Exhibit 10.4
DFS/GANIS TRANSFER AGREEMENT
between
DEUTSCHE FINANCIAL SERVICES CORPORATION
and
GANIS CREDIT CORPORATION
Dated as of March 1, 1999
TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Definitions.................................................1
SECTION 1.02. Other Definitional Provisions...............................1
ARTICLE II
Contribution of Receivables
SECTION 2.01. Contribution................................................2
SECTION 2.02. Intent of the Parties.......................................3
ARTICLE III
The Receivables
SECTION 3.01. Representations and Warranties as to Receivables............4
ARTICLE IV
DFS
SECTION 4.01. Representations of DFS.....................................10
SECTION 4.02. Corporate Existence........................................12
SECTION 4.03. Liability of DFS ..........................................12
SECTION 4.04. Indemnification............................................12
SECTION 4.05. Merger or Consolidation of, or Assumption of the
Obligations of, DFS.................................12
SECTION 4.06. Limitation on Liability of DFS and Others..................13
ARTICLE V
Miscellaneous
SECTION 5.01. Amendment..................................................13
SECTION 5.02. Protection of Title; Change of Name, Identity, Corporate
Structure or Location, Etc..........................13
SECTION 5.03. Notices....................................................14
SECTION 5.04. Assignment.................................................15
SECTION 5.05. Limitations on Rights of Others............................15
SECTION 5.06. Severability...............................................15
SECTION 5.07. Separate Counterparts......................................15
i
SECTION 5.08. Headings...................................................15
SECTION 5.09. Governing Law..............................................15
SECTION 5.10. Nonpetition Covenants......................................16
SECTION 5.11. Waiver.....................................................16
SECTION 5.12. Separate Corporate Existence...............................16
SECTION 5.13. Submission to Jurisdiction.................................16
SECTION 5.13 Submission to Jurisdiction.................................16
ii
DFS/GANIS TRANSFER AGREEMENT dated as of March 1, 1999 (this
"Agreement") between DEUTSCHE FINANCIAL SERVICES CORPORATION, a Nevada
corporation ("DFS") and GANIS CREDIT CORPORATION, a Delaware corporation
("Ganis").
WHEREAS, Ganis desires to acquire Receivables from DFS; and
WHEREAS, DFS is willing to contribute such Receivables to Ganis.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. Except as otherwise specified herein or as
the context may otherwise require, capitalized terms used herein (including in
the recitals hereto) have the respective meanings assigned thereto in Appendix A
to the Transfer and Servicing Agreement for all purposes of this Agreement.
"Transfer and Servicing Agreement" means the Transfer and Servicing Agreement,
dated the same date as this Agreement, among Distribution Financial Services RV
Trust 1999-1, Deutsche Recreational Asset Funding Corporation and DFS, as
Servicer, as the same may be amended, amended and restated or otherwise modified
from time to time.
SECTION 1.02. Other Definitional Provisions.
(a) All terms defined in Appendix A to the Transfer and Servicing
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, 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", "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular
provision of this Agreement; Article and Section references contained in this
Agreement are references to Articles and Sections in 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) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, amended and
restated or otherwise modified and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments incorporated
therein; references to a Person are also to its permitted successors and
assigns.
(f) Each reference to the "close of business" on a particular day shall
mean 5:00 p.m. Pacific Time on such day.
ARTICLE II
Contribution of Receivables
SECTION 2.01. Contribution. DFS does hereby transfer, assign, set over
and otherwise convey to Ganis, as a capital contribution, without recourse
(subject to the obligations of DFS set forth herein), all right, title and
interest of DFS in, to and under (but none of the obligations of DFS under):
(a) all of the Receivables originated by DFS or acquired by DFS from
Dealers (all of such Receivables being referred to collectively as the "DFS
Receivables" and individually as a "DFS Receivable") and all moneys received
thereon on and after the Cutoff Date;
(b) the security interests in the Financed Vehicles created pursuant to
the DFS Receivables and any other interest of DFS in the Financed Vehicles;
(c) any proceeds with respect to the DFS Receivables under any
Insurance Policies and all claims under such Insurance Policies;
(d) any proceeds from recourse to Dealers with respect to DFS
Receivables;
(e) any Financed Vehicle, relating to a DFS Receivable, acquired in
repossession;
(f) the contents of the Receivable Files with respect to DFS
Receivables and all rights, benefits and proceeds arising therefrom or in
connection therewith;
2
(g) all funds on deposit from time to time in the Trust Accounts, and
all investments and proceeds thereof (including all income thereon); and
(h) the proceeds of any and all of the foregoing.
The DFS Receivables and other items covered by clauses (a)-(h) of this
Section 2.01 shall be referred to collectively as the "DFS Conveyed Property".
The conveyance of the DFS Conveyed Property by DFS to Ganis (and the other terms
of this Agreement) shall not be deemed to limit the right of DFS (i) to act as
Servicer or (ii) in its capacity as Servicer, to receive compensation as set
forth in the Basic Documents.
SECTION 2.02. Intent of the Parties. (a) DFS and Ganis intend that the
conveyance by DFS to Ganis of the right, title and interest of DFS in, to and
under the DFS Receivables and the other DFS Conveyed Property pursuant to this
Agreement shall constitute a capital contribution and not a loan, that such
conveyance is absolute and unconditional, and that DFS retain no interest in, to
or under the DFS Receivables and the other DFS Conveyed Property. However, in
the event that, notwithstanding the intent of the parties, such conveyance is
deemed to be a transfer for security and not a capital contribution, then (i)
DFS shall be deemed to have granted, and in such event does hereby grant, to
Ganis a first priority security interest in all of its right, title and interest
in, to and under DFS Conveyed Property, and (ii) this Agreement shall constitute
a security agreement under applicable law with respect to such conveyance.
(b) No party hereto shall take any action that is inconsistent with the
ownership of the DFS Conveyed Property by Ganis, it being understood that this
sentence shall not prevent the transfer of the DFS Conveyed Property by Ganis to
the Depositor in accordance with the Ganis/Depositor Transfer Agreement and the
transfer of the DFS Conveyed Property by the Depositor to the Issuer in
accordance with the Transfer and Servicing Agreement. Each party hereto shall
inform any Person inquiring about the Receivables that the DFS Conveyed Property
has been transferred by DFS to Ganis, by Ganis to the Depositor and by the
Depositor to the Issuer (and such transfers shall be reflected in the accounting
records and computer systems of the parties hereto). Without limiting the
generality of the foregoing, for accounting, tax and other purposes each party
hereto shall treat the transfer of the DFS Conveyed Property by DFS to Ganis as
a capital contribution by DFS to Ganis. Notwithstanding any other provision of
this Agreement, no Person shall have any recourse to DFS, Ganis or the Servicer
on account of the financial inability of any Obligor to make payments in respect
of a Receivable.
(c) DFS and Ganis intend that, solely for purposes of allocating income
between DFS and Ganis, (i) the conveyance of DFS Receivables by DFS to Ganis
shall be effective as of the respective dates on which DFS originated or
acquired such DFS Receivables, (ii) all proceeds and income arising on or prior
to the Closing Date in respect of such DFS Receivables shall be deemed to have
been transferred by DFS to Ganis as of such respective dates of origination and
execution, and (iii) Ganis shall be deemed to have paid such proceeds and income
3
simultaneously to DFS as a repayment of intercompany debt owed by Ganis to DFS.
The preceding sentence shall not limit or otherwise affect the other provisions
of this Agreement, including the provisions of Section 3.01 relating to the
obligation of DFS to purchase Receivables in the circumstances contemplated
thereby.
ARTICLE III
The Receivables
SECTION 3.01. Representations and Warranties as to Receivables.
DFS makes the following representations and warranties as to the
Receivables, on which representations and warranties each of Ganis, the
Depositor and the Issuer is deemed to have relied in acquiring the Receivables.
Such representations and warranties speak as of the execution and delivery of
this Agreement and as of the Closing Date and shall survive the transfer and
assignment of the Receivables to the Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
(i) Characteristics of Receivables. All of the Receivables
(other than the Transferor Receivables) were originated by DFS or
acquired by DFS from Dealers. Each DFS Receivable (A) was fully and
properly executed by the parties thereto, (B) contains customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for realization against the collateral
security, (C) is fully amortizing and provides for fixed level periodic
payments which, if made when due, shall fully amortize the Amount
Financed over the original term (except that if such DFS Receivable is
a Step Rate Receivable, such periodic payments will vary from time to
time during the term of such Receivable) and (D) provides for, in the
event that such DFS Receivable is prepaid in full, payment of an amount
that fully pays the Principal Balance and includes accrued but unpaid
interest at least through the date of prepayment calculated at a rate
at least equal to its Annual Percentage Rate. Each DFS Receivable
provides that payments thereon are to be applied in accordance with the
Simple Interest Method. If such DFS Receivable was originated by a
Dealer, such Receivable, to the knowledge of DFS, (A) was originated by
the Dealer for the retail sale of a Financed Vehicle in the ordinary
course of such Dealer's business, (B) was purchased by DFS from such
Dealer for new value under a Dealer Agreement and (C) was validly
assigned by the Dealer to DFS. To the knowledge of DFS, such Dealer had
all necessary licenses and permits to originate DFS Receivables in the
state where such Dealer was located. If such DFS Receivable was
originated by DFS, such DFS Receivable was originated for value by DFS
in the ordinary course of its business to finance the purchase of, or
refinance, the related Financed Vehicle by the related Obligor. DFS had
all necessary licenses and permits to originate or purchase such DFS
Receivable at the time of such origination and purchase. The DFS
Receivables were selected at random by DFS from
4
its portfolio of recreational vehicle receivables originated by DFS or
acquired by DFS from Dealers.
(ii) No Fraud or Misrepresentation. To the knowledge of DFS,
each DFS Receivable originated by a Dealer was originated by the Dealer
and sold by the Dealer to DFS without any fraud or misrepresentation on
the part of such Dealer.
(iii) Compliance with Law. To the knowledge of DFS, all
requirements of applicable federal, state and local laws, and
regulations thereunder (including, without limitation, usury laws, the
Federal Truth-in- Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Magnuson-Moss Warranty Act, the Federal Reserve Board's Regulations "B"
and "Z", the Soldiers' and Sailors' Civil Relief Act of 1940, state
motor vehicle retail installment sales acts and lending acts and state
adaptations of the National Consumer Act and of the Uniform Consumer
Credit Code and other consumer credit laws and equal credit opportunity
and disclosure laws) in respect of all of the DFS Receivables and each
and every sale of Financed Vehicles relating thereto, have been
complied with in all material respects, and each DFS Receivable and the
sale of the Financed Vehicle evidenced by each DFS Receivable complied
at the time it was originated or made and now complies in all material
respects with all applicable legal requirements, including the laws and
regulations contemplated by this clause (iii).
(iv) Origination. Each DFS Receivable was originated in the
United States of America.
(v) Binding Obligation. Each DFS Receivable represents the
genuine, legal, valid and binding payment obligation of the Obligor
thereon, enforceable by the holder thereof in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the enforcement of
creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law; and
all parties to each DFS Receivable had full legal capacity to execute
and deliver such DFS Receivable and all other documents related thereto
and to grant the security interest purported to be granted thereby.
(vi) No Government Obligor. No Obligor of a DFS Receivable is
the United States of America or any State or any agency, department,
subdivision or instrumentality thereof.
(vii) Obligor Bankruptcy. At the Cutoff Date, no Obligor had
been identified on the records of DFS as being the subject of a current
bankruptcy proceeding.
5
(viii) Schedule of Receivables. The information with respect
to DFS Receivables set forth in the Schedule of Receivables is true and
correct in all material respects as of the close of business on the
Cutoff Date.
(ix) Marking Records. By the Closing Date, DFS shall have
caused the portions of its electronic ledger relating to the DFS
Receivables to be clearly and unambiguously marked to show that the DFS
Receivables have been transferred absolutely from DFS to Ganis, from
Ganis to the Depositor and from the Depositor to the Trust.
(x) Computer Tape. The Computer Tape was complete and accurate
as of the Cutoff Date and includes a description of the same DFS
Receivables that are described in the Schedule of Receivables.
(xi) Chattel Paper. The DFS Receivables constitute chattel
paper within the meaning of the UCC as in effect in the states in which
the Obligors reside.
(xii) One Original. There is only one original executed copy
of each DFS Receivable.
(xiii) Receivable Files Complete. There exists a Receivable
File pertaining to each DFS Receivable and, to the knowledge of DFS,
such Receivable File contains (a) a fully executed original of the DFS
Receivable, with a fully executed assignment thereof in blank or from
the related Dealer to DFS, as the case may be, if such DFS Receivable
was acquired by DFS from a Dealer, (b) a certificate of physical damage
insurance, application form for such insurance signed by the Obligor or
a signed representation letter from the Obligor named in the DFS
Receivable pursuant to which the Obligor has agreed to obtain physical
damage insurance for the Financed Vehicle, or copies thereof, (c) the
Lien Certificate or a copy of the application therefor or a
certification from the Servicer that it has received confirmation from
an authorized official of the appropriate governmental office of the
existence of the first lien of DFS with respect to the related Financed
Vehicle and (d) a credit application signed by the Obligor, or a copy
thereof. Each of such documents which is required to be signed by the
Obligor has been signed by the Obligor in the appropriate spaces. Each
of the foregoing documents has been correctly prepared. The complete
file for each DFS Receivable currently is in the possession of the
Servicer.
(xiv) Receivables in Force. No DFS Receivable has been
satisfied, subordinated or rescinded, and the Financed Vehicle securing
each such DFS Receivable has not been released from the lien of the
related DFS Receivable in whole or in part. No provisions of any DFS
Receivable have been waived, altered or modified (except that DFS as
servicer may have, for administrative purposes, modified the due date
of a DFS Receivable to a different date in the month, which
modification is reflected in its
6
servicing records) in any respect since its origination, except by
instruments or documents identified in the Receivable File. No DFS
Receivable has been modified as a result of application of the
Soldiers' and Sailors' Civil Relief Act of 1940, as amended.
(xv) Lawful Assignment. No DFS Receivable was originated in,
or is subject to the laws of, any jurisdiction the laws of which (a)
would make unlawful, void or voidable the transfer and assignment of
such DFS Receivable under this Agreement or the pledge of such DFS
Receivable under the Indenture or (b) would impair the validity or
enforceability of any DFS Receivable because of any such transfer,
assignment or pledge.
(xvi) Good Title. No DFS Receivable has been sold,
transferred, assigned or pledged by DFS except pursuant to this
Agreement; immediately prior to the conveyance of the DFS Receivables
by DFS to Ganis pursuant to this Agreement, DFS had good and
indefeasible title to the DFS Receivables, free and clear of any Lien.
No Dealer has a participation in, or other right to receive, payments
or proceeds in respect of any DFS Receivable. DFS has not taken any
action to convey any right to any Person that would result in such
Person having a right to payments received under the related Insurance
Policies or the related Dealer Agreements or to payments due under such
DFS Receivables. This Agreement is effective to transfer to the
Transferor all of the right, title and interest of DFS in, to and under
the DFS Receivables.
(xvii) Security Interest in Financed Vehicle. Each DFS
Receivable has created a valid, binding and enforceable first priority
security interest in favor of DFS in the related Financed Vehicle,
which is in full force and effect. Each Lien Certificate contained in
the Receivables Files shows DFS named as the original secured party
under each DFS Receivable and as the holder of a first priority
security interest in such Financed Vehicle. With respect to each DFS
Receivable for which the Lien Certificate is not contained in the
related Receivable File, the Servicer has either received written
evidence that such Lien Certificate showing DFS as first lienholder has
been applied for or has certified in writing in the related Receivable
File that it has received confirmation from the appropriate
governmental office of the existence of the first lien of DFS with
respect to the related Financed Vehicle. The security interest of DFS
in each such Financed Vehicle has been validly assigned by DFS to Ganis
pursuant to this Agreement. Each DFS Receivable is secured by an
enforceable and perfected first priority security interest in the
Financed Vehicle in the name of DFS as secured party, which security
interest is prior to all other Liens upon and security interests in
such Financed Vehicle.
(xviii) All Filings Made; Valid Security Interest. All filings
(including, without limitation, UCC filings) required to be made by any
Person and actions required to be taken or performed by any Person in
any jurisdiction to give Ganis a first priority perfected ownership
interest in the DFS Receivables and the proceeds thereof have been
made, taken or performed, subject to the transfer thereof by Ganis to
the Depositor. At
7
the Closing Date Ganis shall have a valid, subsisting and enforceable
first priority ownership interest in each Receivable and the proceeds
thereof, subject to the transfer thereof by Ganis to the Depositor.
(xix) No Impairment. DFS has not done and shall not do
anything to convey any right to any Person that would result in such
Person having a right to payments due under a Receivable or otherwise
to impair the rights of the Trust in any Receivable or the proceeds
thereof.
(xx) No Release. No DFS Receivable is assumable by another
Person in a manner which would release the Obligor thereof from such
Obligor's obligations to DFS with respect to such DFS Receivable.
(xxi) No Defenses. No DFS Receivable is subject to any right
of rescission, setoff, counterclaim or defense and, to the knowledge of
DFS, no such right has been asserted or threatened with respect to any
DFS Receivable. The operation of the terms of any DFS Receivable or the
exercise of any right thereunder shall not render the DFS Receivable
unenforceable in whole or in part or subject to any right of
rescission, setoff, counterclaim or defense, and to the knowledge of
DFS, no such right of rescission, setoff, counterclaim or defense has
been asserted or threatened with respect thereto.
(xxii) No Default. To the knowledge of DFS, there has been no
default, breach, violation or event permitting acceleration under the
terms of any DFS Receivable (other than payment delinquencies as of the
Cutoff Date of not more than 59 days), and no condition exists or event
has occurred and is continuing that with notice, the lapse of time or
both would constitute a default, breach, violation or event permitting
acceleration under the terms of any DFS Receivable, and there has been
no waiver of any of the foregoing. As of the Cutoff Date, no Financed
Vehicle relating to any DFS Receivable had been repossessed.
(xxiii) Insurance. Each DFS Receivable requires the Obligor to
maintain physical loss and damage insurance, naming DFS and its
successors and assigns as additional insured parties or loss payees ,
and each DFS Receivable permits the holder thereof to obtain physical
loss and damage insurance at the expense of the Obligor if the Obligor
fails to do so. No Financed Vehicle relating to any DFS Receivable was
insured under a policy of force-placed insurance on the Cutoff Date.
(xxiv) Past Due. At the Cutoff Date, no DFS Receivable was
more than 59 days past due.
(xxv) No Liens. There are no Liens or claims which have been
filed, and, to the knowledge of DFS, none pending or threatened to be
filed, for work, labor, materials or unpaid state or federal taxes
affecting the Financed Vehicle securing any DFS
8
Receivable which are or may become liens prior or equal to the lien of
the DFS Receivable.
(xxvi) Remaining Principal Balance. At the Cutoff Date, the
Principal Balance of each DFS Receivable set forth in the Schedule of
Receivables is true and accurate in all material respects.
(xxvii) Final Scheduled Maturity Date. No Receivable has a
final maturity which is sooner than the first Monthly Payment Date
following the Closing Date or later than 240 months after the Cutoff
Date.
(xxviii) Certain Characteristics. (A) Each Receivable had a
remaining maturity, as of the Cutoff Date, of at least 2 months but not
more than 240 months; (B) each Receivable had an original maturity of
at least 12 months but not more than 240 months; (C) each Receivable
had an original principal balance of at least $1,313.31 and not more
than $889,770.23; (D) each Receivable had a Principal Balance as of the
Cutoff Date of at least $153.62 and not more than $873,403.15; (E) as
of the Cutoff Date, each Receivable has an Annual Percentage Rate of at
least 4.00% and not more than 18.50%; (F) approximately 50.52% of the
aggregate Principal Balance of the Receivables (measured as of the
Cutoff Date), constituting 56.18% of the number of such Receivables,
were secured by used Financed Vehicles at the time such Receivables
were originated; (G) no funds have been advanced by DFS, any Dealer, or
any Person acting on behalf of any of them in order to cause any DFS
Receivable to qualify under paragraph (xxv) above; (H) as of the Cutoff
Date, other than California (19.74%), Florida (9.20%), Oregon (6.93%)
and Texas (11.06%), no State represented more than 5% of the Initial
Pool Balance with respect to the billing addresses of the Obligors
(determined by reference to the records of DFS); and (I) the Principal
Balance of each DFS Receivable set forth in Schedule of Receivables is
true and accurate in all material respects as of the Cutoff Date. As of
the Cutoff Date, the sum of the Principal Balances of the Receivables
which are Step Rate Receivables does not exceed 1% of the Initial Pool
Balance.
For purposes of determining whether DFS is obligated to
purchase a Receivable on account of a breach of a representation and
warranty pursuant to this Section 3.01 or indemnify in respect of such
breach pursuant to the last paragraph of this Section 3.01, the
determination as to whether a representation or warranty that is made
to the knowledge of DFS has been breached shall be made without regard
to such knowledge of DFS as if such representation and warranty were
not qualified by the knowledge of DFS.
Upon discovery by any party hereto of a breach of any of the
representations and warranties of DFS set forth in this Section, which
materially and adversely affects the value of the Receivables or the
interest therein of the Issuer or the Indenture Trustee (or which
materially and adversely affects the interest of the Issuer or the
Indenture Trustee
9
in the related Receivable in the case of a representation and warranty
relating to a particular Receivable), the party discovering such breach
shall give prompt written notice to the other parties hereto. On the
last day of the Collection Period following the Collection Period
during which DFS discovers or receives notice of any such breach of any
such representation or warranty, if such breach shall not have been
cured in all material respects by such last day, DFS shall purchase
such Receivable from the Issuer (or from the Depositor, if the
Depositor is required to purchase such Receivable pursuant to Section
3.01 of the Transfer and Servicing Agreement) as of such last day at a
price equal to the Purchase Amount of such Receivable, which price DFS
shall remit in the manner specified in Section 5.05 of the Transfer and
Servicing Agreement; provided, that, with respect to the representation
set forth in paragraph (xiii) above, such purchase shall be required
with respect to a Receivable only if any resulting breach is not cured
(it being understood that if the related Lien Certificate has been duly
applied for from the applicable governmental offices as evidenced by a
copy of the application therefor, the receipt of such Lien Certificate
shall not be required to cure a breach of the applicable representation
and warranty) within 90 days after completion of the review and
examination of the Receivable File for such Receivable pursuant to
Section 3.02 of the Transfer and Servicing Agreement. Subject to the
indemnification provisions contained in the last paragraph of this
Section, the sole remedy of Ganis, the Depositor, the Issuer, the Owner
Trustee, the Indenture Trustee, the Residual Interestholder and the
Noteholders with respect to a breach of representations and warranties
of DFS set forth in this Section shall be to require DFS to purchase
Receivables pursuant to this Section, subject to the conditions
contained herein.
DFS shall indemnify Ganis, the Depositor, the Issuer, the
Owner Trustee and the Indenture Trustee and hold each harmless against
any loss, damages, penalties, fines, forfeitures, legal fees and
related costs, judgments, and other costs and expenses resulting from
any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the representations and warranties of DFS
contained in this Agreement; provided that DFS shall not be liable for
any indirect damages or for any loss, damage, penalty, fine,
forfeiture, legal fees and related costs, judgments and other costs and
expenses caused by the wilful misconduct of Ganis, the Issuer, the
Owner Trustee or the Indenture Trustee.
ARTICLE IV
DFS
SECTION 4.01. Representations of DFS. DFS makes the following
representations on which each of Ganis, the Depositor and the Issuer is deemed
to have relied in acquiring the Receivables. The representations speak as of the
execution and delivery of this Agreement and as of the Closing Date, in the case
of the Receivables, and shall survive the transfer of the
10
Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(a) Organization and Good Standing. DFS is duly organized and validly
existing as a corporation in good standing under the laws of the State of
Nevada, with the corporate power and authority to own its properties and to
conduct its business as such properties are currently owned and such business is
presently conducted, and had at all relevant times, and has, the corporate
power, authority and legal right to acquire and own the Receivables.
(b) Due Qualification. DFS is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of property
or the conduct of its business shall require such qualifications.
(c) Power and Authority. DFS has the corporate power and authority to
execute and deliver this Agreement and to carry out its respective terms; DFS
has full power and authority to transfer and assign the property to be
transferred and assigned to Ganis, and DFS shall have duly authorized such
transfer and assignment by all necessary corporate action; and the execution,
delivery and performance of this Agreement by DFS has been duly authorized by
DFS by all necessary corporate action.
(d) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of DFS enforceable in accordance with its terms.
(e) No Violation. The consummation of the transactions contemplated by
this Agreement by DFS and the fulfillment of the terms hereof by DFS do not
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or bylaws of DFS, or any indenture, agreement or other
instrument to which DFS is a party or by which it is bound; or result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than pursuant
to the Basic Documents); or violate any law or, to the best of the knowledge of
DFS, any order, rule or regulation applicable to DFS of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over DFS or its properties.
(f) No Proceedings. To the best knowledge of DFS, there are no
proceedings or investigations pending or threatened before any court, regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over DFS or its properties: (i) asserting the invalidity of this
Agreement, the Indenture or any of the other Basic Documents, the Notes or the
Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated by this
Agreement, the Indenture or any of the other Basic Documents, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by DFS of its obligations under, or the validity or
11
enforceability of, this Agreement, the Indenture, any of the other Basic
Documents, the Notes or the Certificates or (iv) which might adversely affect
the federal or state income tax attributes of the Notes or the Certificates.
(g) Chief Executive Office. The chief executive office of DFS is
located at 655 Maryville Centre Drive, St. Louis, Missouri 63141.
SECTION 4.02. Corporate Existence. During the term of this Agreement,
DFS shall keep in full force and effect its existence, rights and franchises as
a corporation under the laws of the jurisdiction of its incorporation and shall
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Basic Documents and each other instrument
or agreement necessary or appropriate to the proper administration of this
Agreement and the transactions contemplated hereby.
SECTION 4.03. Liability of DFS . DFS shall be liable in accordance
herewith only to the extent of the obligations specifically undertaken by DFS
under this Agreement.
SECTION 4.04. Indemnification. (a) DFS shall indemnify, defend and hold
harmless Ganis against any taxes that may at any time be asserted against Ganis
with respect to any sales, tangible personal property, privilege or license
taxes relating to this Agreement (but not including any taxes asserted with
respect to, and as of the date of, the transfer of the Receivables to Ganis or
the issuance and original sale of the Notes and the Residual Interest, or
asserted with respect to ownership of the Receivables, or federal or other
income taxes) and costs and expenses in defending against the same.
(b) DFS shall indemnify, defend and hold harmless Ganis and any of the
officers, directors, employees and agents of Ganis from and against any loss,
liability or expense incurred by reason of the willful misfeasance of DFS, bad
faith or negligence in the performance of its duties under this Agreement, or by
reason of reckless disregard of its obligations and duties under this Agreement.
Indemnification under this Section shall survive termination of this
Agreement and the other Basic Documents and shall include reasonable fees and
expenses of counsel and expenses of litigation. If DFS shall have made any
indemnity payments pursuant to this Section and the Person to or on behalf of
whom such payments are made thereafter shall collect any of such amounts from
others, such Person shall promptly repay such amounts to DFS, without interest.
SECTION 4.05. Merger or Consolidation of, or Assumption of the
Obligations of, DFS. Any Person (a) into which DFS may be merged or
consolidated, (b) which may result from any merger or consolidation to which DFS
shall be a party or (c) which may succeed to the properties and assets of DFS
substantially as a whole, which Person in any of the foregoing cases executes an
agreement of assumption to perform every obligation of DFS under this
12
Agreement, shall be the successor to DFS hereunder without the execution or
filing of any document or any further act by any of the parties to this
Agreement; provided, however, that (i) immediately after giving effect to such
transaction, no representation or warranty made by DFS in Section 3.01 shall
have been breached (unless the applicable breach shall have been cured in all
material respects, or the applicable Receivable shall have been purchased in
accordance herewith), (ii) DFS shall have delivered to Ganis, the Owner Trustee
and the Indenture Trustee an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section and that all conditions precedent, if any,
provided for in this Agreement relating to such transaction have been complied
with, (iii) DFS shall have delivered to the Owner Trustee and the Indenture
Trustee an Opinion of Counsel either (A) stating that, in the opinion of such
counsel, all financing statements and continuation statements and amendments
thereto have been executed and filed that are necessary fully to preserve and
protect the interest of the Owner Trustee and Indenture Trustee, respectively,
in the DFS Receivables and reciting the details of such filings, or (B) stating
that, in the opinion of such counsel, no such action shall be necessary to
preserve and protect such interests. Notwithstanding anything herein to the
contrary, the execution of the foregoing agreement of assumption and compliance
with clauses (i), (ii), and (iii) above shall be conditions to the consummation
of the transactions referred to in clauses (a), (b) or (c) above.
SECTION 4.06. Limitation on Liability of DFS and Others. DFS and any
director, officer, employee or agent of DFS may rely in good faith on the advice
of counsel or on any document of any kind, prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. DFS shall not
be under any obligation to appear in, prosecute or defend any legal action that
shall not be incidental to its obligations under this Agreement, and that in its
opinion may involve it in any expense or liability.
ARTICLE V
Miscellaneous
SECTION 5.01. Amendment. This Agreement may be amended by the parties
hereto, with the consent of the Indenture Trustee, but without the consent of
any other Person; provided, however, that no such amendment shall be effective
unless either (a) the Owner Trustee and the Indenture Trustee shall have been
delivered an Opinion of Counsel to the effect that such amendment shall not
adversely affect in any material respect the interests of any Noteholder or the
Residual Interestholder, or (b) the Holders of 100% of the Outstanding Amount of
the Notes shall have consented to such amendment.
Promptly after the execution of any such amendment or consent, Ganis
shall furnish written notification of the substance of such amendment or consent
to the Indenture Trustee and each of the Rating Agencies.
13
Prior to the execution of or the consent to any amendment to this
Agreement, the Indenture Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of or the consent to such
amendment is authorized or permitted by this Agreement. The Indenture Trustee
may, but shall not be obligated to, consent to any such amendment which affects
the Indenture Trustee's own rights, duties or immunities under this Agreement or
otherwise.
SECTION 5.02. Protection of Title; Change of Name, Identity, Corporate
Structure or Location, Etc.
(a) DFS shall execute and file such financing statements and cause to
be executed and filed such continuation statements, all in such manner and in
such places as may be required by law fully to preserve, maintain and protect
the interest of Ganis, the Issuer and of the Indenture Trustee in the
Receivables and in the proceeds thereof. DFS shall deliver (or cause to be
delivered) to the Owner Trustee and the Indenture Trustee file-stamped copies
of, or filing receipts for, any document filed as provided above, as soon as
available following such filing.
(b) DFS shall not change its name, identity or corporate structure in
any manner that would, could or might make any financing statement or
continuation statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of Section 9- 402(7) of the UCC, unless it shall
have given Ganis, the Owner Trustee and the Indenture Trustee at least five
days' prior written notice thereof and shall have promptly filed appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) DFS shall give Ganis, the Owner Trustee and the Indenture Trustee
at least 60 days' prior written notice of any relocation of its chief 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 promptly file
any such amendment or new financing statement.
(d) If at any time DFS shall propose to sell, grant a security interest
in, or otherwise transfer any interest in recreational vehicle receivables to
any prospective purchaser, lender or other transferee, DFS shall give (or shall
cause the Servicer to give) to such prospective purchaser, lender or other
transferee computer tapes, records or printouts (including any restored from
backup archives) that, if they shall refer in any manner whatsoever to any DFS
Receivable, shall indicate clearly that such DFS Receivable has been transferred
by DFS to Ganis and by Ganis to the Issuer and is owned by the Issuer and has
been pledged to the Indenture Trustee.
SECTION 5.03. Notices. All demands, notices, directions, communications
and instructions upon, to, or by DFS, Ganis, the Depositor, the Issuer, the
Owner Trustee, the Indenture Trustee or the Rating Agencies under this Agreement
shall be in writing, personally delivered or mailed by certified mail, return
receipt requested, and shall be deemed to have been duly given upon receipt (a)
in the case of DFS, to Deutsche Financial Services Corporation, 655
14
Maryville Centre Drive, St. Louis, Missouri 63141, Attention: Senior Vice
President/Treasurer or Chief Legal Officer, (b) in the case of Ganis, to Ganis
Credit Corporation, 660 Newport Center Drive, Newport Beach, California 92660,
Attention: Senior Vice President, (c) in the case of the Depositor, to Deutsche
Recreational Asset Funding Corporation, 655 Maryville Centre Drive, St. Louis,
Missouri 63141, Attention: President, (d) in the case of the Issuer or the Owner
Trustee, at the Corporate Trust Office (as defined in the Trust Agreement), (e)
in the case of the Indenture Trustee, at the Corporate Trust Office, (f) in the
case of Fitch, to Fitch IBCA, Inc., One State Street Plaza, New York, New York
10004, Attention: Asset-Backed Securities Surveillance Group, and (g) in the
case of Standard & Poor's, to Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc., 25 Broadway (15th Floor), New York, New York
10004, Attention: Asset Backed Surveillance Department; or, as to each of the
foregoing, at such other address as shall be designated by written notice to the
other Persons listed in this Section.
SECTION 5.04. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 4.05 of this Agreement, this
Agreement may not be assigned by DFS. DFS hereby acknowledges and consents to
(i) the transfer by Ganis to the Depositor pursuant to the Ganis/Depositor
Transfer Agreement of all right, title and interest of Ganis in, to and under
(but none of the obligations of Ganis under) the DFS Conveyed Property and this
Agreement, (ii) the transfer by the Depositor to the Issuer pursuant to the
Transfer and Servicing Agreement of all right, title and interest of the
Depositor in, to and under (but none of the obligations of the Depositor under)
the DFS Conveyed Property and this Agreement, including the representations and
warranties of DFS in this Agreement, together with all rights of Ganis with
respect to any breach thereof, including the right to require DFS to purchase
Receivables in accordance with this Agreement, and (iii) the other terms of and
transactions contemplated by the Transfer and Servicing Agreement and the other
Basic Documents.
SECTION 5.05. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of DFS, Ganis, the Depositor, the Servicer,
the Issuer, the Owner Trustee, the Indenture Trustee and the Noteholders, and,
except as expressly provided in this Agreement, nothing in this Agreement shall
be construed to give to any other Person any legal or equitable right, remedy or
claim under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 5.06. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 5.07. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
15
SECTION 5.08. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 5.09. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE PERFECTION (AND THE EFFECT OF
PERFECTION OR NON-PERFECTION) OF THE INTERESTS OF ANY PERSON IN CONVEYED
PROPERTY ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
SECTION 5.10. Nonpetition Covenants. Notwithstanding any prior
termination of this Agreement, DFS shall not acquiesce, petition or otherwise
invoke or cause the Issuer to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Issuer
under any federal or state bankruptcy, insolvency or similar law, or appointing
a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
Notwithstanding any prior termination of this Agreement, DFS shall not
acquiesce, petition or otherwise invoke or cause the Depositor to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Depositor under any federal or state bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Depositor or
any substantial part of its property, or ordering the winding up or liquidation
of the affairs of the Depositor.
SECTION 5.11. Waiver. Each party hereto hereby (a) acknowledges that
Mayer, Brown & Platt represents (i) DFS, the Transferor, and the Depositor in
connection with the transactions contemplated by the Basic Documents, (ii)
Affiliates of the Transferor, DFS and the Depositor in other matters, (iii)
underwriters of the Notes (and Affiliates of underwriters of the Notes) in other
matters, (iv) the institutions which are the Indenture Trustee and the Owner
Trustee (and Affiliates of such institutions) in other matters, and (v) the
Specified Accountants in other matters, and (b) waives any conflict of interest
relating thereto. Notwithstanding any other provision of this Agreement, Mayer,
Brown & Platt is entitled to rely on this Section.
SECTION 5.12. Separate Corporate Existence. Each party hereto hereby
acknowledges that the Trust is entering into the transactions contemplated by
the Basic Documents in reliance upon (i) the identity of DFS as a legal entity
separate from the Depositor and (ii) the identity of Ganis as a legal entity
separate from the Depositor. Therefore, each party hereto shall take all
reasonable steps to make it apparent to third Persons that the Depositor is an
entity with assets and liabilities distinct from those of DFS and Ganis and that
the Depositor is not a division of DFS, Ganis or any other Person. Without
limiting the foregoing, each party hereto shall operate
16
and conduct its respective businesses and otherwise act in a manner which is
consistent with Section 10.13 of the Transfer and Servicing Agreement.
SECTION 5.13. 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 or any other Basic Document 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 set forth in Section 5.03 or at such other address notified to the other
party to this Agreement pursuant thereto; and
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to sue
in any other jurisdiction.
[SIGNATURES FOLLOW]
17
IN WITNESS WHEREOF, the parties hereto have caused this DFS/Ganis
Transfer Agreement to be duly executed by their respective officers as of the
day and year first above written.
DEUTSCHE FINANCIAL SERVICES CORPORATION
By: /s/ Richard C. Goldman
-------------------------------------
Name: Richard C. Goldman
-----------------------------------
Title: Senior Vice President
----------------------------------
By: /s/ Richard H. Schumacher
-------------------------------------
Name: Richard H. Schumacher
-----------------------------------
Title: Senior Vice President
----------------------------------
GANIS CREDIT CORPORATION
By: /s/ Richard C. Goldman
-------------------------------------
Name: Richard C. Goldman
-----------------------------------
Title: Vice President
----------------------------------
By: /s/ Richard H. Schumacher
-------------------------------------
Name: Richard H. Schumacher
-----------------------------------
Title: Assistant Treasurer
----------------------------------
S-1