-2 Certificates listed on the
Luxembourg Stock Exchange do not receive scheduled distributions of interest or
principal on any Distribution Date in accordance with instructions from the
Servicer (which may be standing instructions).
SECTION 5.2 Reports and Statements to Series 2000-2 Certificateholders.
(a) At least two Business Days prior to each Distribution Date, the Servicer
shall provide to the Trustee, the Rating Agencies and, for so long as any Series
2000-2 Certificates are listed on the Luxembourg Stock Exchange, such exchange,
a statement substantially in the form of Exhibit B (a "Distribution Date
Statement"), and on each Distribution Date the Trustee shall forward to each
Series 2000-2 Certificateholder such statement prepared by the Servicer setting
forth certain information relating to the Trust and the Series 2000-2
Certificates.
(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 2000-2 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 2001, the Trustee shall furnish or cause to be furnished to each
Person who at any time during the preceding calendar year was a Series 2000-2
Certificateholder, a statement prepared by the Servicer containing the
information which is required to be contained in the statement to Series
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2000-2 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 2000-2 Certificateholder, together with other information as is
required to be provided by an issuer of indebtedness under the Internal Revenue
Code for the preceding calendar year and such other customary information as is
necessary to enable the Series 2000-2 Certificateholders (or Certificate Owners)
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.
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 2000-2
Certificateholders, be deemed to be an Early Amortization Event solely with
respect to Series 2000-2 (each, an "Additional Early Amortization Event"):
(a) on any Distribution Date, the balance of the Reserve Fund
is less than three and one-half percent (3.5%) of the aggregate
outstanding principal balance of the Series 2000-2 Certificates, in
each case after giving effect to all deposits, withdrawals and
distributions on such Distribution Date; or
(b) any Servicer Default occurs; or
(c) a Class A Carry-over Amount, Class B Carry-over Amount or
Class C Carry-over Amount is outstanding on six consecutive
Distribution Dates (after giving effect to the distributions on each of
those Distribution Dates); or
(d) on any Determination Date, the average of the Monthly
Payment Rates for the three preceding Collection Periods is less than
twenty-five percent (25%) (or a lower percentage if the Rating Agency
Condition has been satisfied with respect to that lower percentage); or
(e) the outstanding principal amount of the Series 2000-2
Certificates is not fully repaid on the Expected Final Payment Date; or
(f) 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 in addition to 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 those Receivables (without deducting therefrom the
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Discount Portion) for such three-month period, exceeds five percent
(5%) on an annualized basis; provided, that the percentage in this
clause (f) may be changed, or any Early Amortization Event relating to
this clause (f) may be waived, at the direction of the Seller and
without the consent of any Series 2000-2 Certificateholder upon the
satisfaction of the Rating Agency Condition; or
(g) the sum of all Eligible Investments and amounts on deposit
in the Excess Funding Account and any excess funding accounts for any
other Series represents more than fifty percent (50%) of the total
assets of the Trust on each of six or more consecutive Determination
Dates, after giving effect to all payments made or to be made on the
Distribution Date next succeeding each such respective Determination
Date; or
(h) the Overconcentration Amount exceeds zero for a period of
five Business Days after any Distribution Date, unless the Rating
Agency Condition shall have been satisfied with respect to the
existence of the Overconcentration Amount.
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 ten percent
(10%) of the initial principal amount of the Series 2000-2 Certificates on the
Closing Date or less, the Seller shall have the option, subject to the condition
set forth in paragraph (c), to purchase the entire, but not less than the
entire, Series 2000-2 Certificateholders' Interest, at a purchase price equal to
the Reassignment Amount for such Distribution Date.
(b) The Seller shall give the Servicer and the Trustee at least 10
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).
(c) If at the time the Seller exercises its purchase option hereunder
the Seller's unsecured debt is unrated or has a rating lower than the lowest
investment grade rating of any Rating Agency, the Seller shall deliver to the
Trustee on such Distribution Date an Opinion of Counsel (which must be an
independent outside counsel) to the effect that, in reliance on certain
certificates to the effect that the Series 2000-2 Certificateholders' Interest
purchased by the Seller constitutes fair value for the consideration paid
therefor and as to the Seller is solvent, the purchase of the Series 2000-2
Certificateholders' Interest would not be considered a fraudulent conveyance
under applicable law.
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So long as any Series 2000-2 Certificates are listed on the Luxembourg
Stock Exchange and the rules of such exchange so require, the Trustee shall
cause notice of any such optional repurchase under this Section to be published
in the Authorized European Newspaper at least one Business Day prior to the
related Distribution Date and shall cause notice to be given by first-class
mail, postage prepaid, mailed not less than ten Business Days prior to the
applicable repurchase date, to each Holder of Class A and Class B Certificates
at the Holder's address in the register maintained by the Trustee under the
Pooling and Servicing Agreement, and shall inform the Luxembourg Stock Exchange
thereof one Business Day prior thereto in accordance with instructions from the
Servicer (which may be standing instructions).
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. (a) The amount to be paid
by the Seller to the Collection Account with respect to Series 2000-2 in
connection with a purchase of the Certificateholders' Interest 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, deposit an amount equal to the Invested Amount on such
Distribution Date into the Principal Funding Account, (ii) second, deposit an
amount equal to the amount distributable on such Distribution Date pursuant to
Section 4.7(a)(i) into the Interest Funding Account and (iii) third, pay the
remainder of any Termination Proceeds to the Seller; provided, however, that the
sum of the amounts allocated pursuant to clauses (i) through (iii) shall not
exceed the Reassignment Amount for Series 2000-2.
(c) Notwithstanding anything to the contrary in this Series Supplement
or the Agreement, any Termination Proceeds deposited in the Principal Funding
Account and the Interest Funding Account pursuant to Section 8.1 of this Series
Supplement and all other amounts on deposit therein on the applicable
Distribution Date shall be distributed in full to the Series 2000-2
Certificateholders on such date in the following order of priority:
(i) first to Class A Certificateholders, in an amount equal to
the sum of (x) the Class A Monthly Interest for the current
Distribution Date and, without duplication, any unpaid Class A Monthly
Interest for any previous Distribution Date, (y) to the extent
permitted by applicable law, any Class A Additional Interest for the
current Distribution
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<PAGE>
Date and, without duplication, any unpaid Class A Additional Interest
for any previous Distribution Date, and (z) the Class A Invested
Amount;
(ii) second to Class B Certificateholders, in an amount equal
to the sum of (x) the Class B Monthly Interest for the current
Distribution Date and, without duplication, any unpaid Class B Monthly
Interest for any previous Distribution Date, (y) to the extent
permitted by applicable law, any Class B Additional Interest for the
current Distribution Date and, without duplication, any unpaid Class B
Additional Interest for any previous Distribution Date, and (z) the
Class B Invested Amount; and
(iii) third to Class C Certificateholders, in an amount equal
to the sum of (x) the Class C Monthly Interest for the current
Distribution Date and, without duplication, any unpaid Class C Monthly
Interest for any previous Distribution Date, (y) to the extent
permitted by applicable law, any Class C Additional Interest for the
current Distribution Date and, without duplication, any unpaid Class C
Additional Interest for any previous Distribution Date and (z) the
Class C Invested Amount.
No Class A Carry-over Amount, Class B Carry-over Amount, Class C
Carry-over Amount, Class A Carry-over Amount Additional Interest, Class B
Carry-over Amount Additional Interest or Class C Carry-over Amount Additional
Interest will be paid as part of this distribution.
Any remaining funds shall be paid to the Seller.
Any distribution made pursuant to paragraph (b) above and this
paragraph (c) shall be deemed to be a final distribution pursuant to Section
12.2 of the Agreement with respect to Series 2000-2.
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 (after
giving effect to any deposits and distributions otherwise to be made on such
Distribution Date) (x) deduct an amount equal to the amount distributable on
such Distribution Date pursuant to Section 4.7(a)(ii) from the Series 2000-2
Allocation Percentage of the Insolvency Proceeds and deposit such amount in the
Principal Funding Account, (y) deduct an amount equal to the amount
distributable on such Distribution Date pursuant to Section 4.7(a)(i) from the
Series 2000-2 Allocation Percentage of the Insolvency Proceeds, and deposit such
amount in the Interest Funding Account, and (z) allocate the remainder of the
Series 2000-2 Allocation Percentage of the Insolvency Proceeds to the Seller's
Interest and release the same to the Seller on such Distribution Date.
(b) 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 to the
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<PAGE>
Series 2000-2 Certificateholders 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 2000-2.
ARTICLE IX
Miscellaneous Provisions
SECTION 9.1 Securities Law Filings. The Seller shall cause the Class A
and Class B Certificates to be registered under the Securities Exchange Act of
1934, as amended, to the extent required to do so under applicable law.
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 Limitation of Class C Certificates. Each purchaser of a
Class C Certificate (other than Deutsche FRLP) (each, the "Purchaser") hereby
represents and warrants to the Trustee and Deutsche FRLP, and hereby agrees with
the Trustee and Deutsche FRLP, and the Purchaser hereby acknowledges, as
follows:
(1) The Class C Certificates have not been and will not be
registered under the Securities Act or the securities laws of any
jurisdiction. Consequently, the Class C Certificates are not
transferable other than pursuant to an exemption from the registration
requirements of the Securities Act and satisfaction of certain
provisions of this Series Supplement.
(2) The Purchaser is a "qualified institutional buyer" ("QIB")
within the meaning of Rule 144A under the Securities Act ("Rule 144A")
and is purchasing for its own account (and not for the account of
others) or as a fiduciary or agent for others (which others also are
QIBs and have executed a letter substantially in the form of Exhibit C
to this Series Supplement and have delivered a copy of such letter to
Deutsche FRLP and the Trustee). The Purchaser is aware that it (or any
account for which it is
35
<PAGE>
purchasing) may be required to bear the economic risk of an investment
in the Class C Certificates for an indefinite period, and it (or such
account) is able to bear such risk for an indefinite period.
(3) No sale, pledge or other transfer of any Class C
Certificate may be made by any Person unless (a) either (i) such sale,
pledge or other transfer is made to Deutsche FRLP, or (ii) so long as
the Class C Certificates are eligible for resale pursuant to Rule 144A
under the Securities Act, such sale, pledge or other transfer is made
to a Person whom the transferor reasonably believes after due inquiry
is a QIB acting for its own account (and not for the account of others)
or as a fiduciary or agent for others (which others also are QIBs) to
whom notice is given that the sale, pledge or transfer is being made in
reliance on Rule 144A.
(4) The Class C Certificates may not be acquired by or for the
account of (i) an "employee benefit plan" (as defined in section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), that is subject to the provisions of Title I of ERISA, (ii)
a plan described in Section 4975(e)(1) of the Code or (iii) any entity
whose underlying assets include plan assets by reason of a plan's
investment in the entity. By accepting and holding a Class C
Certificate, the holder thereof shall be deemed to have represented and
warranted that it is not within any of the categories described in the
preceding sentence.
(5) The Purchaser acknowledges that it has been afforded an
opportunity to request from Deutsche FRLP, the Servicer and Deutsche
Bank Securities Inc. (the "Initial Purchaser"), and has received and
reviewed, all information which it has deemed necessary in connection
with its decision to purchase the Class C Certificates. The Purchaser
acknowledges that none of Deutsche FRLP, the Servicer, the Initial
Purchaser nor any of their respective affiliates or any Person
representing any of them has made any representation to it with respect
to any information relating to the offering or sale of the Class C
Certificates, other than the information contained in the private
placement memorandum for the Class C Certificates, a copy of which has
been delivered to it.
(6) The Purchaser understands that all information furnished
to it by Deutsche FRLP, the Servicer or the Initial Purchaser or
representatives of Deutsche FRLP, the Servicer or the Initial Purchaser
in connection with its evaluation of an investment in the Class C
Certificates was provided to it on a confidential basis and it agrees
not to disclose such information, in whole or in part, to any other
Person.
(7) The Purchaser further represents and warrants to Deutsche
FRLP and the Trustee that the Purchaser (i) is properly classified as a
"corporation" as described in Section 7701(a)(3) of the Code which is
created or organized under the laws of the United States, any State
thereof or the District of Columbia, (ii) is not an S corporation as
described in Section 1361 of the Code and (iii) will not knowingly take
any action which will cause it not to be so classified.
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<PAGE>
(8) The Purchaser confirms that is has neither acquired nor
will it sell, trade or transfer any interest in any Class C Certificate
or cause an interest in any Class C Certificate to be marketed on or
through (i) an "established securities market" within the meaning of
Section 7704(b)(1) of the Code and any proposed, temporary or final
treasury regulation thereunder, including, without limitation, an
over-the-counter market or an interdealer quotation system that
regularly disseminates firm buy or sell quotations or (ii) "secondary
market" or "substantial equivalent thereof" within the meaning of
Section 7704(b)(2) of the Code and any proposed, temporary or final
treasury regulation thereunder, including a market wherein interests in
the Class C Certificates are regularly quoted by any person making a
market in those interests and a market wherein any person regularly
makes available bid or offer quotes with respect to interests in the
Class C Certificates and stands ready to effect buy or sell
transactions at the quoted prices for itself or on behalf of others.
Any purported transfer, assignment or other conveyance of any Class C
Certificate in contravention of the foregoing covenant will be null and
void ab initio and the purported transferor will continue to be treated
as the holder of such Class C Certificate and the purported transferee
will not be recognized as a Class C Certificateholder by Deutsche FRLP,
the Servicer or the Trustee.
(9) Notwithstanding the foregoing, at no time shall the
aggregate number of Private Holders exceed 100. Any purported transfer,
assignment or other conveyance (including any participation) of the
Class C Certificates in contravention of the immediately preceding
sentence will be null and void ab initio and the purported transferor
will continue to be treated as the holder of those Class C Certificates
and the purported transferee will not be recognized as a Class C
Certificateholder by Deutsche FRLP, the Servicer or the Trustee.
"Private Holder" means each holder of a right to receive interest or
principal in respect of any direct or indirect interest in the Trust,
including any financial instrument or contract the value of which is
determined in whole or part by reference to the Trust (including the
Trust's assets, income of the Trust or distributions made by the
Trust), excluding any interest in the Trust represented by any series
or class of certificates or any other interests as to which the Trustee
has received an opinion of counsel to the effect that that series,
class or other interest will be treated as debt or otherwise not as an
equity interest in either the Trust or the Receivables for federal
income tax purposes (unless that interest is convertible or
exchangeable into an interest in the Trust or the Trust's income or
that interest provides for payment of equivalent value).
Notwithstanding the immediately preceding sentence, "Private Holder"
will also include any other person that Deutsche FRLP determines is a
"partner" within the meaning of Section 1.7704-1(h)(1)(ii) of the U.S.
Treasury Regulations (including by reason of Section 1.7704-1(h)(3)) or
any successor provision of law. Any person holding more than one
interest in the Trust, each of which separately would cause that person
to be a Private Holder, will be treated as a single Private Holder.
Each holder of an interest in a Private Holder which is a partnership,
S corporation or a grantor trust under the Code will be treated as a
Private Holder unless excepted with the consent of Deutsche FRLP (which
consent will be based on an opinion of counsel generally to the effect
that the action taken pursuant to the consent will not cause the Trust
to become a publicly traded
37
<PAGE>
partnership treated as a corporation). Notwithstanding anything to the
contrary herein, each Class C Certificateholder, and each holder of any
Class of any Series if with respect to such Class no opinion is
delivered to the effect that the Certificates of such Class will be
treated as debt for federal income tax purposes, will be considered to
be a Private Holder.
(10) The Class C Certificates will be issued in denominations
of $1,000,000 and integral multiples of $100,000 in excess thereof. No
Class C Certificate may be subdivided upon transfer or exchange in a
manner so that the resulting Class C Certificate if it had been sold in
the original offering would have had an initial offering price of less
than $1,000,000 and any purported transfer, assignment or conveyance of
a Class C Certificate in contravention of the immediately preceding
sentence will be void ab initio and the purported transferor will
continue to be treated as the owner of that Class C Certificate for all
purposes.
(11) Without limiting the foregoing, no transfer, pledge,
assignment or conveyance may be made to any one Person for Class C
Certificates with a face amount of less than $1,000,000 and, in the
case of any Person acting on behalf of one or more third parties (other
than a bank (as defined in Section 3(a)(2) of the Securities Act)
acting in its fiduciary capacity), for Class C Certificates with a face
amount of less than that amount for each of those third parties. Any
purported transfer, assignment or conveyance in contravention of the
immediately preceding sentence will be void ab initio and the purported
transferor will continue to be treated as the owner of the Class C
Certificates for all purposes. Neither Deutsche FRLP nor the Trustee
will be obligated to register the Class C Certificates under the
Securities Act, qualify the Class C Certificates under the securities
laws of any state or provide registration rights to any purchaser or
holder thereof.
(12) No transfer, assignment or conveyance of a Class C
Certificate will be effective unless Deutsche FRLP and the Trustee
shall have received a letter, substantially in the form of Exhibit C to
this Series Supplement, from the transferee, assignee or recipient of
the conveyance.
(13) The Class C Certificates will bear legends substantially
to the effect of the matters contemplated by paragraphs (1) through
(12) above, unless Deutsche FRLP determines otherwise in accordance
with applicable law.
SECTION 9.6 The Trustee; Paying Agent. (a) The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Series Supplement, for or in respect of the calculation or
verification of any of the amounts, allocation or distributions set forth in
Article IV and Article VIII or for or in respect of the recitals contained
herein, all of which recitals are made solely by the Seller.
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(b) The Trustee is hereby directed to appoint Kredietbank S.A.
Luxembourgeoise in Luxembourg as a Paying Agent for the distribution of
principal of and interest on the Series 2000-2 Certificates; provided, that
unless Kredietbank S.A. Luxembourgeoise shall be rated "P-1" by Moody's and
"A-1" by S&P, it may not hold funds pursuant to this Series Supplement
overnight.
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.
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 three and
one-half percent (3.5%) of the aggregate initial principal balance of the Series
2000-2 Certificates.
SECTION 9.9 Severability; Certificate Rate Limitation. (a) If any one
or more of the covenants, agreements, provisions or terms of this Series
Supplement or any Series 2000-2 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 2000-2 Certificate.
(b) Notwithstanding anything in this Series Supplement, the Agreement,
or any Series 2000-2 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 any Series 2000-2 Certificate 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 2000-2
Certificateholders in accordance with the terms of this Series Supplement, the
Agreement or any Series 2000-2 Certificate, then such Certificate Rate, together
with all Charges payable in respect of the Series 2000-2 Certificate, 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 2000-2
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
2000-2 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 2000-2 Certificateholders.
SECTION 9.10 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 9.11 Certain Matters Relating to Luxembourg Stock Exchange
Listing. (a) So long as any Series 2000-2 Certificates are listed on the
Luxembourg Stock Exchange, on each Distribution Date the Trustee shall notify
the Luxembourg Stock Exchange of the outstanding
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<PAGE>
principal balance of each Class of such Series 2000-2 Certificates after giving
effect to distributions of principal, if any, thereon on such Distribution Date
in accordance with instructions from the Servicer (which may be standing
instructions).
(b) Promptly upon receipt of notice of any qualification, reduction or
withdrawal of the rating assigned to any Class of Certificates listed on the
Luxembourg Stock Exchange, the Trustee shall notify the Luxembourg Stock
Exchange thereof in accordance with instructions from the Servicer (which may be
standing instructions).
(c) Prior to listing on the Luxembourg Stock Exchange, a legal notice
("Notice Legale") relating to the issuance of the Certificates, together with
certain documents relating to the Seller and the Trust, shall be deposited by
the Trustee (at the written direction of the Seller or the Servicer) with the
Chief Registrar of the District of Luxembourg ("Greffier en Chef du Tribunal
d'Arrondissement de et a Luxembourg"), where copies thereof may be obtained,
free of charge, upon request.
As long as the Class A or Class B Certificates are outstanding, the
Servicer shall cause copies of the Pooling and Servicing Agreement and this
Agreement to be available for inspection and the Servicer's statement prepared
for each Distribution Date to be obtainable at the office of Kredietbank S.A.
Luxembourgeoise in the City of Luxembourg, where copies thereof may be obtained
upon request.
[SIGNATURES FOLLOW]
40
<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 CLASS [ ] CERTIFICATE
Initial
REGISTERED Principal Balance: */
$____________________
Certificate No. R-
CUSIP NO.
[Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
[FOR CLASS A AND CLASS B CERTIFICATES, INSERT:
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (I) AN "EMPLOYEE
BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA")), THAT IS SUBJECT TO THE PROVISIONS
OF TITLE I OF ERISA, (II) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE OR
(III) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A
PLAN'S INVESTMENT IN THE ENTITY. BY ACCEPTING AND HOLDING THIS CERTIFICATE, THE
HOLDER THEREOF SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT
WITHIN ANY OF THE CATEGORIES DESCRIBED IN THE PRECEDING SENTENCE.
[FOR CLASS C CERTIFICATES INSERT:
THE PURCHASER OF THIS CERTIFICATE (THE "PURCHASER") HEREBY REPRESENTS AND
WARRANTS TO THE TRUSTEE AND DEUTSCHE FRLP, AND HEREBY AGREES WITH THE TRUSTEE
AND DEUTSCHE FRLP, AND THE PURCHASER HEREBY ACKNOWLEDGES, AS FOLLOWS:
(1) THE CLASS C CERTIFICATES HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OR THE SECURITIES LAWS OF ANY
JURISDICTION. CONSEQUENTLY, THE CLASS C CERTIFICATES ARE NOT
TRANSFERABLE OTHER THAN PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND SATISFACTION OF CERTAIN
PROVISIONS OF THE SERIES SUPPLEMENT.
- --------
*/ Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
1
<PAGE>
(2) THE PURCHASER IS A "QUALIFIED INSTITUTIONAL BUYER" ("QIB")
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")
AND IS PURCHASING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF
OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE
QIBS AND HAVE EXECUTED A LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C
TO THE SERIES SUPPLEMENT AND HAVE DELIVERED A COPY OF SUCH LETTER TO
DEUTSCHE FRLP AND THE TRUSTEE). THE PURCHASER IS AWARE THAT IT (OR ANY
ACCOUNT FOR WHICH IT IS PURCHASING) MAY BE REQUIRED TO BEAR THE
ECONOMIC RISK OF AN INVESTMENT IN THE CLASS C CERTIFICATES FOR AN
INDEFINITE PERIOD, AND IT (OR SUCH ACCOUNT) IS ABLE TO BEAR SUCH RISK
FOR AN INDEFINITE PERIOD.
(3) NO SALE, PLEDGE OR OTHER TRANSFER OF ANY CLASS C
CERTIFICATE MAY BE MADE BY ANY PERSON UNLESS (A) EITHER (I) SUCH SALE,
PLEDGE OR OTHER TRANSFER IS MADE TO DEUTSCHE FRLP, OR (II) SO LONG AS
THE CLASS C CERTIFICATES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT, SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE
TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY
IS A QIB ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS)
OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBS) TO
WHOM NOTICE IS GIVEN THAT THE SALE, PLEDGE OR TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A.
(4) THE CLASS C CERTIFICATES MAY NOT BE ACQUIRED BY OR FOR THE
ACCOUNT OF (I) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3)
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA")), THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (II)
A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE OR (III) ANY ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S
INVESTMENT IN THE ENTITY. BY ACCEPTING AND HOLDING A CLASS C
CERTIFICATE, THE HOLDER THEREOF SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT IT IS NOT WITHIN ANY OF THE CATEGORIES DESCRIBED IN THE
PRECEDING SENTENCE.
(5) THE PURCHASER ACKNOWLEDGES THAT IT HAS BEEN AFFORDED AN
OPPORTUNITY TO REQUEST FROM DEUTSCHE FRLP, THE SERVICER AND DEUTSCHE
BANK SECURITIES INC. (THE "INITIAL PURCHASER"), AND HAS RECEIVED AND
REVIEWED, ALL INFORMATION WHICH IT HAS DEEMED NECESSARY IN CONNECTION
WITH ITS DECISION TO PURCHASE THE CLASS C CERTIFICATES. THE PURCHASER
ACKNOWLEDGES THAT NONE OF DEUTSCHE FRLP, THE SERVICER, THE INITIAL
PURCHASER NOR ANY OF THEIR RESPECTIVE AFFILIATES OR ANY PERSON
REPRESENTING ANY OF THEM HAS
2
<PAGE>
MADE ANY REPRESENTATION TO IT WITH RESPECT TO ANY INFORMATION RELATING
TO THE OFFERING OR SALE OF THE CLASS C CERTIFICATES, OTHER THAN THE
INFORMATION CONTAINED IN THE PRIVATE PLACEMENT MEMORANDUM FOR THE CLASS
C CERTIFICATES, A COPY OF WHICH HAS BEEN DELIVERED TO IT.
(6) THE PURCHASER UNDERSTANDS THAT ALL INFORMATION FURNISHED
TO IT BY DEUTSCHE FRLP, THE SERVICER OR THE INITIAL PURCHASER OR
REPRESENTATIVES OF DEUTSCHE FRLP, THE SERVICER OR THE INITIAL PURCHASER
IN CONNECTION WITH ITS EVALUATION OF AN INVESTMENT IN THE CLASS C
CERTIFICATES WAS PROVIDED TO IT ON A CONFIDENTIAL BASIS AND IT AGREES
NOT TO DISCLOSE SUCH INFORMATION, IN WHOLE OR IN PART, TO ANY OTHER
PERSON.
(7) THE PURCHASER FURTHER REPRESENTS AND WARRANTS TO DEUTSCHE
FRLP AND THE TRUSTEE THAT THE PURCHASER (I) IS PROPERLY CLASSIFIED AS A
"CORPORATION" AS DESCRIBED IN SECTION 7701(a)(3) OF THE CODE WHICH IS
CREATED OR ORGANIZED UNDER THE LAWS OF THE UNITED STATES, ANY STATE
THEREOF OR THE DISTRICT OF COLUMBIA, (II) IS NOT AN S CORPORATION AS
DESCRIBED IN SECTION 1361 OF THE CODE AND (III) WILL NOT KNOWINGLY TAKE
ANY ACTION WHICH WILL CAUSE IT NOT TO BE SO CLASSIFIED.
(8) THE PURCHASER CONFIRMS THAT IS HAS NEITHER ACQUIRED NOR
WILL IT SELL, TRADE OR TRANSFER ANY INTEREST IN ANY CLASS C CERTIFICATE
OR CAUSE AN INTEREST IN ANY CLASS C CERTIFICATE TO BE MARKETED ON OR
THROUGH (I) AN "ESTABLISHED SECURITIES MARKET" WITHIN THE MEANING OF
SECTION 7704(b)(1) OF THE CODE AND ANY PROPOSED, TEMPORARY OR FINAL
TREASURY REGULATION THEREUNDER, INCLUDING, WITHOUT LIMITATION, AN
OVER-THE-COUNTER MARKET OR AN INTERDEALER QUOTATION SYSTEM THAT
REGULARLY DISSEMINATES FIRM BUY OR SELL QUOTATIONS OR (II) "SECONDARY
MARKET" OR "SUBSTANTIAL EQUIVALENT THEREOF" WITHIN THE MEANING OF
SECTION 7704(b)(2) OF THE CODE AND ANY PROPOSED, TEMPORARY OR FINAL
TREASURY REGULATION THEREUNDER, INCLUDING A MARKET WHEREIN INTERESTS IN
THE CLASS C CERTIFICATES ARE REGULARLY QUOTED BY ANY PERSON MAKING A
MARKET IN THOSE INTERESTS AND A MARKET WHEREIN ANY PERSON REGULARLY
MAKES AVAILABLE BID OR OFFER QUOTES WITH RESPECT TO INTERESTS IN THE
CLASS C CERTIFICATES AND STANDS READY TO EFFECT BUY OR SELL
TRANSACTIONS AT THE QUOTED PRICES FOR ITSELF OR ON BEHALF OF OTHERS.
ANY PURPORTED TRANSFER, ASSIGNMENT OR OTHER CONVEYANCE OF ANY CLASS C
CERTIFICATE IN CONTRAVENTION OF THE FOREGOING COVENANT WILL BE NULL AND
VOID AB INITIO AND THE PURPORTED TRANSFEROR WILL CONTINUE TO BE TREATED
AS THE HOLDER
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<PAGE>
OF SUCH CLASS C CERTIFICATE AND THE PURPORTED TRANSFEREE WILL NOT BE
RECOGNIZED AS A CLASS C CERTIFICATEHOLDER BY DEUTSCHE FRLP, THE
SERVICER OR THE TRUSTEE.
(9) NOTWITHSTANDING THE FOREGOING, AT NO TIME SHALL THE
AGGREGATE NUMBER OF PRIVATE HOLDERS EXCEED 100. ANY PURPORTED TRANSFER,
ASSIGNMENT OR OTHER CONVEYANCE (INCLUDING ANY PARTICIPATION) OF THE
CLASS C CERTIFICATES IN CONTRAVENTION OF THE IMMEDIATELY PRECEDING
SENTENCE WILL BE NULL AND VOID AB INITIO AND THE PURPORTED TRANSFEROR
WILL CONTINUE TO BE TREATED AS THE HOLDER OF THOSE CLASS C CERTIFICATES
AND THE PURPORTED TRANSFEREE WILL NOT BE RECOGNIZED AS A CLASS C
CERTIFICATEHOLDER BY DEUTSCHE FRLP, THE SERVICER OR THE TRUSTEE.
"PRIVATE HOLDER" MEANS EACH HOLDER OF A RIGHT TO RECEIVE INTEREST OR
PRINCIPAL IN RESPECT OF ANY DIRECT OR INDIRECT INTEREST IN THE TRUST,
INCLUDING ANY FINANCIAL INSTRUMENT OR CONTRACT THE VALUE OF WHICH IS
DETERMINED IN WHOLE OR PART BY REFERENCE TO THE TRUST (INCLUDING THE
TRUST'S ASSETS, INCOME OF THE TRUST OR DISTRIBUTIONS MADE BY THE
TRUST), EXCLUDING ANY INTEREST IN THE TRUST REPRESENTED BY ANY SERIES
OR CLASS OF CERTIFICATES OR ANY OTHER INTERESTS AS TO WHICH THE TRUSTEE
HAS RECEIVED AN OPINION OF COUNSEL TO THE EFFECT THAT THAT SERIES,
CLASS OR OTHER INTEREST WILL BE TREATED AS DEBT OR OTHERWISE NOT AS AN
EQUITY INTEREST IN EITHER THE TRUST OR THE RECEIVABLES FOR FEDERAL
INCOME TAX PURPOSES (UNLESS THAT INTEREST IS CONVERTIBLE OR
EXCHANGEABLE INTO AN INTEREST IN THE TRUST OR THE TRUST'S INCOME OR
THAT INTEREST PROVIDES FOR PAYMENT OF EQUIVALENT VALUE).
NOTWITHSTANDING THE IMMEDIATELY PRECEDING SENTENCE, "PRIVATE HOLDER"
WILL ALSO INCLUDE ANY OTHER PERSON THAT DEUTSCHE FRLP DETERMINES IS A
"PARTNER" WITHIN THE MEANING OF SECTION 1.7704-1(h)(1)(ii) OF THE U.S.
TREASURY REGULATIONS (INCLUDING BY REASON OF SECTION 1.7704-1(h)(3)) OR
ANY SUCCESSOR PROVISION OF LAW. ANY PERSON HOLDING MORE THAN ONE
INTEREST IN THE TRUST, EACH OF WHICH SEPARATELY WOULD CAUSE THAT PERSON
TO BE A PRIVATE HOLDER, WILL BE TREATED AS A SINGLE PRIVATE HOLDER.
EACH HOLDER OF AN INTEREST IN A PRIVATE HOLDER WHICH IS A PARTNERSHIP,
S CORPORATION OR A GRANTOR TRUST UNDER THE CODE WILL BE TREATED AS A
PRIVATE HOLDER UNLESS EXCEPTED WITH THE CONSENT OF DEUTSCHE FRLP (WHICH
CONSENT WILL BE BASED ON AN OPINION OF COUNSEL GENERALLY TO THE EFFECT
THAT THE ACTION TAKEN PURSUANT TO THE CONSENT WILL NOT CAUSE THE TRUST
TO BECOME A PUBLICLY TRADED PARTNERSHIP TREATED AS A CORPORATION).
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, EACH CLASS C
CERTIFICATEHOLDER, AND EACH HOLDER OF ANY CLASS OF ANY SERIES IF WITH
RESPECT TO SUCH CLASS NO OPINION IS DELIVERED TO THE EFFECT
4
<PAGE>
THAT THE CERTIFICATES OF SUCH CLASS WILL BE TREATED AS DEBT FOR FEDERAL
INCOME TAX PURPOSES, WILL BE CONSIDERED TO BE A PRIVATE HOLDER.
(10) THE CLASS C CERTIFICATES WILL BE ISSUED IN DENOMINATIONS
OF $1,000,000 AND INTEGRAL MULTIPLES OF $100,000 IN EXCESS THEREOF. NO
CLASS C CERTIFICATE MAY BE SUBDIVIDED UPON TRANSFER OR EXCHANGE IN A
MANNER SO THAT THE RESULTING CLASS C CERTIFICATE IF IT HAD BEEN SOLD IN
THE ORIGINAL OFFERING WOULD HAVE HAD AN INITIAL OFFERING PRICE OF LESS
THAN $1,000,000 AND ANY PURPORTED TRANSFER, ASSIGNMENT OR CONVEYANCE OF
A CLASS C CERTIFICATE IN CONTRAVENTION OF THE IMMEDIATELY PRECEDING
SENTENCE WILL BE VOID AB INITIO AND THE PURPORTED TRANSFEROR WILL
CONTINUE TO BE TREATED AS THE OWNER OF THAT CLASS C CERTIFICATE FOR ALL
PURPOSES.
(11) WITHOUT LIMITING THE FOREGOING, NO TRANSFER, PLEDGE,
ASSIGNMENT OR CONVEYANCE MAY BE MADE TO ANY ONE PERSON FOR CLASS C
CERTIFICATES WITH A FACE AMOUNT OF LESS THAN $1,000,000 AND, IN THE
CASE OF ANY PERSON ACTING ON BEHALF OF ONE OR MORE THIRD PARTIES (OTHER
THAN A BANK (AS DEFINED IN SECTION 3(a)(2) OF THE SECURITIES ACT)
ACTING IN ITS FIDUCIARY CAPACITY), FOR CLASS C CERTIFICATES WITH A FACE
AMOUNT OF LESS THAN THAT AMOUNT FOR EACH OF THOSE THIRD PARTIES. ANY
PURPORTED TRANSFER, ASSIGNMENT OR CONVEYANCE IN CONTRAVENTION OF THE
IMMEDIATELY PRECEDING SENTENCE WILL BE VOID AB INITIO AND THE PURPORTED
TRANSFEROR WILL CONTINUE TO BE TREATED AS THE OWNER OF THE CLASS C
CERTIFICATES FOR ALL PURPOSES. NEITHER DEUTSCHE FRLP NOR THE TRUSTEE
WILL BE OBLIGATED TO REGISTER THE CLASS C CERTIFICATES UNDER THE
SECURITIES ACT, QUALIFY THE CLASS C CERTIFICATES UNDER THE SECURITIES
LAWS OF ANY STATE OR PROVIDE REGISTRATION RIGHTS TO ANY PURCHASER OR
HOLDER THEREOF.
(12) NO TRANSFER, ASSIGNMENT OR CONVEYANCE OF A CLASS C
CERTIFICATE WILL BE EFFECTIVE UNLESS DEUTSCHE FRLP AND THE TRUSTEE
SHALL HAVE RECEIVED A LETTER, SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO
THE SERIES SUPPLEMENT, FROM THE TRANSFEREE, ASSIGNEE OR RECIPIENT OF
THE CONVEYANCE.]
5
<PAGE>
$___________ FLOATING RATE ASSET BACKED CERTIFICATES,
SERIES 2000-2, CLASS [ ]
evidencing a fractional undivided interest in certain
assets of the
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST.
This certificate ("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 "Class [ ] 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 an Amended and Restated Pooling and Servicing Agreement (the "P&S"),
dated as of April 1, 2000, as supplemented by the Series 2000-2 Supplement dated
as of April 1, 2000 (the "Series 2000-2 Supplement" or the "Series Supplement"),
among Deutsche FRLP, as Seller, DFS, as Servicer, and The Chase Manhattan Bank,
as trustee (the "Trustee"). The P&S and the Series 2000-2 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 Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
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.
This 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 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 herein, this
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 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.
6
<PAGE>
The Seller has entered into the Pooling and Servicing Agreement and the
Series 2000-2 Certificates have been (or shall be) issued with the intention
that the Series 2000-2 Certificates shall qualify as indebtedness of Deutsche
FRLP 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. The Seller, each
Beneficiary and each Certificateholder and Certificate Owner, by the acceptance
of its Certificate or Book-Entry Certificate, as applicable, agrees to treat
such Series 2000-2 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.
[FOR CLASS B AND CLASS C CERTIFICATES, INSERT: THIS CERTIFICATE IS
SUBORDINATE TO THE CLASS A [AND CLASS B] CERTIFICATES IN ACCORDANCE
WITH THE SERIES SUPPLEMENT].
7
<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:
S-1
<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:
S-2
<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 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, and the Pool
Balance as of the end of such Collection Period;
(b) The Floating Allocation Percentage, the Principal Allocation Percentage
and the Series 2000-2 Allocation Percentage relating to such Collection Period;
(c) The total amount, if any, distributed on the Series 2000-2
Certificates;
(d) The amount of such distribution allocable to principal on the Class A
Certificates, the Class B Certificates and the Class C Certificates;
(e) The amount of such distribution allocable to interest on the Class A
Certificates, the Class B Certificates and the Class C Certificates;
(f) The Investor Default Amount for the applicable Distribution Date;
(g) The Deficiency Amount, if any, for the preceding Collection Period;
(h) The amount of the Class A, Class B and Class C Investor Charge-Offs and
the amounts of reimbursements thereof for the preceding Collection Period;
(i) The amount of the Monthly Servicing Fee for the preceding Collection
Period;
(j) The Class A Invested Amount, the Class B Invested Amount, the Class C
Invested Amount, the Excess Funding Account balance and the outstanding
principal balance of the Class A, Class B and Class C Certificates for such
Distribution Date (after giving effect to all distributions which shall occur on
such Distribution Date);
(k) The Controlled Deposit Amount, if any;
(l) The Class A Pool Factor, Class B Pool Factor and Class C Pool Factor;
(m) LIBOR and the applicable Net Receivables Rate for the next Interest
Period;
(n) The Reserve Fund balance with respect to the current Determination
Date;
1
<PAGE>
(o) The Principal Funding Account balance, the Interest Funding Account
balance, he Yield Supplement Account balance and the Collection Account balance
with respect to the current Distribution Date;
(p) The Servicer Advance, if any, for the current Distribution Date and
reimbursement of any Servicer Advance;
(q) Any elective or "deemed" waiver of the Monthly Servicing Fee for the
current Distribution Date;
(r) If a Dealer Overconcentration exists, (i) the Unconcentrated Pool
Balance, (ii) the aggregate amount of such Dealer Overconcentration, (iii) the
applicable Unconcentrated Percentage and Overconcentrated Percentage, and (iv)
the portion of Collections, Miscellaneous Payments and the Defaulted Amount
allocated to the Dealer Overconcentration Series and other Series;
(s) the Class A Monthly Interest;
(t) the Class B Monthly Interest;
(u) the Class C Monthly Interest;
(v) the Class A Additional Interest;
(w) the Class B Additional Interest;
(x) the Class C Additional Interest;
(y) the Certificateholders' Monthly Servicing Fee;
(z) the Reserve Fund Deposit Amount;
(aa) the Investor Default Amount;
(bb) the Class A Carry-over Amount;
(cc) the Class B Carry-over Amount;
(dd) the Class C Carry-over Amount;
(ee) the Yield Supplement Account Deposit Amount;
(ff) the amount calculated pursuant to Section 4.6(b);
2
<PAGE>
(gg) the amount calculated pursuant to Section 4.7(a)(i);
(hh) the amount calculated pursuant to Section 4.8;
(ii) the amount calculated pursuant to Section 4.10; and
(jj) Miscellaneous Payments, including Adjustment Payments, Transfer
Deposit Amounts and Unallocated Principal Collections.
3
<PAGE>
EXHIBIT C
FORM OF REPRESENTATION LETTER
, 2000
--------------------
The Chase Manhattan Bank, as Trustee
450 West 33rd St., 14th Floor
New York, NY 10001
Deutsche Floorplan Receivables, L.P.
655 Maryville Centre Drive
St. Louis, MO 63141
Re: Distribution Financial Services
Floorplan Master Trust, Series 2000-2, Class C Certificates
Ladies and Gentlemen:
This letter is being delivered by the undersigned (the "Purchaser")
pursuant to Section 9.5 of the Series 2000-2 Supplement dated as of April 1,
2000 (as amended, amended and restated or otherwise modified from time to time,
the "Supplement") among Deutsche Floorplan Receivables, L.P., as Seller
("Deutsche FRLP"), Deutsche Financial Services Corporation, as Servicer, and The
Chase Manhattan Bank, as Trustee, in connection with the Purchaser's acquisition
of a Class C Certificate. Capitalized terms defined in (or by reference in) the
Supplement and used herein without definition shall have the meanings defined in
(or by reference in) the Supplement. The Purchaser hereby represents and
warrants to the Trustee and Deutsche FRLP, and hereby agrees with the Trustee
and Deutsche FRLP, and the Purchaser hereby acknowledges, as follows:
(1) The Class C Certificates have not been and will not be
registered under the Securities Act or the securities laws of any
jurisdiction. Consequently, the Class C Certificates are not
transferable other than pursuant to an exemption from the registration
requirements of the Securities Act and satisfaction of certain
provisions of the Supplement.
(2) The Purchaser is a "qualified institutional buyer" ("QIB")
within the meaning of Rule 144A under the Securities Act ("Rule 144A")
and is purchasing for its own account (and not for the account of
others) or as a fiduciary or agent for others
1
<PAGE>
(which others also are QIBs and have executed a letter substantially in
the form of this letter and have delivered a copy of such letter to
Deutsche FRLP and the Trustee). The Purchaser is aware that it (or any
account for which it is purchasing) may be required to bear the
economic risk of an investment in the Class C Certificates for an
indefinite period, and it (or such account) is able to bear such risk
for an indefinite period.
(3) No sale, pledge or other transfer of any Class C
Certificate may be made by any Person unless (a) either (i) such sale,
pledge or other transfer is made to Deutsche FRLP, or (ii) so long as
the Class C Certificates are eligible for resale pursuant to Rule 144A
under the Securities Act, such sale, pledge or other transfer is made
to a Person whom the transferor reasonably believes after due inquiry
is a QIB acting for its own account (and not for the account of others)
or as a fiduciary or agent for others (which others also are QIBs) to
whom notice is given that the sale, pledge or transfer is being made in
reliance on Rule 144A.
(4) The Class C Certificates may not be acquired by or for the
account of (i) an "employee benefit plan" (as defined in section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), that is subject to the provisions of Title I of ERISA, (ii)
a plan described in Section 4975(e)(1) of the Code or (iii) any entity
whose underlying assets include plan assets by reason of a plan's
investment in the entity. By accepting and holding a Class C
Certificate, the holder thereof shall be deemed to have represented and
warranted that it is not within any of the categories described in the
preceding sentence.
(5) The Purchaser acknowledges that it has been afforded an
opportunity to request from Deutsche FRLP, the Servicer and Deutsche
Bank Securities Inc. (the "Initial Purchaser"), and has received and
reviewed, all information which it has deemed necessary in connection
with its decision to purchase the Class C Certificates. The Purchaser
acknowledges that none of Deutsche FRLP, the Servicer, the Initial
Purchaser nor any of their respective affiliates or any Person
representing any of them has made any representation to it with respect
to any information relating to the offering or sale of the Class C
Certificates, other than the information contained in the private
placement memorandum for the Class C Certificates, a copy of which has
been delivered to it.
(6) The Purchaser understands that all information furnished
to it by Deutsche FRLP, the Servicer or the Initial Purchaser or
representatives of Deutsche FRLP, the Servicer or the Initial Purchaser
in connection with its evaluation of an investment in the Class C
Certificates was provided to it on a confidential basis and it agrees
not to disclose such information, in whole or in part, to any other
Person.
(7) The Purchaser further represents and warrants to Deutsche
FRLP and the Trustee that the Purchaser (i) is properly classified as a
"corporation" as described in
2
<PAGE>
Section 7701(a)(3) of the Code which is created or organized under the
laws of the United States, any State thereof or the District of
Columbia, (ii) is not an S corporation as described in Section 1361 of
the Code and (iii) will not knowingly take any action which will cause
it not to be so classified.
(8) The Purchaser confirms that is has neither acquired nor
will it sell, trade or transfer any interest in any Class C Certificate
or cause an interest in any Class C Certificate to be marketed on or
through (i) an "established securities market" within the meaning of
Section 7704(b)(1) of the Code and any proposed, temporary or final
treasury regulation thereunder, including, without limitation, an
over-the-counter market or an interdealer quotation system that
regularly disseminates firm buy or sell quotations or (ii) "secondary
market" or "substantial equivalent thereof" within the meaning of
Section 7704(b)(2) of the Code and any proposed, temporary or final
treasury regulation thereunder, including a market wherein interests in
the Class C Certificates are regularly quoted by any person making a
market in those interests and a market wherein any person regularly
makes available bid or offer quotes with respect to interests in the
Class C Certificates and stands ready to effect buy or sell
transactions at the quoted prices for itself or on behalf of others.
Any purported transfer, assignment or other conveyance of any Class C
Certificate in contravention of the foregoing covenant will be null and
void ab initio and the purported transferor will continue to be treated
as the holder of such Class C Certificate and the purported transferee
will not be recognized as a Class C Certificateholder by Deutsche FRLP,
the Servicer or the Trustee.
(9) Notwithstanding the foregoing, at no time shall the
aggregate number of Private Holders exceed 100. Any purported transfer,
assignment or other conveyance (including any participation) of the
Class C Certificates in contravention of the immediately preceding
sentence will be null and void ab initio and the purported transferor
will continue to be treated as the holder of those Class C Certificates
and the purported transferee will not be recognized as a Class C
Certificateholder by Deutsche FRLP, the Servicer or the Trustee.
"Private Holder" means each holder of a right to receive interest or
principal in respect of any direct or indirect interest in the Trust,
including any financial instrument or contract the value of which is
determined in whole or part by reference to the Trust (including the
Trust's assets, income of the Trust or distributions made by the
Trust), excluding any interest in the Trust represented by any series
or class of certificates or any other interests as to which the Trustee
has received an opinion of counsel to the effect that that series,
class or other interest will be treated as debt or otherwise not as an
equity interest in either the Trust or the Receivables for federal
income tax purposes (unless that interest is convertible or
exchangeable into an interest in the Trust or the Trust's income or
that interest provides for payment of equivalent value).
Notwithstanding the immediately preceding sentence, "Private Holder"
will also include any other person that Deutsche FRLP determines is a
"partner" within the meaning of Section 1.7704-1(h)(1)(ii) of the U.S.
Treasury Regulations (including by reason of Section 1.7704-1(h)(3)) or
any successor
3
<PAGE>
provision of law. Any person holding more than one interest in the
Trust, each of which separately would cause that person to be a
Private Holder, will be treated as a single Private Holder. Each
holder of an interest in a Private Holder which is a partnership, S
corporation or a grantor trust under the Code will be treated as a
Private Holder unless excepted with the consent of Deutsche FRLP
(which consent will be based on an opinion of counsel generally to the
effect that the action taken pursuant to the consent will not cause
the Trust to become a publicly traded partnership treated as a
corporation). Notwithstanding anything to the contrary herein, each
Class C Certificateholder, and each holder of any Class of any Series
if with respect to such Class no opinion is delivered to the effect
that the Certificates of such Class will be treated as debt for
federal income tax purposes, will be considered to be a Private
Holder.
(10) The Class C Certificates will be issued in denominations
of $1,000,000 and integral multiples of $100,000 in excess thereof. No
Class C Certificate may be subdivided upon transfer or exchange in a
manner so that the resulting Class C Certificate if it had been sold in
the original offering would have had an initial offering price of less
than $1,000,000 and any purported transfer, assignment or conveyance of
a Class C Certificate in contravention of the immediately preceding
sentence will be void ab initio and the purported transferor will
continue to be treated as the owner of that Class C Certificate for all
purposes.
(11) Without limiting the foregoing, no transfer, pledge,
assignment or conveyance may be made to any one Person for Class C
Certificates with a face amount of less than $1,000,000 and, in the
case of any Person acting on behalf of one or more third parties (other
than a bank (as defined in Section 3(a)(2) of the Securities Act)
acting in its fiduciary capacity), for Class C Certificates with a face
amount of less than that amount for each of those third parties. Any
purported transfer, assignment or conveyance in contravention of the
immediately preceding sentence will be void ab initio and the purported
transferor will continue to be treated as the owner of the Class C
Certificates for all purposes. Neither Deutsche FRLP nor the Trustee
will be obligated to register the Class C Certificates under the
Securities Act, qualify the Class C Certificates under the securities
laws of any state or provide registration rights to any purchaser or
holder thereof.
(12) No transfer, assignment or conveyance of a Class C
Certificate will be effective unless Deutsche FRLP and the Trustee
shall have received a letter, substantially in the form of this letter,
from the transferee, assignee or recipient of the conveyance.
(13) The Class C Certificates will bear legends substantially
to the effect of the matters contemplated by paragraphs (1) through
(12) above, unless Deutsche FRLP determines otherwise in accordance
with applicable law.
4
<PAGE>
(14) This letter has been duly executed and delivered by the
Purchaser and constitutes the legal, valid and binding obligation of
the Purchaser, enforceable against the Purchaser in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable
principles affecting the enforcement of creditors' rights generally
and general principles of equity.
IN WITNESS WHEREOF, the Purchaser has signed this letter as of the date
first above written.
[NAME OF PURCHASER]
By:____________________________________
Name:
Title:
<PAGE>
SCHEDULE 1
Name of Series
2000-2 Account Account No.
- -------------- -----------
Interest Funding Account 507-942-728
Principal Funding Account 507-942-736
Excess Funding Account 507-942-744
Reserve Fund 507-942-701
Yield Supplement Account 507-942-752
All of the foregoing accounts are maintained at the Trustee.
<PAGE>
SCHEDULE 2
Initial Principal Amounts of the Series 2000-2 Certificates
-----------------------------------------------------------
Class Initial Principal Amount
- ----- ------------------------
Class A $477,500,000
Class B $15,000,000
Class C $7,500,000
