EXHIBIT 10.1
TRANSFER AND SERVICING AGREEMENT
among
DISTRIBUTION FINANCIAL SERVICES RV/MARINE TRUST 2001-1,
as Issuer,
DEUTSCHE RECREATIONAL ASSET FUNDING CORPORATION,
as Depositor
and
DEUTSCHE FINANCIAL SERVICES CORPORATION,
as Servicer
Dated as of November 1, 2001
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...........................................................................2
ARTICLE III
The Receivables
SECTION 3.01 Representations and Warranties with Respect to the Receivables..................................3
SECTION 3.02 Custody of Receivable Files.....................................................................5
SECTION 3.03 Duties of Servicer as Custodian.................................................................6
SECTION 3.04 Instructions; Authority To Act..................................................................6
SECTION 3.05 Custodian's Indemnification.....................................................................6
SECTION 3.06 Effective Period and Termination................................................................7
ARTICLE IV
Administration and Servicing of Receivables
SECTION 4.01 Duties of Servicer..............................................................................7
SECTION 4.02 Collection and Application of Receivable Payments...............................................8
SECTION 4.03 Realization upon Receivables....................................................................8
SECTION 4.04 Physical Damage Insurance.......................................................................9
SECTION 4.05 Maintenance of Security Interests in Financed Assets............................................9
SECTION 4.06 Covenants of Servicer...........................................................................9
SECTION 4.07 Purchase of Receivables upon Breach.............................................................9
SECTION 4.08 Servicing Fee..................................................................................10
SECTION 4.09 Servicer's Certificate.........................................................................10
SECTION 4.10 Annual Statement as to Compliance; Notice of Default...........................................10
SECTION 4.11 Annual Independent Certified Public Accountants' Report........................................11
SECTION 4.12 Access to Certain Documentation and Information Regarding Receivables..........................11
SECTION 4.13 Servicer Expenses..............................................................................12
SECTION 4.14 Appointment of Subservicer.....................................................................12
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SECTION 4.15 Fidelity Bond; Errors and Omissions Insurance..................................................12
ARTICLE V
Distributions; Statements to Noteholders
SECTION 5.01 Establishment of Trust Accounts................................................................13
SECTION 5.02 Collections....................................................................................16
SECTION 5.03 Application of Collections.....................................................................17
SECTION 5.04 Advances.......................................................................................18
SECTION 5.05 Additional Deposits............................................................................18
SECTION 5.06 Distributions..................................................................................18
SECTION 5.07 Reserve Account................................................................................22
SECTION 5.08 Statements to Noteholders......................................................................22
ARTICLE VI
The Depositor
SECTION 6.01 Representations of Depositor...................................................................23
SECTION 6.02 Corporate Existence............................................................................24
SECTION 6.03 Liability of the Depositor.....................................................................25
SECTION 6.04 Indemnification................................................................................25
SECTION 6.05 Merger or Consolidation of, or Assumption of the Obligations
of Depositor...................................................................................26
SECTION 6.06 Limitation on Liability of Depositor and Others................................................26
SECTION 6.07 Depositor May Own Notes........................................................................27
SECTION 6.08 Pennsylvania Motor Vehicle Sales Finance Act License...........................................27
ARTICLE VII
The Servicer
SECTION 7.01 Representations and Warranties of the Servicer.................................................27
SECTION 7.02 Indemnities, etc. of Servicer..................................................................28
SECTION 7.03 Merger or Consolidation of, or Assumption of the Obligations of,
Servicer.......................................................................................29
SECTION 7.04 Limitation on Liability of Servicer and Others.................................................30
SECTION 7.05 Resignation of Servicer........................................................................30
ARTICLE VIII
Servicer Default
SECTION 8.01 Servicer Default...............................................................................31
SECTION 8.02 Appointment of Successor.......................................................................32
SECTION 8.03 Repayment of Advances..........................................................................33
SECTION 8.04 Notification to Noteholders....................................................................33
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SECTION 8.05 Waiver of Past Defaults........................................................................33
ARTICLE IX
Termination
SECTION 9.01 Optional Purchase of All Receivables...........................................................34
ARTICLE X
Miscellaneous
SECTION 10.01 Amendment......................................................................................34
SECTION 10.02 Protection of Title to Trust; Change of Name, Identity,
Corporate Structure or Location of the Depositor, Etc..........................................35
SECTION 10.03 Notices........................................................................................37
SECTION 10.04 Assignment.....................................................................................37
SECTION 10.05 Limitations on Rights of Others................................................................38
SECTION 10.06 Severability...................................................................................38
SECTION 10.07 Separate Counterparts..........................................................................38
SECTION 10.08 Headings.......................................................................................38
SECTION 10.09 Governing Law..................................................................................38
SECTION 10.10 Nonpetition Covenants..........................................................................38
SECTION 10.11 Limitation of Liability of Owner Trustee and Indenture Trustee.................................39
SECTION 10.12 Waiver.........................................................................................39
SECTION 10.13 Separate Corporate Existence...................................................................39
SECTION 10.14 Submission to Jurisdiction.....................................................................41
SECTION 10.15 Tax Treatment..................................................................................42
APPENDIX A Definitions (Section 1.01)
SCHEDULE A Schedule of Receivables
SCHEDULE B Location of the Receivable Files (Section 3.03(b))
EXHIBIT A Form of Monthly Payment Date Statement to Noteholders (Section 5.08)
EXHIBIT B Form of Servicer's Certificate (Section 4.09)
EXHIBIT C Final Certification of Custodian (Section 3.02)
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TRANSFER AND SERVICING AGREEMENT dated as of November 1, 2001 (this
"Agreement") among DISTRIBUTION FINANCIAL SERVICES RV/MARINE TRUST 2001-1, a
New York common law trust (the "Issuer"), DEUTSCHE RECREATIONAL ASSET FUNDING
CORPORATION, a Nevada corporation, as Depositor (the "Depositor"), and DEUTSCHE
FINANCIAL SERVICES CORPORATION, a Nevada corporation ("DFS"), as Servicer.
WHEREAS, the Issuer desires to acquire Receivables from the Depositor;
WHEREAS, the Depositor is willing to contribute such Receivables to the
Issuer; and
WHEREAS, the Depositor acquired such Receivables from the Transferor
pursuant to the Ganis/Depositor Transfer Agreement, and the Transferor acquired
certain of such Receivables from DFS pursuant to the DFS/Ganis Transfer
Agreement.
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
for all purposes of this Agreement.
SECTION 1.02 Other Definitional Provisions.
(a) All terms defined in Appendix A attached hereto 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, Section, Schedule
and Exhibit references contained in this Agreement are references to Articles,
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) 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. The Depositor does hereby transfer, assign,
set over and otherwise convey to the Issuer, as a capital contribution, without
recourse (subject to the obligations of the Depositor set forth herein), all
right, title and interest of the Depositor in, to and under (but none of the
obligations of the Depositor under):
(a) the Receivables, the DFS/Ganis Transfer Agreement and the other
Transferor Conveyed Property;
(b) the Ganis/Depositor Transfer Agreement; and
(c) the proceeds of any and all of the foregoing.
The Receivables and other items covered by clauses (a)-(c) of this
Section 2.01 shall be referred to collectively as the "Depositor Conveyed
Property".
SECTION 2.02 Intent of the Parties.
(a) The Depositor and the Issuer intend that the conveyance by the
Depositor to the Issuer of the right, title and interest of the Depositor in, to
and under the Receivables and the other Depositor Conveyed Property pursuant to
this Agreement shall constitute a capital
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contribution and not a loan. 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) the Depositor shall be deemed to have
granted, and in such event does hereby grant, to the Issuer a first priority
security interest in all of its right, title and interest in, to and under the
Depositor Conveyed Property, and (ii) this Agreement shall constitute a security
agreement under applicable law with respect to such conveyance. If such
conveyance is deemed to be a transfer for security and not a capital
contribution, the Depositor consents to the Issuer hypothecating and
transferring such security interest in favor of any assignee or assignees and
transferring the obligations secured thereby to such assignee or assignees.
(b) No party hereto shall take any action that is inconsistent with the
ownership of the Depositor Conveyed Property by the Issuer, and each party
hereto shall inform any Person inquiring about the Receivables that the Issuer
owns the Depositor Conveyed Property. Without limiting the generality of the
foregoing, for accounting, tax and other purposes the Depositor and the Issuer
shall treat the transfer of the Depositor Conveyed Property by the Depositor to
the Issuer as a capital contribution by the Depositor to the Issuer.
Notwithstanding any other provision of this Agreement, no Person shall have any
recourse to DFS, the Transferor, the Depositor or the Servicer on account of the
financial inability of any Obligor to make payments in respect of a Receivable.
ARTICLE III
The Receivables
SECTION 3.01 Representations and Warranties with Respect to the
Receivables. DFS has made the representations and warranties set forth in
Section 3.01 of the DFS/Ganis Transfer Agreement, and has consented to the
assignment by the Transferor to the Depositor and by the Depositor to the Issuer
of the Transferor's rights with respect thereto. The Transferor has made the
representations and warranties set forth in Section 3.01 of the Ganis/Depositor
Transfer Agreement, and has consented to the assignment by the Depositor to the
Issuer of the Depositor's rights with respect thereto. Pursuant to Section 2.01
of this Agreement, the Depositor has transferred to the Issuer all of the
Depositor's right, title and interest in, to and under the DFS/Ganis Transfer
Agreement and the Ganis/Depositor Transfer Agreement, which shall be understood
to include the representations and warranties of DFS and the Transferor therein,
upon which the Issuer relies in accepting the Receivables, together with all
rights of the Depositor with respect to any breach thereof, including the right
to require DFS or the Transferor, as the case may be, to purchase Receivables in
accordance with the DFS/Ganis Transfer Agreement or the Ganis/Depositor
Transferor Agreement, as the case may be.
The Depositor makes the following representations and warranties as to
the Receivables on which 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
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Date, but shall survive the transfer and assignment of the Receivables to the
Issuer and the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
(a) Title. No Receivable has been sold, transferred, assigned or
pledged by the Depositor to any Person other than the Issuer. Immediately prior
to the transfer and assignment by the Depositor to the Issuer, the Depositor had
good and marketable title to each Receivable, free and clear of all Liens and,
immediately upon the transfer thereof, the Issuer shall have good and marketable
title to each Receivable, free and clear of all Liens; and such transfer has
been perfected under the UCC.
(b) All Filings Made. All filings (including UCC filings) necessary in
any jurisdiction to give (i) the Issuer a first perfected ownership interest in
the Receivables and (ii) the Indenture Trustee a first perfected security
interest in the Receivables have been made.
Upon discovery by the Depositor, the Servicer, the Owner Trustee or the
Indenture Trustee of a breach of any of the representations and warranties of
the Depositor set forth in this Section, of the Transferor set forth in Section
3.01 of the Ganis/Depositor Transfer Agreement or of DFS set forth in Section
3.01 of the DFS/Ganis Transfer Agreement, in each case 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 in the related Receivable in the
case of a representation and warranty relating to a particular Receivable), the
Person 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 the Depositor 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, then the Depositor
shall purchase (and, if applicable, the Depositor shall enforce the obligation
of DFS, under the DFS/Ganis Transfer Agreement, or Ganis, under the
Ganis/Depositor Transfer Agreement, to purchase) such Receivable from the Issuer
as of such last day at a price equal to the Purchase Amount of such Receivable,
which price the Depositor shall remit in the manner specified in Section 5.05;
provided that this section is subject to the longer time period for a breach of
Section 3.01(xiii) of the DFS/Ganis Transfer Agreement and Section 3.01(xiii) of
the Ganis/Depositor Transfer Agreement set forth in Section 3.01 of such
agreements; provided, further, however, that the obligation of the Depositor to
purchase any Receivable that arises as a result of a breach of the
representations and warranties of DFS or the Transferor under the DFS/Ganis
Transfer Agreement or the Ganis/Depositor Agreement, as the case may be, is
subject to the payment of the Purchase Amount by DFS or the Transferor in
accordance with the DFS/Ganis Transfer Agreement or the Ganis/Depositor Transfer
Agreement, as the case may be. Subject to the indemnification provisions
contained in the last paragraph of this Section, the sole remedy of the Issuer,
the Owner Trustee, the Indenture Trustee, the Residual Interestholder and the
Noteholders with respect to a breach of representations and warranties of the
Depositor set forth in this Section shall be to require the Depositor to
purchase Receivables pursuant to this Section, subject to the conditions
contained herein; provided that this Section shall not limit the right of the
Servicer, the Owner Trustee or the Indenture Trustee to enforce (or to cause the
Depositor to enforce) the obligation of DFS or the Transferor to
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purchase Receivables pursuant to the DFS/Ganis Transfer Agreement or the
Ganis/Depositor Transfer Agreement, as the case may be.
The Depositor shall indemnify 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 Depositor's representations
and warranties contained in this Agreement; provided that the Depositor 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 the Issuer, the Owner Trustee or the
Indenture Trustee.
SECTION 3.02 Custody of Receivable Files. To assure uniform quality in
servicing the Receivables and to reduce administrative costs, the Issuer hereby
revocably appoints the Servicer, and the Servicer hereby accepts such
appointment, to act for the benefit of the Issuer and the Indenture Trustee as
custodian of the following documents or instruments which are hereby or shall
hereby be constructively delivered to the Indenture Trustee, as pledgee of the
Issuer, as of the Closing Date with respect to each Receivable:
(a) the fully executed original Receivable;
(b) a fully executed assignment of the Receivable in blank or from the
related Dealer to DFS or the Transferor, as the case may be, if such Receivable
was acquired by DFS or the Transferor, as the case may be, from a Dealer.
(c) 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 Receivable pursuant to which the Obligor has agreed to
obtain physical damage insurance for the Financed Asset, or copies thereof;
(d) the Title Document, Lien Certificate or application therefor,
except with respect to Financed Boats that are Federally Documented Boats, 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 or the Transferor with respect to the related Financed
Asset; and
(e) a credit application signed by the Obligor, or a copy
thereof.
Within 120 days after the Closing Date, the Servicer, as custodian,
shall ascertain whether all of the Receivable Files are in its possession, and
shall deliver to the Indenture Trustee a certification ("Final Certification")
substantially in the form attached as Exhibit C hereto. During the term of this
Agreement, in the event the Servicer, as custodian, discovers any defect with
respect to the Receivable File, the Servicer, as custodian, shall give written
specification of such defect to the Indenture Trustee.
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SECTION 3.03 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer shall hold the Receivable Files as
custodian for the benefit of the Issuer and the Indenture Trustee and maintain
such accurate and complete accounts, records and computer systems pertaining to
each Receivable File as shall enable the Issuer to comply with this Agreement.
In performing its duties as custodian the Servicer shall act with reasonable
care, using that degree of skill and attention that the Servicer exercises with
respect to the receivable files relating to all comparable recreational vehicle
or boat receivables that the Servicer services for itself or others. The
Servicer shall conduct, or cause to be conducted, periodic audits of the
Receivable Files held by it under this Agreement and of the related accounts,
records and computer systems, in such a manner as shall enable the Issuer or the
Indenture Trustee to verify the accuracy of the Servicer's record keeping. The
Servicer shall promptly report to the Issuer and the Indenture Trustee any
failure on its part to hold the Receivable Files and maintain its accounts,
records and computer systems as herein provided and shall promptly take
appropriate action to remedy any such failure.
(b) Maintenance of and Access to Records. The Servicer shall maintain
each Receivable File at its office specified in Schedule B or at such other
office as shall be specified to the Issuer and the Indenture Trustee by written
notice not later than 90 days after any change in location. At the time of any
such change of location, the Servicer will deliver to the Indenture Trustee an
opinion of counsel opining that the Indenture Trustee's security interest in the
Receivables remains perfected and of first priority. The Servicer shall make
available to the Issuer and the Indenture Trustee or their respective duly
authorized representatives, attorneys or auditors a list of locations of the
Receivable Files, and access to such Receivable Files and the related accounts,
records and computer systems maintained by the Servicer at such times during
normal business hours as the Issuer or the Indenture Trustee shall instruct.
Access to Receivable Files by Noteholders, Note Owners and the Residual
Interestholder is covered by Section 4.12. Nothing in this Section shall affect
the obligation of the Servicer to observe any applicable law prohibiting
disclosure of information regarding the Obligors and the failure of the Servicer
to provide access to information as a result of such obligation shall not
constitute a breach of this Section.
(c) Release of Documents. Upon written instruction from the Indenture
Trustee, the Servicer shall release any Receivable File to the Indenture
Trustee, the Indenture Trustee's agent or the Indenture Trustee's designee, as
the case may be, at such place or places as the Indenture Trustee may designate,
as soon as practicable following the Servicer's receipt of such written
instruction.
SECTION 3.04 Instructions; Authority To Act. The Servicer shall be
deemed to have received proper instructions with respect to the Receivable Files
upon its receipt of written instructions signed by a Trust Officer of the
Indenture Trustee.
SECTION 3.05 Custodian's Indemnification. The Servicer as custodian
shall indemnify the Trust, the Owner Trustee and the Indenture Trustee and each
of their respective officers,
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directors, employees and agents for any and all liabilities, obligations,
losses, compensatory damages, payments, costs or expenses of any kind whatsoever
that may be imposed on, incurred by or asserted against the Trust, the Owner
Trustee or the Indenture Trustee or any of their respective officers, directors,
employees and agents as the result of any improper act or omission in any way
relating to the maintenance and custody of the Receivable Files by the Servicer
as custodian thereof; provided, however, that the Servicer shall not be liable
to the Owner Trustee for any portion of any such amount resulting from the
willful misfeasance, bad faith or negligence of the Owner Trustee, and the
Servicer shall not be liable to the Indenture Trustee for any portion of any
such amount resulting from the willful misfeasance, bad faith or negligence of
the Indenture Trustee.
SECTION 3.06 Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Cutoff Date and shall
continue in full force and effect until terminated pursuant to this Section. If
DFS shall resign as Servicer in accordance with Article VII of this Agreement or
if all of the rights and obligations of any Servicer shall have been terminated
pursuant to Section 8.01, the appointment of such Servicer as custodian shall be
terminated by the Indenture Trustee or by the Holders of Notes evidencing not
less than 25% of the Outstanding Amount of the Notes (or, if Notes have been
paid in full, by the Owner Trustee or by the Residual Interestholder, in the
same manner as the Indenture Trustee or such Holders of Notes may terminate the
rights and obligations of the Servicer under Section 8.01). The Indenture
Trustee or, with the consent of the Indenture Trustee, the Owner Trustee may
terminate the Servicer's appointment as custodian, with cause, at any time upon
written notification to the Servicer and, without cause, upon 30 days' prior
written notification to the Servicer. As soon as practicable after any
termination of such appointment, the Servicer shall deliver the Receivable Files
to the Indenture Trustee or the Indenture Trustee's agent at such place or
places as the Indenture Trustee may reasonably designate.
ARTICLE IV
Administration and Servicing of Receivables
SECTION 4.01 Duties of Servicer. The Servicer, for the benefit of the
Issuer (to the extent provided herein), shall manage, service, administer and
make collections on the Receivables (other than Purchased Receivables) with
reasonable care, using that degree of skill and attention that the Servicer
exercises with respect to all comparable recreational vehicle or boat
receivables, as applicable, that it services for itself or others. The
Servicer's duties shall include collection and posting of all payments,
responding to inquiries of Obligors on such Receivables, investigating
delinquencies, sending payment coupons to Obligors, reporting tax information to
Obligors, accounting for collections, furnishing monthly and annual statements
to the Owner Trustee and the Indenture Trustee with respect to distributions and
making Advances pursuant to Section 5.04. Subject to the provisions of Section
4.02, the Servicer shall follow its customary standards, policies and procedures
in performing its duties as Servicer. Without limiting the generality of the
foregoing, the Servicer is authorized and empowered to execute and
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deliver, on behalf of itself, the Issuer, the Owner Trustee, the Indenture
Trustee, the Noteholders, the Residual Interestholder or any of them, any and
all instruments of satisfaction or cancellation, or partial or full release or
discharge, and all other comparable instruments, with respect to such
Receivables or to the Financed Assets securing such Receivables. If the Servicer
shall commence a legal proceeding to enforce a Receivable, the Issuer (in the
case of a Receivable other than a Purchased Receivable) shall thereupon be
deemed to have automatically assigned, solely for the purpose of collection,
such Receivable to the Servicer. If in any enforcement suit or legal proceeding
it shall be held that the Servicer may not enforce a Receivable on the grounds
that it shall not be a real party in interest or a holder entitled to enforce
such Receivable, the Owner Trustee shall, at the Servicer's expense and
direction, take steps to enforce such Receivable, including bringing suit in its
name or the name of the Owner Trustee, the Indenture Trustee, the Residual
Interestholder or the Noteholders. The Owner Trustee shall upon the written
request of the Servicer furnish the Servicer with any powers of attorney and
other documents reasonably necessary or appropriate to enable the Servicer to
carry out its servicing and administrative duties hereunder.
SECTION 4.02 Collection and Application of Receivable Payments. The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Receivables as and when the same shall become
due and shall follow such collection procedures as it follows with respect to
all comparable recreational vehicle or boat receivables that it services for
itself or others. Subject to the foregoing, the Servicer may grant extensions,
rebates or adjustments on a Receivable, which shall not, for the purposes of
this Agreement, modify the original due dates (except that DFS as Servicer may,
for administrative purposes, modify the due date of a Receivable to a different
date in the same month, which date shall be reflected in its servicing records)
or amounts of the originally scheduled payments of interest on Receivables;
provided, however, that if the Servicer extends the date for final payment by
the Obligor of any Receivable beyond the end of the Collection Period preceeding
the latest Final Scheduled Payment Date, it shall promptly purchase the
Receivable from the Issuer in accordance with the terms of Section 4.07. The
Servicer may in its discretion waive any late payment charge or any other fees
that may be collected in the ordinary course of servicing a Receivable. The
Servicer shall not agree to any alteration of the interest rate or the
originally scheduled payments on any Receivable. The Servicer shall apply
payments by or on behalf of Obligors in accordance with Section 5.03.
SECTION 4.03 Realization upon Receivables. On behalf of the Issuer, the
Servicer shall use its best efforts, consistent with its customary servicing
procedures, to repossess or otherwise convert the ownership of the Financed
Assets securing any Receivable as to which the Servicer shall have determined
eventual payment in full is unlikely. The Servicer shall follow such customary
and usual practices and procedures as it shall deem necessary or advisable in
its servicing of the Receivables, which may include reasonable efforts to
realize upon any recourse to Dealers and selling the Financed Asset at public or
private sale. The Servicer shall be entitled to reimbursement out of recoveries
on such Defaulted Receivable for its reasonable, out-of-pocket costs and
expenses incurred in realizing upon any Financed Asset securing any Receivable
that becomes a Defaulted Receivable or in attempting to repossess any Financed
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Asset and in prosecuting legal action against any Obligor in respect of any
Receivable. The foregoing shall be subject to the provision that, in any case in
which the Financed Asset shall have suffered damage, (i) the Servicer shall not
expend funds in connection with the repair or the repossession of such Financed
Asset unless it shall determine in its discretion that such repair and/or
repossession shall increase the Liquidation Proceeds by an amount greater than
the amount of its expenses in connection with such repair and/or repossession,
and (ii) the Servicer may, subject to Section 4.01, allow Obligors to use the
proceeds of the applicable Insurance Policy to repair or replace such Financed
Asset rather than to prepay the related Receivable.
SECTION 4.04 Physical Damage Insurance. The Servicer shall, in
accordance with its customary servicing procedures, require that each Obligor
shall have obtained physical damage insurance covering the Financed Asset as of
the execution of the Receivable.
SECTION 4.05 Maintenance of Security Interests in Financed Assets. The
Servicer shall, in accordance with its customary servicing procedures, take such
steps as are necessary to maintain perfection of the security interest created
by each Receivable in the related Financed Asset (except for certain horse
trailers). The Servicer is hereby authorized to take such steps as are necessary
to re-perfect such security interest on behalf of the Issuer and the Indenture
Trustee in the event of the relocation of a Financed Asset or for any other
reason.
With respect to each Federally Documented Boat, the Servicer shall
cause an Assignment of Preferred Mortgage (with a completed Schedule 1) to be
duly filed with the Coast Guard, in each case no later than 180 days after the
Closing Date, evidencing the assignment of the security interest in such
Federally Documented Boat from Ganis or DFS, as applicable, to the Boat Mortgage
Trustee.
SECTION 4.06 Covenants of Servicer. The Servicer shall not release the
Financed Asset securing any Receivable from the security interest granted by
such Receivable in whole or in part (except in the event of payment in full by
the Obligor thereunder or repossession, or except as ordered by a court of
competent jurisdiction), nor shall the Servicer impair the rights of the Issuer,
the Indenture Trustee, the Residual Interestholder or the Noteholders in such
Receivable, nor shall the Servicer increase the number of scheduled payments due
under a Receivable.
SECTION 4.07 Purchase of Receivables upon Breach. The Servicer or the
Owner Trustee shall inform the other party and the Indenture Trustee and the
Depositor promptly, in writing, upon the discovery of any breach of the
Servicer's obligations under Section 4.02, 4.05 or 4.06. Unless the breach shall
have been cured by the last day of the second Collection Period following such
discovery (or, at the Servicer's election, the last day of the first following
Collection Period), the Servicer shall purchase from the Trust any Receivable
materially and adversely affected by such breach as of such last day; provided,
that, with respect to any Federally Documented Boat for which an Assignment of
Preferred Mortgage has not been filed with the Coast Guard as contemplated by
Section 4.05, the Servicer shall, on the first Business Day following the 180th
day after the Closing Date, purchase the related Receivable from the Trust, with
the Purchase Amount thereof to be calculated as of the last day of the related
9
Collection Period. If the Servicer takes any action during any Collection Period
pursuant to Section 4.02 that impairs the rights of the Issuer, the Indenture
Trustee, the Noteholders or the Residual Interestholder in any Receivable or as
otherwise provided in Section 4.02, the Servicer shall purchase such Receivable
from the Trust as of the close of business on the last day of such Collection
Period. In consideration of the purchase of any such Receivable pursuant to
either of the two preceding sentences, the Servicer shall remit the Purchase
Amount in the manner specified in Section 5.05. Subject to Section 7.02, the
sole remedy of the Issuer, the Owner Trustee, the Indenture Trustee, the
Noteholders or the Residual Interestholder with respect to a breach pursuant to
Section 4.02, 4.05 or 4.06 shall be to require the Servicer to purchase
Receivables pursuant to this Section. The Owner Trustee and the Indenture
Trustee shall have no duty to conduct any affirmative investigation as to the
occurrence of any condition requiring the purchase of any Receivable pursuant to
this Section. The Servicer shall notify each of the Rating Agencies upon filing
the Assignments of Preferred Mortgages with the Coast Guard.
SECTION 4.08 Servicing Fee. The Servicing Fee for each Monthly Payment
Date shall equal the product of (a) one-twelfth, (b) the Servicing Fee Rate and
(c) the Pool Balance as of the first day of the preceding Collection Period. The
Servicer shall also be entitled to keep all late fees, prepayment charges and
other administrative fees or similar charges provided for under the Receivables
or allowed by applicable law, in each case, to the extent not prohibited by
applicable law, collected (from whatever source) on the Receivables, plus any
reimbursement pursuant to the last paragraph of Section 7.02, plus amounts
distributed from the Reserve Account in accordance with Section 5.07(c).
SECTION 4.09 Servicer's Certificate. At least two Business Days prior
to each Determination Date the Servicer shall provide to the Indenture Trustee
sufficient information relating to the Receivables for the applicable Collection
Period to enable the Indenture Trustee to prepare Section VII of the Servicer's
Certificate. Not later than 11:00 A.M. (New York time) on each Determination
Date, the Servicer shall deliver to the Owner Trustee, each Paying Agent, the
Indenture Trustee and the Depositor, with a copy to the Rating Agencies, a
Servicer's Certificate containing all information necessary to make the
distributions to be made on the related Monthly Payment Date pursuant to
Sections 5.05 and 5.06 for the related Collection Period. Receivables to be
purchased by the Servicer, the Depositor, DFS or the Transferor shall be
identified by the Servicer by account number with respect to such Receivable (as
specified in the Schedule of Receivables).
SECTION 4.10 Annual Statement as to Compliance; Notice of Default.
(a) The Servicer shall deliver to the Owner Trustee and the Indenture
Trustee, on or before April 15 of each year beginning in 2002, an Officer's
Certificate, dated as of December 31 of the preceding year, stating that (i) a
review of the activities of the Servicer during the preceding 12 month period
(or such shorter period as shall have elapsed since the Closing Date) and of its
performance under this Agreement has been made under the supervision of the
officers of the Servicer signing such Officer's Certificate and (ii) to the best
of such officers' knowledge, based on such review, the Servicer has fulfilled
all its obligations under this Agreement
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throughout such year or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officers and the
nature and status thereof. The Indenture Trustee shall send a copy of such
certificate and the report referred to in Section 4.11 to the Rating Agencies. A
copy of such certificate and the report referred to in Section 4.11 may be
obtained by any Noteholder, Note Owner or the Residual Interestholder by a
request in writing to the Owner Trustee addressed to the Corporate Trust Office.
Upon the telephone request of the Owner Trustee, the Indenture Trustee shall
promptly furnish the Owner Trustee a list of Noteholders as of the date
specified by the Owner Trustee.
(b) The Servicer shall deliver to the Owner Trustee, the Indenture
Trustee and the Rating Agencies, promptly after having obtained knowledge
thereof, but in no event later than five (5) Business Days thereafter, written
notice in an Officer's Certificate of any event which is or which with the
giving of notice or lapse of time, or both, would become, a Servicer Default
under Section 8.01(a) or (b).
SECTION 4.11 Annual Independent Certified Public Accountants' Report.
The Servicer shall cause a firm of nationally recognized "independent certified
public accountants" (within the meaning of the Code of Professional Ethics of
the American Institute of Certified Public Accountants), which may also render
other services to the Servicer, the Depositor or their Affiliates, to deliver to
the Owner Trustee and the Indenture Trustee on or before April 15 of each year
beginning in 2002, a report addressed to the Board of Directors of the Servicer,
to the effect that (a) such firm has examined certain documents and records of
the Servicer relating to the servicing of Receivables under this Agreement
during the preceding calendar year (or, in the case of the first such report,
during the period from the Closing Date through the end of 2001), (b) such
examination (i) was made in accordance with generally accepted auditing
standards and accordingly included such tests and auditing procedures as such
firm considered necessary in the circumstances, and (ii) included tests relating
to recreational vehicle or boat loans serviced for others in compliance with the
minimum servicing standards identified in the Mortgage Bankers Association of
America's Uniform Single Attestation Program for Mortgage Bankers (the
"Program"), to the extent such standards are applicable to the servicing
obligations set forth in this Agreement, (c) management of the Servicer has
asserted to such firm that the Servicer has complied with the minimum servicing
standards identified in the Program to the extent that such standards are
applicable to the servicing obligations set forth in this Agreement, and (d) in
the opinion of such firm, such assertion of the Servicer's management is correct
(or, if such assertion of the Servicer's management is not correct, stating why
such assertion is not correct).
SECTION 4.12 Access to Certain Documentation and Information Regarding
Receivables. The Servicer shall provide to the Noteholders, Note Owners, and the
Residual Interestholder access to the Receivable Files in such cases where the
Noteholders, Note Owners, or the Residual Interestholder, as applicable, shall
be required by applicable statutes or regulations to review such documentation.
Access shall be afforded without charge, but only upon reasonable request and
during the normal business hours at the offices of the Servicer. Nothing in this
Section shall affect the obligation of the Servicer to observe any applicable
law prohibiting disclosure of information regarding the Obligors and the failure
of the Servicer to
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provide access to information as a result of such obligation shall not
constitute a breach of this Section.
The Servicer shall provide to the Noteholders, Note Owners, and the
Residual Interestholder and any supervisory agents or examiners which may relate
to the Noteholders, Note Owners, or the Residual Interestholder, including the
Office of Thrift Supervision, the Office of the Comptroller of the Currency or
the FDIC and other similar entities, access to any documentation regarding the
Receivables which may be required by any applicable regulations. Such access
shall be afforded without charge, upon reasonable request, during normal
business hours and at the offices of the Servicer, all in accordance with
federal government, the FDIC, the Office of Thrift Supervision, the Office of
the Comptroller of the Currency or any other similar regulations.
SECTION 4.13 Servicer Expenses. The Servicer shall be required to pay
all expenses incurred by it in connection with its activities hereunder,
including fees and disbursements of independent accountants, taxes imposed on
the Servicer and expenses incurred by the Servicer in connection with
distributions and reports to Noteholders.
SECTION 4.14 Appointment of Subservicer. The Servicer may at any time
appoint a subservicer to perform all or any portion of its obligations as
Servicer hereunder including but not limited to its obligations as custodian as
set forth in Article III hereof. Prior to the appointment of any subservicer
other than the Transferor, the Servicer shall cause the Rating Agency Condition
to have been satisfied in connection therewith. Notwithstanding the appointment
of any subservicer (including but not limited to the Transferor), the Servicer
shall remain obligated and be liable to the Issuer, the Owner Trustee, the
Indenture Trustee, the Noteholders and the Residual Interestholder for the
servicing, administering and custodianship of the Receivables in accordance with
the provisions hereof without diminution of such obligation and liability by
virtue of the appointment of such subservicer and to the same extent and under
the same terms and conditions as if the Servicer alone were servicing and
administering and acting as custodian of the Receivables. The fees and expenses
of the subservicer shall be as agreed between the Servicer and its subservicer
from time to time, and none of the Issuer, the Owner Trustee, the Indenture
Trustee, the Noteholders or the Residual Interestholder shall have any
responsibility therefor.
SECTION 4.15 Fidelity Bond; Errors and Omissions Insurance. The
Servicer shall maintain, at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy, with broad coverage with responsible
companies on all officers, employees or other persons acting in any capacity
with regard to the Receivables to handle funds, money, documents and papers
relating to the Receivables. Any such fidelity bond and errors and omissions
insurance shall protect and insure the Servicer against losses, including
forgery, theft, embezzlement, fraud, errors and omissions and negligent acts of
such persons. Such fidelity bond shall also protect and insure the Servicer
against losses in connection with any failure to maintain insurance policies
required pursuant to this Agreement and the release or satisfaction of a
Receivable without having obtained payment in full of the indebtedness secured
thereby. No
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provision of this Section 4.15 requiring such fidelity bond and errors and
omissions insurance shall diminish or relieve the Servicer from its duties and
obligations as set forth in this Agreement. The coverage under any such bond and
insurance policy shall be in such amounts as are customary for the business of
servicing recreational vehicle receivables.
ARTICLE V
Distributions; Statements to Noteholders
SECTION 5.01 Establishment of Trust Accounts.
(a)(i) The Indenture Trustee, for the benefit of the
Noteholders and the Residual Interestholder, shall establish and
maintain in the name of the Indenture Trustee an Eligible Deposit
Account (the "Collection Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of
the Noteholders and Residual Interestholder.
(ii) The Indenture Trustee, for the benefit of the
Noteholders, shall establish and maintain in the name of the Indenture
Trustee an Eligible Deposit Account (the "Note Distribution Account"),
bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Noteholders.
(iii) The Indenture Trustee, for the benefit of the
Noteholders, shall establish and maintain in the name of the Indenture
Trustee a subaccount to the Note Distribution Account (the "Principal
Distribution Account"), bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the
Noteholders.
(iv) The Indenture Trustee, for the benefit of the Noteholders
and the Servicer, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account (the "Reserve Account"),
bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Noteholders and the Servicer.
(b) Subject to Section 8.03 of the Indenture, funds on deposit in the
Collection Account and the Reserve Account (the Collection Account and the
Reserve Account being referred to collectively, with the Note Distribution
Account, as the "Trust Accounts") shall be invested by the Indenture Trustee in
Eligible Investments selected in writing by the Servicer, in each case pursuant
to a direction of the Servicer which shall contain a certification that the
requested investment constitutes an Eligible Investment and is permitted to be
made hereby by the Indenture Trustee. It is understood and agreed that the
Indenture Trustee shall not be liable for any loss arising from an investment in
Eligible Investments made in accordance with this Section 5.01(b) except to the
extent that the Indenture Trustee is the obligor of such Eligible Investments,
unless such loss is occasioned by a reduction in the market price of such
investment
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and not by default of the Indenture Trustee in its capacity as obligor. All such
Eligible Investments shall be held by the Indenture Trustee for the benefit of
the Noteholders and the Residual Interestholder (or for such of such holders for
whose benefit the applicable account is maintained). All Investment Earnings
with respect to amounts on deposit in a Trust Account shall be added to the
balance of funds on deposit in such Trust Account, subject to application of
funds on deposit in such Trust Account pursuant to the applicable Basic
Document. Other than as permitted by the Rating Agencies, funds on deposit in
the Collection Account and the Reserve Account shall be invested in Eligible
Investments that shall mature (A) not later than the Business Day immediately
preceding the next Monthly Payment Date or (B) on such next Monthly Payment Date
if either (x) such investment is held in the trust department of the institution
with which each of the Collection Account and the Reserve Account is then
maintained and is invested in a time deposit of such institution that is rated
at least A-1 by Standard & Poor's, F1+ by Fitch and P-1 by Moody's or (y) DFS
(so long as the short-term unsecured debt obligations of DFS are either (i)
rated at least F1+ by Fitch, A-1 by Standard & Poor's and P-1 by Moody's on the
date such investment is made or (ii) guaranteed by an entity whose short-term
unsecured debt obligations are rated at least F1+ by Fitch, A-1 by Standard &
Poor's and P-1 by Moody's on the date such investment is made) has agreed to
advance funds on such Monthly Payment Date to the Principal Distribution Account
in the amount payable on such investment on such Monthly Payment Date pending
receipt thereof to the extent necessary to make distributions on such Monthly
Payment Date. The guarantee referred to in clause (y) of the preceding sentence
shall be subject to the Rating Agency Condition. For the purpose of the
foregoing, unless DFS affirmatively agrees in writing with the Indenture Trustee
to make such advance with respect to such investment prior to the time an
investment is made, it shall not be deemed to have agreed to make such advance.
Funds deposited in a Trust Account on a day which immediately precedes a Monthly
Payment Date upon the maturity of any Eligible Investments are not required to
be invested overnight. Funds on deposit in the Principal Distribution Account
shall not be invested.
(c)(i) The Indenture Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Trust Accounts and in
all proceeds thereof (including all income thereon) and all such funds,
investments, proceeds and income shall be part of the Trust Estate. The Trust
Accounts shall be under the sole dominion and control of the Indenture Trustee
for the benefit of the Noteholders and the Residual Interestholder (or for such
of such holders for whose benefit the applicable account is maintained). If, at
any time, any of the Trust Accounts ceases to be an Eligible Deposit Account,
the Indenture 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 Trust Account as an Eligible Deposit
Account and shall transfer any cash and/or any investments to such new Trust
Account.
(ii) With respect to the Trust Account Property, the Indenture Trustee
agrees, by its acceptance hereof, that:
(A) any Trust Account Property that is held in
deposit accounts shall be held solely in the Eligible Deposit
Accounts, subject to the last sentence of
14
Section 5.01(c)(i); and each such Eligible Deposit Account
shall be subject to the exclusive custody and control of the
Indenture Trustee, and the Indenture Trustee shall have sole
signature authority with respect thereto;
(B) any Trust Account Property that constitutes a
Certificated Item (other than a Clearing Corporation Item,
Euroclear Item or Clearstream Item) or Instrument shall be
registered in the name of the Indenture Trustee or endorsed to
the Indenture Trustee or in blank by an authorized person,
with signature guaranteed, and the Indenture Trustee shall
maintain continuous possession of such Certificated Item or
Instrument on behalf of the Trust in the State of New York;
(C) any Trust Account Property that constitutes an
Uncertificated Item (except those Uncertificated Items
consisting of Clearing Corporation Items) shall be
continuously registered on the books of the issuer thereof to
the Indenture Trustee;
(D) in the case of any Trust Account Property that
constitutes a Clearing Corporation Item, the Indenture Trustee
shall cause (i) the relevant Clearing Corporation to make
appropriate entries on its books increasing the appropriate
securities account of the Indenture Trustee at such Clearing
Corporation by the amount of such Clearing Corporation Item,
and (ii) such Clearing Corporation Item to be (1) continuously
registered to the Clearing Corporation or its custodian or the
nominee of either subject to the exclusive control of such
Clearing Corporation (in the case of a Clearing Corporation
Item that is an Uncertificated Item) or continuously
maintained in the State of New York in the possession of such
Clearing Corporation or its custodian or the nominee of either
subject to the exclusive control of such Clearing Corporation
(in the case of a Clearing Corporation Item that is a
Certificated Item), and (2) continuously identified on the
books and records of such Clearing Corporation for the sole
and exclusive account of the Indenture Trustee;
(E) in the case of any Trust Account Property that
constitutes a Euroclear Item, the Indenture Trustee shall
cause (i) Euroclear to make appropriate entries on its books
increasing the appropriate securities account of the Indenture
Trustee's client securities account at Euroclear and to send
confirmation to the Indenture Trustee that Euroclear is
holding such Euroclear Item for the account of the Indenture
Trustee, and (ii) such Euroclear Item to be (1) continuously
registered to Euroclear, and (2) continuously identified on
the books and records of Euroclear for the sole and exclusive
account of the Indenture Trustee;
(F) in the case of any Trust Account Property that
constitutes a Clearstream Item, the Indenture Trustee shall
cause (i) Clearstream to make
15
appropriate entries on its books transferring each such
Clearstream Item to the Indenture Trustee's client securities
account at Clearstream and to send confirmation to the
Indenture Trustee that Clearstream is holding such Clearstream
Item for the account of the Indenture Trustee, and (ii) such
Clearstream Item to be (1) continuously registered to
Clearstream, and (2) continuously identified on the books and
records of Clearstream for the sole and exclusive account of
the Indenture Trustee;
(G) in the case of any Trust Account Property that
constitutes a Government Item, the Indenture Trustee shall
cause (i) the transfer of such Government Item to one or more
book-entry accounts for the Indenture Trustee at the Federal
Reserve Bank of New York, and (ii) such Government Item to be
continuously identified in one or more book-entry accounts for
the Indenture Trustee at the Federal Reserve Bank of New York;
and
(H) without limiting the foregoing, the Servicer
shall instruct the Indenture Trustee to take such different or
additional action as may be, based on an Opinion of Counsel of
the Servicer, reasonably appropriate in order to maintain the
perfection and priority of the security interest of the
Indenture Trustee in the Trust Account Property under
applicable law, including Articles 8 and 9 of the UCC and
regulations of the U.S. Department of the Treasury governing
transfers of interests in Government Items, and the Indenture
Trustee shall cooperate with the Servicer in connection
therewith.
(iii) The Servicer shall have the power, revocable by the
Indenture Trustee or by the Owner Trustee with the consent of the
Indenture Trustee, to make withdrawals and payments from the Trust
Accounts (other than the Principal Distribution Account) for the
purpose of permitting the Servicer or the Owner Trustee to carry out
its respective duties hereunder or permitting the Indenture Trustee to
carry out its duties under the Indenture.
All references in this Section 5.01 (or in terms defined in Appendix A
and used without definition in this Section 5.01) to the UCC shall be to the UCC
as in effect in the State of New York, as amended from time to time.
SECTION 5.02 Collections. (a) The Servicer shall remit within two
Business Days of receipt thereof to the Collection Account all payments by or on
behalf of the Obligors with respect to the Receivables (other than Purchased
Receivables) and all Liquidation Proceeds, both as collected during each
Collection Period. For purposes of this Article V the phrase "payments by or on
behalf of Obligors" shall mean payments made with respect to the Receivables or
the Financed Assets by Persons other than the Servicer, DFS, the Transferor or
the Depositor.
(b) Notwithstanding anything in this Agreement to the contrary, if (i)
DFS is the Servicer, (ii) no Servicer Default has occurred and is continuing and
(iii) (x) DFS continues to be majority owned by Deutsche Bank Americas Holding
Corporation, or (y) DFS arranges for and
16
maintains a letter of credit or other form of credit enhancement for the benefit
of the Trust in respect of the Servicer's obligations to make deposits of
payments and Liquidation Proceeds in the Collection Account that is acceptable
in form and substance to each Rating Agency or (z) 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 payments and Liquidation Proceeds into the Collection Account as provided in
Section 5.02(a), but may make a single deposit into the Collection Account in
same-day funds not later than 2:00 p.m., New York City time, on each
Determination 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 in Section 5.02(a) the Servicer shall have delivered to the Indenture
Trustee (i) written confirmation from each of the Rating Agencies that the
failure by DFS to make daily deposits shall not result in a qualification,
reduction or withdrawal of the rating of any outstanding Notes and (ii) a
certificate of a vice president or other officer of the Servicer stating that
all conditions described in this paragraph to the cessation of the Servicer's
duty to make daily deposits have been satisfied. If (i) DFS is no longer the
Servicer, (ii) a Servicer Default has occurred and is continuing, (iii) any
Rating Agency shall notify the Servicer that the letter of credit or other form
of credit enhancement described in the previous sentence is not satisfactory to
such Rating Agency or (iv) any Rating Agency shall revoke its confirmation
described in the previous sentence or DFS shall fail to comply with any
limitations in any such confirmation, then (x) the Servicer shall comply with
Section 5.02(a) until such time as the conditions described in the previous
sentence have been satisfied and (y) DFS promptly shall notify the Indenture
Trustee as to the failure of such conditions to be satisfied.
(c) If (i) the Servicer makes a deposit into the Collection Account in
respect of a payment of a Receivable and such payment 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 payment and deposits
an amount that is less than or more than the actual amount of such payment, 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.
(d) As an administrative convenience, unless the Servicer is required
to remit payments daily pursuant to Section 5.02(a) (taking into effect Section
5.02(b)), the Servicer may make the deposit of payments by or on behalf of
Obligors, Advances and Purchase Amounts for or with respect to the related
Collection Period out of distributions to be made to the Servicer with respect
to such Collection Period. However, the Servicer shall account to the Owner
Trustee, the Indenture Trustee, the Noteholders and the Residual Interestholder
as if all deposits, distributions and transfers were made individually.
SECTION 5.03 Application of Collections. All payments by or on behalf
of Obligors for any Collection Period shall be applied by the Servicer as
follows: (a) first, payments by or on behalf of the Obligors (other than with
respect to Purchased Receivables) shall be applied to reduce Outstanding
Advances to the extent described in Section 5.04; and (b) second, any excess
17
shall be applied to interest and principal on the Receivables in accordance with
the Simple Interest Method; and (c) third, any remaining amounts shall be
applied to any late fees and other charges in accordance with the customary
servicing procedures that the Servicer follows with respect to all comparable
recreational vehicle and boat receivables, as applicable, that it services for
itself or others.
SECTION 5.04 Advances. As of the close of business on the last day of
each Collection Period, subject to the last sentence of this Section, the
Servicer shall advance an amount equal to the amount of interest due on the
Receivables at their respective APRs for such Collection Period (assuming the
Receivables pay on their respective due dates) minus the amount of interest
actually received by the Servicer on the Receivables during such Collection
Period (such amount, an "Advance"). Any Advance shall increase Outstanding
Advances. If such calculation (i.e., the subtraction of the amount of interest
due on the Receivables at their respective APRs for the related Collection
Period (assuming the Receivables pay on their respective due dates) from the
amount of interest actually received on the Receivables during the related
Collection Period) results in a negative number, an amount equal to the absolute
value of such negative number shall be paid to the Servicer (out of funds that
otherwise would be deposited in the Collection Account) and the amount of
Outstanding Advances shall be reduced by such amount, in each case in accordance
with Section 5.03. In addition, in the event that a Receivable becomes a
Defaulted Receivable, Liquidation Proceeds with respect to such Receivable
attributable to accrued and unpaid interest thereon (but not including interest
for the then current Collection Period) shall be paid to (or retained by) the
Servicer (out of funds that otherwise would be deposited in the Collection
Account) to reduce Outstanding Advances.
Notwithstanding the foregoing, the Servicer shall not make any Advance:
(i) unless the Servicer, in its sole discretion, believes that the Servicer
shall be reimbursed for such Advance as contemplated by this Section; (ii) in
respect of principal of the Receivables; or (iii) in respect of a Defaulted
Receivable or a Purchased Receivable.
SECTION 5.05 Additional Deposits. The Servicer shall deposit in the
Collection Account on or before 2:00 p.m. New York time on the Determination
Date following each Collection Period the related Advance pursuant to Section
5.04. The Servicer and the Depositor shall deposit or cause to be deposited in
the Collection Account the aggregate Purchase Amount with respect to Purchased
Receivables and the Servicer shall deposit therein all amounts to be paid under
Section 9.01, in each case on or prior to 2:00 p.m. New York time on the
Determination Date following the Collection Period as of which such purchase is
made by the Servicer, DFS, the Transferor or the Depositor, as the case may be.
In addition, any other deposits required to be made by the Depositor or the
Servicer to the Collection Account and which are not otherwise provided for by
Section 5.02 or by the other provisions of this Section 5.05 shall be made on or
prior to 2:00 p.m. New York time on the Determination Date following the related
Collection Period.
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SECTION 5.06 Distributions. No later than one Business Day prior to
each Monthly Payment Date, the Servicer will cause the Total Distribution Amount
to be deposited into the Collection Account. On or before each Monthly Payment
Date, the Servicer will instruct the Indenture Trustee to make a withdrawal from
the Reserve Account and deposit into the Collection Account an amount equal to
the lesser of:
(i) the amount, if any, by which (a) the Total Required
Payment exceeds (b) the Total Distribution Amount for such Monthly
Payment Date; and
(ii) the amount of cash or other immediately available funds
in the Reserve Account on such Monthly Payment Date.
On each Determination Date, the Servicer will determine the amount in
the Collection Account for distribution on the related Monthly Payment Date and
will notify the Indenture Trustee in writing. Payments to Noteholders will be
made on each Monthly Payment Date in accordance with that determination, and in
accordance with Section 8.02 of the Indenture.
SECTION 5.07 Reserve Account.
(a) On the Closing Date, the Depositor shall deposit (or cause to be
deposited) in the Reserve Account cash in an amount equal to $1,323,668. Amounts
in the Reserve Account on any Monthly Payment Date (after giving effect to all
distributions to be made on such Monthly Payment Date) in excess of the Reserve
Account Required Amount for such Monthly Payment Date shall be paid to the
Depositor.
(b) Amounts on deposit in the Reserve Account shall be invested by the
Indenture Trustee at the direction of the Servicer in Eligible Investments, and
investment earnings, net of losses and investment expenses, therefrom shall be
deposited by the Indenture Trustee into the Collection Account on each Monthly
Payment Date.
SECTION 5.08 Statements to Noteholders. At least three Business Days
prior to each Monthly Payment Date, the Servicer shall provide to the Indenture
Trustee and the Owner Trustee (with a copy to each Paying Agent) information
relating to the Receivables for the applicable Collection Period in order that
the Indenture Trustee may perform the requisite calculations and forward to each
Noteholder of record as of the most recent Record Date a statement substantially
in the form of Exhibit A setting forth the information specified in such Exhibit
and the following information as to the Notes to the extent applicable:
(i) the amount of distributions to be made on such Monthly
Payment Date allocable to principal of each Class of Notes;
(ii) the amount of such distributions to be made on such
Monthly Payment Date allocable to interest on or with respect to each
Class of Notes;
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(iii) the outstanding principal balance of each Class of Notes
and the Note Pool Factor for each such Class, after giving effect to
payments allocated to principal reported under clause (i) above;
(iv) the amount of the Servicing Fee paid to the Servicer with
respect to the related Collection Period or Collection Periods, as the
case may be;
(v) the amount of Realized Losses, if any, with respect to the
related Collection Period;
(vi) the balance of the Reserve Account on such Monthly
Payment Date after giving effect to deposits and withdrawals to be made
on such Monthly Payment Date, if any;
(vii) the Pool Balance as of the close of business on the last
day of the preceding Collection Period; and
(viii) the Noteholders' Interest Carryover Shortfall, if any,
and the change in such amounts from the preceding statement
Each amount set forth on the Monthly Payment Date statement
under clauses (i), (ii), (iv) and (viii) above shall be expressed as a
dollar amount per $1,000 of original principal balance of a Note.
ARTICLE VI
The Depositor
SECTION 6.01 Representations of Depositor. The Depositor makes the
following representations on which 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 Receivables to the Issuer and
the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) Organization and Good Standing. The Depositor 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. The Depositor 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.
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(c) Power and Authority. The Depositor has the corporate power and
authority to execute and deliver this Agreement and to carry out its respective
terms; the Depositor has full power and authority to transfer and assign the
property to be transferred and assigned to and deposited with the Issuer, and
the Depositor shall have duly authorized such transfer and assignment to the
Issuer by all necessary corporate action; and the execution, delivery and
performance of this Agreement by the Depositor has been duly authorized by the
Depositor by all necessary corporate action.
(d) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of the Depositor enforceable in accordance with its terms.
(e) No Violation. The consummation of the transactions contemplated by
this Agreement by the Depositor and the fulfillment of the terms hereof by the
Depositor 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 the Depositor, or any
indenture, agreement or other instrument to which the Depositor 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 Depositor's knowledge, any order, rule or regulation
applicable to the Depositor of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
(f) No Proceedings. To the Depositor's best knowledge, there are no
proceedings or investigations pending or threatened before any court, regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties: (i) asserting the invalidity
of this Agreement, the Indenture or any of the other Basic Documents, the Notes
or the Residual Interest, (ii) seeking to prevent the issuance of the Notes or
the Residual Interest 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 the Depositor of its obligations under, or
the validity or enforceability of, this Agreement, the Indenture, any of the
other Basic Documents, the Notes or the Residual Interest or (iv) which might
adversely affect the federal or state income tax attributes of the Notes or the
Residual Interest.
(g) Chief Executive Office. The chief executive office of the Depositor
is located at 655 Maryville Centre Drive, St. Louis, Missouri 63141.
SECTION 6.02 Corporate Existence. During the term of this Agreement,
the Depositor 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
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agreement necessary or appropriate to the proper administration of this
Agreement and the transactions contemplated hereby. In addition, all
transactions and dealings between the Depositor and its Affiliates shall be
conducted on an arm's-length basis.
SECTION 6.03 Liability of the Depositor. The Depositor shall be liable
in accordance herewith only to the extent of the obligations specifically
undertaken by the Depositor under this Agreement.
SECTION 6.04 Indemnification. (a) The Depositor shall indemnify, defend
and hold harmless the Issuer, the Owner Trustee, the Indenture Trustee and any
of the officers, directors, employees and agents of the Issuer, the Owner
Trustee and the Indenture Trustee from and against any taxes that may at any
time be asserted against any such Person with respect to the transactions
contemplated herein and in the other Basic Documents (except any income taxes
arising out of fees paid to the Owner Trustee and the Indenture Trustee),
including any sales, gross receipts, general corporation, tangible personal
property, privilege or license taxes (but, in the case of the Issuer, not
including any taxes asserted with respect to, and as of the date of, the
transfer of the Receivables to the Issuer 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 arising out of distributions
on the Notes and the Residual Interest) and costs and expenses in defending
against the same.
(b) The Depositor shall indemnify, defend and hold harmless the Issuer,
the Owner Trustee, the Indenture Trustee, the Noteholders and Residual
Interestholder and any of the officers, directors, employees and agents of the
Issuer, the Owner Trustee and the Indenture Trustee from and against any loss,
liability or expense incurred by reason of (i) the Depositor's willful
misfeasance, 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 and (ii) the Depositor's or the Issuer's violation of
federal or state securities laws in connection with the offering and sale of the
Notes or the Residual Interest.
(c) The Depositor shall indemnify, defend and hold harmless the Owner
Trustee and the Indenture Trustee and their respective officers, directors,
employees and agents from and against all costs, expenses, losses, claims,
damages and liabilities arising out of or incurred in connection with the
acceptance or performance of the trusts and duties herein and in the Trust
Agreement contained, in the case of the Owner Trustee, and herein and in the
Indenture contained, in the case of the Indenture Trustee, except to the extent
that such cost, expense, loss, claim, damage or liability: (i) in the case of
the Owner Trustee, shall be due to the willful misfeasance, bad faith or
negligence (except for errors in judgment) of the Owner Trustee or, in the case
of the Indenture Trustee, shall be due to the willful misfeasance, bad faith or
negligence (except for errors in judgment) of the Indenture Trustee; or (ii) in
the case of the Owner Trustee, shall arise from the breach by the Owner Trustee
of any of its representations or warranties set forth in Section 7.03 of the
Trust Agreement.
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(d) The Depositor shall pay any and all taxes levied or assessed upon
all or any part of the Owner Trust Estate (other than any taxes expressly
excluded from the Depositor's responsibilities pursuant to this Section 6.04).
Indemnification under this Section shall survive the resignation or
removal of the Owner Trustee or the Indenture Trustee and the termination of
this Agreement and the other Basic Documents and shall include reasonable fees
and expenses of counsel and expenses of litigation. If the Depositor 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 the
Depositor, without interest.
SECTION 6.05 Merger or Consolidation of, or Assumption of the
Obligations of, Depositor. Any Person (a) into which the Depositor may be merged
or consolidated, (b) which may result from any merger or consolidation to which
the Depositor shall be a party or (c) which may succeed to the properties and
assets of the Depositor substantially as a whole, which Person in any of the
foregoing cases executes an agreement of assumption to perform every obligation
of the Depositor under this Agreement, shall be the successor to the Depositor
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
the Depositor pursuant to Section 3.01 shall have been breached (unless the
applicable breach shall have been cured, or the applicable Receivable shall have
been purchased in accordance therewith), (ii) the Depositor shall have delivered
to 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) the Rating Agency Condition shall
have been satisfied with respect to such transaction and (iv) the Depositor
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
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), (iii) and (iv) above shall be conditions to the consummation of the
transactions referred to in clauses (a), (b) or (c) above.
SECTION 6.06 Limitation on Liability of Depositor and Others. The
Depositor and any director, officer, employee or agent of the Depositor 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. The Depositor 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.
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SECTION 6.07 Depositor May Own Notes. The Depositor and any Affiliate
thereof may in its individual or any other capacity become the owner or pledgee
of Notes with the same rights as it would have if it were not the Depositor or
an Affiliate thereof, except as expressly provided herein or in any other Basic
Document.
SECTION 6.08 Pennsylvania and Maryland Motor Vehicle Sales Licenses.
The Depositor shall use its best efforts to maintain, and shall cause the Trust
to use its best efforts to maintain, the effectiveness of all licenses required
under the Pennsylvania Motor Vehicle Sales Finance Act and Title 11 of the
Maryland Business Occupations and Professions Code in connection with this
Agreement and the other Basic Documents and the transactions contemplated hereby
and thereby until such time as the Trust shall terminate in accordance with the
Trust Agreement.
SECTION 6.09 Notice of Events. The Depositor shall give each of the
Rating Agencies prior written notice of any amendment to its articles of
incorporation. The Depositor shall give each Rating Agency prior written notice
of any issuance by the Depositor of any debt not rated by such Rating Agency.
ARTICLE VII
The Servicer
SECTION 7.01 Representations and Warranties of the Servicer. DFS makes
the following representations and warranties on which each of the Transferor,
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 but shall survive (1) the
transfer and assignment of the Receivables to the Issuer and the pledge thereof
to the Indenture Trustee pursuant to the Indenture and (2) the removal of DFS as
Servicer.
(i) DFS is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nevada with the full
power and authority to own and conduct its business as it is presently
conducted by DFS. DFS is or shall be in compliance with the laws of any
state to the extent necessary to insure the enforceability of each
Receivable and the servicing of the Receivables in accordance with the
terms of this Agreement.
(ii) DFS has the full power and authority to consummate all
transactions contemplated by this Agreement. DFS has duly authorized
the execution, delivery and performance of this Agreement, has duly
executed and delivered this Agreement and this Agreement constitutes a
legal, valid and binding obligation of DFS, enforceable against it in
accordance with its terms.
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(iii) Neither the execution and delivery of this Agreement by
DFS, the acquisition or origination of the Receivables by DFS, the
consummation by DFS of the transactions contemplated hereby, nor the
fulfillment of or compliance by DFS with the terms and conditions of
this Agreement shall conflict with or result in a breach of any of the
terms of the charter or by-laws of DFS or any legal restriction or any
agreement or instrument to which DFS is now a party or by which it is
bound, or constitute a default or result in an acceleration under any
of the foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which DFS or its property is
subject.
(iv) DFS does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant of DFS
contained in this Agreement.
(v) There is no litigation pending or, to the knowledge of
DFS, threatened, which if determined adversely to DFS would adversely
affect the execution, delivery or enforceability of this Agreement, or
the ability of DFS to service the Receivables hereunder in accordance
with the terms hereof or which would have a material adverse effect on
the financial condition of DFS.
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by DFS of or compliance by DFS with this Agreement or
the consummation by DFS of the transactions contemplated by this
Agreement.
(vii) The collection practices used by DFS with respect to
each Receivable have been in all respects legal, proper, prudent and
customary in the origination and servicing of receivables similar to
the Receivables.
(viii) The chief executive office of DFS is located in St.
Louis, Missouri.
(ix) Neither the representations and warranties of DFS set
forth in this Agreement nor any statement, report or other document
furnished or to be furnished by DFS in connection with or pursuant to
this Agreement or in connection with the transactions contemplated
hereby contains any untrue statement of fact or omits to state a fact
necessary to make the statements contained therein not misleading.
(x) DFS shall use its best efforts to maintain, and shall
cause the Trust to use its best efforts to maintain, the effectiveness
of all licenses required under the Pennsylvania Motor Vehicle Sales
Finance Act and Title 11 of the Maryland Business Occupations and
Professions Code in connection with this Agreement and the other Basic
Documents and the transactions contemplated hereby and thereby until
such time as the Trust shall terminate in accordance with the Trust
Agreement.
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SECTION 7.02 Indemnities, etc. of Servicer. The Servicer shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement:
(a) The Servicer shall indemnify, defend and hold harmless the Issuer,
the Owner Trustee, the Indenture Trustee, the Noteholders, the Residual
Interestholder and the Depositor and any of the officers, directors, employees
and agents of the Issuer, the Owner Trustee and the Indenture Trustee from and
against any and all costs, expenses, losses, damages, claims and liabilities
arising out of or resulting from the use, ownership or operation by the Servicer
or any Affiliate thereof of a Financed Asset.
(b) The Servicer shall indemnify, defend and hold harmless the Issuer,
the Owner Trustee, the Indenture Trustee, the Depositor, the Noteholders, the
Residual Interestholder and any of the officers, directors, employees and agents
of the Issuer, the Owner Trustee and the Indenture Trustee from and against any
and all costs, expenses, losses, claims, damages and liabilities to the extent
that such cost, expense, loss, claim, damage or liability arose out of, or was
imposed upon any such Person through, the negligence, willful misfeasance or bad
faith of the Servicer in the performance of its duties under this Agreement or
by reason of reckless disregard of its obligations and duties under this
Agreement.
(c) The Servicer agrees to pay when due the compensation and any other
amounts due to the Indenture Trustee and the Owner Trustee pursuant to Section
6.07 of the Indenture and Section 8.02 of the Trust Agreement (in the event the
Issuer or the Depositor, as applicable, cannot fully indemnify the Indenture
Trustee or the Owner Trustee), as applicable.
For purposes of this Section, in the event of the termination of the
rights and obligations of DFS (or any successor thereto pursuant to Section
7.03) as Servicer pursuant to Section 8.01, or a resignation by such Servicer
pursuant to this Agreement, such Servicer shall be deemed to be the Servicer
pending appointment of a successor Servicer (other than the Indenture Trustee)
pursuant to Section 8.02.
Indemnification and other payments under this Section shall survive the
resignation or removal of the Owner Trustee or the Indenture Trustee or the
termination of this Agreement and the Indenture and shall include reasonable
fees and expenses of counsel and expenses of litigation. If the Servicer shall
have made any indemnity payments pursuant to this Section and the Person to or
on behalf of whom such payments are made thereafter collects any of such amounts
from others, such Person shall promptly repay such amounts to the Servicer,
without interest.
SECTION 7.03 Merger or Consolidation of, or Assumption of the
Obligations of, Servicer. Any Person (a) into which the Servicer may be merged
or consolidated, (b) resulting from any merger or consolidation to which the
Servicer is a party, or (c) succeeding to the properties and assets of the
Servicer substantially as a whole, which Person (in each of the cases
contemplated by clauses (a)-(c)) executed an agreement of assumption to perform
every
26
obligation of the Servicer hereunder, shall be the successor to the
Servicer under this Agreement without further act on the part of any of the
parties to this Agreement; provided, however, that (i) immediately after giving
effect to such transaction, no Servicer Default and no event which, after notice
or lapse of time, or both, would become a Servicer Default shall have occurred
and be continuing, (ii) the Servicer shall have delivered to 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 provided
for in this Agreement relating to such transaction have been complied with,
(iii) the Rating Agency Condition shall have been satisfied with respect to such
transaction and (iv) the Servicer shall have delivered to the Owner Trustee and
the Indenture Trustee an Opinion of Counsel stating that, in the opinion of such
counsel, either (A) 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 the Indenture
Trustee, respectively, in the Receivables and reciting the details of such
filings or (B) 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), (iii)
and (iv) above shall be conditions to the consummation of the transactions
referred to in clause (a), (b) or (c) above.
SECTION 7.04 Limitation on Liability of Servicer and Others. Neither
the Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Issuer, the Noteholders or the
Residual Interestholder, except as provided under this Agreement, for any action
taken or for refraining from the taking of any action pursuant to this Agreement
or for errors in judgment; provided, however, that this provision shall not
protect the Servicer or any such Person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of the Servicer's duties under this Agreement or by reason of
reckless disregard of obligations and duties under this Agreement. The Servicer
and any director, officer, 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 under this Agreement.
Except as provided in this Agreement, the Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action that shall not
be incidental to its duties to service the Receivables in accordance with this
Agreement and that in its opinion may involve it in any expense or liability;
provided, however, that the Servicer may undertake any reasonable action that it
may deem necessary or desirable in respect of this Agreement and the other Basic
Documents and the rights and duties of the parties to this Agreement and the
other Basic Documents and the interests of the Noteholders under the Indenture
and of the Residual Interestholder under the Trust Agreement.
SECTION 7.05 Resignation of Servicer. Subject to the provisions of
Section 7.03, the Person which is the Servicer shall not resign from the
obligations and duties hereby imposed on it as Servicer under this Agreement
except upon a determination that the performance of its duties under this
Agreement shall no longer be permissible under applicable law. Notice of any
27
such determination permitting the resignation of the Servicer shall be
communicated to the Owner Trustee and the Indenture Trustee at the earliest
practicable time (and, if such communication is not in writing, shall be
confirmed in writing at the earliest practicable time) and any such
determination shall be evidenced by an Opinion of Counsel to such effect
delivered to the Owner Trustee and the Indenture Trustee concurrently with or
promptly after such notice. No such resignation shall become effective until the
Indenture Trustee or a successor Servicer shall have assumed the
responsibilities and obligations of the resigning Servicer in accordance with
Section 8.02. In addition, in effecting such resignation, the resigning Servicer
shall cooperate with the successor Servicer, the Indenture Trustee and the Owner
Trustee in effecting the termination of its responsibilities and rights as
Servicer under this Agreement, including the transfer to the successor Servicer
for administration by it of all cash amounts that shall at the time be held by
it for deposit, or shall thereafter be received by it with respect to any
Receivable. The resigning Servicer shall also give the successor Servicer access
to its records, software, systems, facilities and employees in order to
facilitate the servicing transfer. All reasonable costs and expenses (including
attorneys' fees) incurred in connection with transferring the Receivable Files
and the Servicer's duties to the successor Servicer and amending this Agreement
to reflect such succession as Servicer shall be paid by DFS upon presentation of
reasonable documentation of such costs and expenses. Upon receipt of notice of
the occurrence of any such resignation, the Owner Trustee shall give notice
thereof to the Rating Agencies.
ARTICLE VIII
Servicer Default
SECTION 8.01 Servicer Default. If any one of the following events (a
"Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to deliver to the Indenture Trustee for
deposit in any of the Trust Accounts or the Residual Interestholder Distribution
Account any required payment or to direct the Indenture Trustee to make any
required distributions therefrom, which failure continues unremedied for a
period of three Business Days after written notice of such failure is received
by the Servicer from the Owner Trustee or the Indenture Trustee or after
discovery of such failure by the Servicer; or
(b) any failure by the Servicer duly to observe or to perform in any
material respect any other covenant or agreement of the Servicer set forth in
this Agreement or any other Basic Document, which failure shall (i) materially
and adversely affect the rights of the Noteholders or the Residual
Interestholder and (ii) continue unremedied for a period of 60 days after the
date on which written notice of such failure shall have been given (A) to the
Servicer by the Owner Trustee or the Indenture Trustee or (B) to the Servicer,
and to the Owner Trustee and the Indenture Trustee, by the Holders of Notes
evidencing not less than 25% of the Outstanding Amount of the Notes of the
Controlling Class or by the Residual Interestholder; or
28
(c) the occurrence of an Insolvency Event with respect to the Servicer;
then, and in each and every case, so long as the Servicer Default shall
not have been remedied, either the Indenture Trustee or the Holders of Notes
evidencing not less than 25% of the Outstanding Amount of the Notes of the
Controlling Class, by notice then given in writing to the Servicer (and to the
Indenture Trustee and the Owner Trustee if given by the Noteholders) may
terminate all the rights and obligations (other than the obligations set forth
in Section 7.02 hereof) of the Servicer under this Agreement. On or after the
latest of receipt by the Servicer of such written notice or the date of
termination specified in such notice or deemed specified pursuant to Section
8.02(d), all authority and power of the Servicer under this Agreement, whether
with respect to the Notes or the Receivables or otherwise, shall, without
further action, pass to and be vested in the Indenture Trustee or such successor
Servicer as may be appointed under Section 8.02; and, without limitation, the
Indenture Trustee and the Owner Trustee are hereby authorized and empowered to
execute and deliver, for the benefit of the predecessor Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement of the Receivables and related documents, or otherwise. The
predecessor Servicer shall cooperate with the successor Servicer, the Indenture
Trustee and the Owner Trustee in effecting the termination of the
responsibilities and rights of the predecessor Servicer under this Agreement,
including the transfer to the successor Servicer for administration by it of all
cash amounts that shall at the time be held by the predecessor Servicer for
deposit, or shall thereafter be received by it with respect to any Receivable.
The predecessor Servicer shall also give the successor Servicer access to its
records, software, systems, facilities and employees in order to facilitate the
servicing transfer. All reasonable costs and expenses (including attorneys'
fees) incurred in connection with transferring the Receivable Files and the
Servicer's duties to the successor Servicer and amending this Agreement to
reflect such succession as Servicer pursuant to this Section shall be paid by
the predecessor Servicer upon presentation of reasonable documentation of such
costs and expenses. Upon receipt of notice of the occurrence of a Servicer
Default, the Owner Trustee shall give notice thereof to the Rating Agencies.
The Owner Trustee agrees that if it gives a notice under clause (a) or
clause (b) above, the Owner Trustee shall simultaneously send a copy of such
notice to the Indenture Trustee. The Indenture Trustee agrees that if it gives a
notice under clause (a) or clause (b) above, the Indenture Trustee shall
simultaneously send a copy of such notice to the Owner Trustee.
SECTION 8.02 Appointment of Successor.
(a) Upon the Servicer's receipt of notice of termination pursuant to
Section 8.01 or the Servicer's resignation in accordance with the terms of this
Agreement, the predecessor Servicer shall continue to perform its functions as
Servicer under this Agreement, in the case of termination, only until the date
specified in such termination notice or, if no such date is specified in a
notice of termination, until receipt of such notice (subject in each case to
Section 8.02(d)) and, in the case of resignation, until the later of (i) the
date 45 days from the delivery to
29
the Owner Trustee and the Indenture Trustee of written notice of such
resignation (or written confirmation of such notice) in accordance with the
terms of this Agreement and (ii) the date upon which the predecessor Servicer
shall become unable to act as Servicer, as specified in the notice of
resignation and accompanying Opinion of Counsel. In the event of the Servicer's
termination hereunder, the Indenture Trustee shall appoint a successor Servicer,
and the successor Servicer shall accept its appointment by a written assumption
in form acceptable to the Owner Trustee and the Indenture Trustee. In the event
that a successor Servicer has not been appointed at the time when the
predecessor Servicer has ceased to act as Servicer in accordance with this
Section, the Indenture Trustee without further action shall automatically be
appointed the successor Servicer and the Indenture Trustee shall be entitled to
the Servicing Fee. Notwithstanding the above, the Indenture Trustee shall, if it
shall be legally unable so to act, appoint or 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 shall include the servicing of
recreational vehicle and boat receivables, as the successor to the Servicer
under this Agreement.
(b) Upon appointment, the successor Servicer (including the Indenture
Trustee acting as successor Servicer) shall be the successor in all respects to
the predecessor Servicer and shall be subject to all the responsibilities,
duties and liabilities arising thereafter relating thereto placed on the
predecessor Servicer and shall be entitled to the Servicing Fee and all the
rights granted to the predecessor Servicer by the terms and provisions of this
Agreement.
(c) The Servicer may not resign except as contemplated by Section 7.05.
(d) Notwithstanding anything herein to the contrary, any notice of
termination delivered by Noteholders pursuant to Section 8.01 that (i) does not
contain therein a date as of which such termination shall take effect or (ii)
contains such a date of termination, shall be deemed, in the case of clauses (i)
and (ii) to contain a date of termination which is no sooner than the date,
established by the Indenture Trustee by notice to the Servicer, which shall be
the earliest date practicable by which the Indenture Trustee is capable of
assuming the functions of Servicer hereunder.
SECTION 8.03 Repayment of Advances. If the Servicer shall change, the
predecessor Servicer shall be entitled to receive reimbursement for Outstanding
Advances pursuant to Section 5.04 with respect to all Advances made by the
predecessor Servicer.
SECTION 8.04 Notification to Noteholders. Upon any termination of, or
appointment of a successor to, the Servicer pursuant to this Article VIII, the
Indenture Trustee shall give prompt written notice thereof to Noteholders and
the Rating Agencies.
SECTION 8.05 Waiver of Past Defaults. The holders of the majority of
Notes of the Controlling Class may, on behalf of all Noteholders, waive in
writing any default by the Servicer in the performance of its obligations
hereunder and its consequences, except a default in making any required deposits
to or payments from any of the Trust Accounts in accordance with this
30
Agreement. Upon any such waiver of a past default, such default shall cease to
exist, and any Servicer Default arising therefrom shall be deemed to have been
remedied for every purpose of this Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereto.
ARTICLE IX
Termination
SECTION 9.01 Optional Purchase of All Receivables.
(a) If the Pool Balance is less than ten percent (10%) of the Initial
Pool Balance as of the last day of any Collection Period, then the Servicer
shall have the option to purchase all (but not less than all) of the Owner Trust
Estate, other than the Trust Accounts, on any Monthly Payment Date following
such day. To exercise such option, the Servicer shall deposit pursuant to
Section 5.05 in the Collection Account an amount equal to the aggregate of the
Purchase Amounts for the Receivables (provided that if the Obligor of a
Receivable is financially unable to make some or all of the payments on such
Receivable, the Purchase Amount in respect of such Receivable shall be the fair
market value of such Receivable), plus the appraised value of any other property
held by the Trust other than the Trust Accounts (the value of any other property
held by the Trust, other than the Trust Accounts to be determined as of the last
day of the Collection Period preceding such Monthly Payment Date by an appraiser
mutually agreed upon by the Servicer, the Owner Trustee and the Indenture
Trustee), and shall succeed to all interests in and to the Trust.
Notwithstanding the foregoing, the Servicer shall not be permitted to exercise
such option unless the resulting distribution to the Noteholders on such Monthly
Payment Date would be sufficient to pay the sum of the outstanding principal
balance of the Notes plus all accrued and unpaid interest thereon. This Section
9.01 is subject to the terms and conditions of Section 10.01 of the Indenture.
(b) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the Residual
Interestholder shall succeed to the rights of the Noteholders hereunder and the
Owner Trustee shall succeed to the rights of, and assume the obligations of, the
Indenture Trustee pursuant to this Agreement.
ARTICLE X
Miscellaneous
SECTION 10.01 Amendment. This Agreement may be amended by the Issuer,
the Depositor and the Servicer, with the consent of the Indenture Trustee, but
without the consent of any other Person, to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or
31
eliminating any of the provisions in this Agreement or of modifying in
any manner the rights of the Noteholders or Residual Interestholder; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel
delivered to the Owner Trustee and the Indenture Trustee, adversely affect in
any material respect the interests of any Noteholder or the Residual
Interestholder.
This Agreement may also be amended from time to time by the Issuer, the
Depositor and the Servicer, with the consent of the Indenture Trustee and the
consent of the Majority Noteholders and the consent of the Residual
Interestholder, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Noteholders or the Residual Interestholder;
provided, however, that no such amendment shall (a) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Receivables or distributions that shall be required to be made for
the benefit of the Noteholders or (b) reduce the aforesaid percentage of the
Outstanding Amount of the Notes or the Controlling Class of Notes required to
consent to any such amendment, without the consent of the Holders of all of the
outstanding Notes.
Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of Noteholders or the
Residual Interestholder pursuant to this Section to approve the particular form
of any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof.
Prior to the execution of or the consent to any amendment to this
Agreement, the Owner Trustee and the Indenture 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 (ii) the Opinion
of Counsel referred to in Section 10.02(i). The Owner Trustee and the Indenture
Trustee may, but shall not be obligated to, enter into or consent to any such
amendment which affects the Owner Trustee's or the Indenture Trustee's, as
applicable, own rights, duties or immunities under this Agreement or otherwise.
SECTION 10.02 Protection of Title to Trust; Change of Name, Identity,
Corporate Structure or Location of the Depositor, Etc.
(a) The Depositor 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 the Issuer and of the Indenture Trustee in the
Receivables and in the proceeds thereof. The Depositor 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.
32
(b) The Depositor 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 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) The Depositor shall give 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. The Servicer shall
at all times maintain each office from which it shall service Receivables, and
its principal executive office, within the United States of America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection Account
in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from and
after the time of transfer under this Agreement of the Receivables, the
Servicer's master computer records (including any backup archives) that refer to
a Receivable shall indicate clearly the interest of the Issuer and the Indenture
Trustee in such Receivable and that such Receivable is owned by the Issuer and
has been pledged to the Indenture Trustee. Indication of the Issuer's and the
Indenture Trustee's interest in a Receivable shall be deleted from or modified
on the Servicer's computer systems when, and only when, the related Receivable
shall have been paid in full or shall have become a Purchased Receivable.
(f) If at any time the Depositor or the Servicer shall propose to sell,
grant a security interest in, or otherwise transfer any interest in recreational
vehicle or boat receivables to any prospective purchaser, lender or other
transferee, the Servicer shall 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
Receivable, shall indicate clearly that such Receivable has been transferred to
and is owned by the Issuer and has been pledged to the Indenture Trustee.
(g) The Servicer shall permit the Indenture Trustee and its agents at
any time during normal business hours to inspect, audit and make copies of and
abstracts from the Servicer's records regarding any Receivable.
33
(h) Upon request, the Servicer shall furnish to the Owner Trustee or to
the Indenture Trustee, within five Business Days, a list of all Receivables (by
contract number and name of Obligor) then held as part of the Trust, together
with a reconciliation of such list to the Schedule of Receivables and to each of
the Servicer's Certificates furnished before such request indicating removal of
Receivables from the Trust.
(i) The Servicer shall deliver to the Owner Trustee and the Indenture
Trustee, promptly after the execution and delivery of this Agreement, and of
each amendment hereto and on each Monthly Payment Date occurring in March, an
Opinion of Counsel (which may be an employee of the Servicer) stating that, in
the opinion of such counsel, either (A) all financing statements and
continuation statements have been executed and filed that are necessary fully to
preserve and protect the interest of the Owner Trustee and the Indenture Trustee
in the Receivables, and reciting the details of such filings or referring to
prior Opinions of Counsel in which such details are given, or (B) no such action
shall be necessary to preserve and protect such interest. Each such Opinion of
Counsel shall specify any action necessary (as of the date of such opinion) to
be taken in the following year to preserve and protect such interest.
(j) The Depositor shall, to the extent required by applicable law,
cause the Notes and Certificates to be registered with the Commission pursuant
to Section 12(b) or Section 12(g) of the Exchange Act within the time periods
specified in such sections.
SECTION 10.03 Notices. All demands, notices, directions, communications
and instructions upon, to, or by the Depositor, the Servicer, 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 the Servicer (so long as DFS is the Servicer), to Deutsche Financial
Services Corporation, 655 Maryville Centre Drive, St. Louis, Missouri 63141,
Attention: Treasurer or Chief Legal Officer, (b) in the case of the Depositor,
to Deutsche Recreational Asset Funding Corporation, 655 Maryville Centre Drive,
St. Louis, Missouri 63141, Attention: President, (c) in the case of the Issuer
or the Owner Trustee, at the Corporate Trust Office with respect to the Owner
Trustee, (d) in the case of the Indenture Trustee, at the Corporate Trust Office
with respect to the Indenture Trustee, (e) in the case of Fitch, to Fitch, Inc.,
One State Street Plaza, New York, New York 10004, Attention: Asset-Backed
Securities Surveillance Group, (f) in the case of Standard & Poor's, to Standard
& Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., 55
Water Street, New York, New York 10041, Attention: Asset Backed Surveillance
Department and (g) in the case of Moody's, to Moody's Investors Service, 99
Church Street, New York, New York 10004, Attention: Moody's ABS Monitoring
Group; 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 10.04 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in this Section, in Sections 6.05 and 7.03
of this Agreement and as provided in the provisions of this Agreement concerning
the resignation of the Servicer, this Agreement may not be assigned by the
Depositor or the Servicer. The parties hereto hereby
34
acknowledge and consent to the mortgage, pledge, assignment and grant of a
security interest by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders of all right, title and interest of
the Issuer in, to and under the Depositor Conveyed Property and/or the
assignment of any or all of the Issuer's rights under this Agreement to the
Indenture Trustee.
SECTION 10.05 Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Depositor, the Servicer, the Issuer,
the Owner Trustee, the Indenture Trustee, the Noteholders and the Residual
Interestholder, 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 in the Owner Trust Estate or under or in
respect of this Agreement or any covenants, conditions or provisions contained
herein.
SECTION 10.06 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 10.07 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.
SECTION 10.08 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 10.09 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 10.10 Nonpetition Covenants. Notwithstanding any prior
termination of this Agreement, the Servicer and the Depositor 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 or the Boat Mortgage Trust 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 the property of the
Issuer or the Boat Mortgage Trust, or ordering the winding up or liquidation of
the affairs of the Issuer. Notwithstanding any prior termination of this
Agreement, the Servicer and the Issuer 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
35
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 10.11 Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Wells Fargo Bank Minnesota, National
Association, not in its individual capacity but solely in its capacity as Owner
Trustee of the Issuer and in no event shall Wells Fargo Bank Minnesota, National
Association, in its individual capacity or, except as expressly provided in the
Trust Agreement, as beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Issuer. For all purposes of this Agreement, in the performance of its
duties or obligations hereunder or in the performance of any duties or
obligations of the Issuer hereunder, the Owner Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of Articles VI, VII and
VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by HSBC Bank USA, not in its individual capacity but
solely as Indenture Trustee and in no event shall HSBC Bank USA have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer.
SECTION 10.12 Waiver. Each of DFS, the Depositor, the Trust, the Owner
Trustee and the Indenture Trustee 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 such underwriters) in other matters, (iv) the
institutions which are the Indenture Trustee, the Boat Mortgage 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 10.13 Separate Corporate Existence. The Depositor hereby
acknowledges that the Trust is entering into the transactions contemplated by
the Basic Documents in reliance upon the Depositor's identity as a legal entity
separate from DFS and the Transferor. Therefore, the Depositor shall take all
reasonable steps to make it apparent to third Persons that each of DFS and the
Transferor is an entity with assets and liabilities distinct from those of the
Depositor and any other Affiliate and that the Depositor is not a division of
DFS or the Transferor or any other Person. Without limiting the foregoing, the
Depositor shall (and shall cause each of DFS and the
36
Transferor to) operate and conduct its business and otherwise act in a manner
which is consistent with the following:
(a) The Depositor shall maintain its own stationery and other business
forms separate from those of any other Person (including DFS and the Transferor)
and shall conduct business in its own name.
(b) The Depositor shall not need to maintain any office space of its
own (apart from the office space used by Servicer) as part of its operations. If
the Depositor utilizes any office space, such office space shall be clearly
demarcated as being allocated to Depositor.
(c) DFS or the Transferor may issue consolidated financial statements
that shall include the Depositor, but such financial statements shall contain a
footnote to the effect that DFS contributed certain Receivables to the
Transferor, the Transferor then contributed the Receivables to the Depositor and
the Depositor in turn contributed the Receivables to the Trust. Separate
financial statements shall also be prepared for the Depositor. In addition to
the aforementioned footnote to any consolidated financial statement, DFS, the
Transferor and the Depositor shall take certain actions to disclose publicly the
Depositor's separate existence and the transactions contemplated hereby,
including, without limitation, through the filing of UCC financing statements.
Neither DFS, the Transferor nor the Depositor has concealed or shall conceal
from any interested party any transfers contemplated by the Basic Documents,
although Obligors shall not be affirmatively informed in the first instance of
the transfer of their obligations.
(d) The Transferor has caused and shall continue to cause an
Independent Director to be elected to the board of directors of the Depositor,
and the Depositor shall compensate the Independent Director.
(e) The Depositor shall not have its own employees, and the Depositor's
business relating to the Receivables shall be primarily conducted through DFS as
Servicer. However, any allocations of direct, indirect or overhead expenses for
items shared among the Depositor, the Transferor and DFS that are not included
as part of the Servicing Fee are and shall be made among such entities to the
extent practical on the basis of actual use or value of services rendered and
otherwise on a basis reasonably related to actual use or the value of services
rendered.
(f) DFS, the Depositor and the Transferor shall maintain their assets
and liabilities in such a manner that it is not costly or difficult to
segregate, ascertain or otherwise identify the individual assets and liabilities
of the Depositor from those of the others or from those of any other Person,
including any other subsidiary or other Affiliate of DFS. Except as set forth
below, the Depositor shall maintain its own books of account and corporate
records separate from DFS, the Transferor, and any other subsidiary or other
Affiliate of DFS. The Depositor shall not commingle or pool its funds (or other
assets) or liabilities with those of DFS, the Transferor, or any other
subsidiary or Affiliate of DFS except as specifically provided in this Agreement
with respect to the temporary commingling of collections of the Receivables and
except with respect
37
to the retention by DFS, in its capacity as Servicer, of the books and records
pertaining to the Receivables. However, DFS shall not generally make the books
and records relating to the Receivables available to any of the creditors of DFS
or other interested persons, and in the rare instance when it does so, DFS
simultaneously also shall provide the marked computer records and shall make
such books and records available for the sole purpose of permitting creditors
and other interested parties of DFS to verify the existence of DFS and
performance of its duties as Servicer. The Depositor shall not maintain joint
bank accounts or other depository accounts to which DFS, the Transferor, or any
other subsidiary or Affiliate of DFS (other than DFS solely in its capacity as
Servicer) has independent access.
(g) Each of DFS and the Transferor, on the one hand, and the Depositor,
on the other hand, shall strictly observe corporate formalities, including with
respect to its dealings with the other. Specifically, no transfer of assets
between DFS and the Transferor on the one hand, and the Depositor, on the other
hand, shall be made without adherence to corporate formalities.
(h) Neither the Depositor, on the one hand, or DFS, the Transferor, or
any other subsidiary or other Affiliate of DFS, on the other hand, shall be, or
shall hold itself out to be, responsible for the debts of the other, or, except
as provided in this Agreement with respect to the duties of the Servicer, the
decisions or actions respecting the daily business and affairs of the other,
except as contemplated by the expense reimbursement and indemnification
provisions of the Basic Documents and any underwriting agreement executed in
connection therewith.
(i) All distributions made by the Depositor to the Transferor as its
sole shareholder shall be made in accordance with applicable law.
(j) Any other transactions between DFS and the Depositor or DFS and the
Transferor permitted by (although not expressly provided for in the Basic
Documents) shall be fair and equitable to DFS, the Depositor and the Transferor,
shall be the type of transaction that would be entered into by a prudent Person
in the position of DFS, the Depositor or the Transferor vis a vis each other,
and shall be on terms that are at least favorable as may be obtained from a
Person who is not DFS, the Depositor or the Transferor.
(k) The Depositor is not named, and has not entered into any agreement
to be named, directly or indirectly, as a direct or contingent beneficiary or
loss payee on any insurance policy covering the property of DFS, the Transferor
or any other subsidiary or other Affiliate of DFS except for an insurance policy
with respect to the liability of directors and officers maintained by Deutsche
Bank AG for the benefit of its direct and indirect subsidiaries.
SECTION 10.14 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,
38
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 10.03 or at such other address notified to the
other parties 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.
SECTION 10.15 Tax Treatment. The parties hereto agree to treat (and DFS
shall cause the Transferor to treat) the Trust and the Notes for tax purposes in
a manner which is consistent with the applicable tax treatment specified in the
other Basic Documents.
[SIGNATURES FOLLOW]
39
IN WITNESS WHEREOF, the parties hereto have caused this Transfer and
Servicing Agreement to be duly executed as of the day and year first above
written.
DISTRIBUTION FINANCIAL SERVICES RV/MARINE
TRUST 2001-1
By: Wells Fargo Bank Minnesota, National
Association, not in its individual capacity
but solely as Owner Trustee on behalf of the
Trust
By:
---------------------------------------
Name:
-------------------------------------
Title:
-----------------------------------
DEUTSCHE RECREATIONAL ASSET FUNDING
CORPORATION, as Depositor
By: /s/ Richard C. Goldman
----------------------------------------
Richard C. Goldman
Vice President
By: /s/ Joseph B. Thomas
----------------------------------------
Joseph B. Thomas
Treasurer
DEUTSCHE FINANCIAL SERVICES CORPORATION,
as Servicer
By: /s/ Richard C. Goldman
----------------------------------------
Richard C. Goldman
Executive Vice President
By: /s/ Joseph B. Thomas
----------------------------------------
Joseph B. Thomas
Vice President
S-1
Acknowledged, accepted and agreed to
as of the day and year first above written:
HSBC Bank USA,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ Todd N. Niemy
--------------------------------------
Name: Todd N. Niemy
Title: Vice President
S-2
APPENDIX A
DEFINITIONS
"Act" has the meaning specified in Section 11.03(a) of the Indenture.
"Advance" means the amount of interest, as of the close of business on
the last day of a Collection Period, which the Servicer advances on the
Receivables pursuant to Section 5.04 of the Transfer and Servicing Agreement.
"Affiliate" means, 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 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.
"Amount Financed" means with respect to a Receivable, the amount
advanced toward the purchase price of the Financed Asset and any related costs.
"Annual Percentage Rate" or "APR" of a Receivable means the annual rate
of finance charges stated in the related Contract.
"Assignment of Preferred Mortgage" means, with respect to each
Federally Documented Boat, an assignment in substantially the form attached as
an exhibit to the Boat Mortgage Trust Agreement.
"Authorized Officer" means, with respect to the Issuer, any officer of
the Owner Trustee or Depositor who is authorized to act for the Owner Trustee or
the Depositor, as applicable, in matters relating to the Issuer and who is
identified on a signature resolution, an incumbency certificate or other similar
certificate delivered by the Owner Trustee or the Depositor, as applicable, to
the Indenture Trustee on the Closing Date (as such list may be modified or
supplemented from time to time thereafter).
"Average Sixty-Day Delinquency Ratio" means the ratio of the average of
the aggregate Principal Balances of Receivables delinquent 60 days or more for
the preceding three Collection Periods to the average Pool Balance for such
preceding three Collection Periods.
"Basic Documents" means the Transfer and Servicing Agreement, the
DFS/Ganis Transfer Agreement, the Ganis/Depositor Transfer Agreement, the
Indenture, the Trust Agreement, the Boat Trust Agreement and any Assignments of
Preferred Mortgage related thereto and the Note Depository Agreement and the
other documents and certificates delivered in connection therewith.
A-1
"Benefit Plan" has the meaning assigned to such term in Section 11.13
of the Trust Agreement.
"Boat Mortgage Trust" means the DFS Ganis Boat Mortgage Trust, formed
pursuant to the Boat Mortgage Trust Agreement.
"Boat Mortgage Trust Agreement" means the Boat Mortgage Trust Agreement
dated as of May 1, 2001 among DFS, Ganis and Wilmington Trust Company, as
trustee, as amended, amended and restated, supplemented or otherwise modified
from time to time.
"Boat Mortgage Trustee" means the trustee of the Boat Mortgage Trust.
As of the Closing Date, Wilmington Trust Company is the Boat Mortgage Trustee.
"Book-Entry Notes" means a beneficial interest in the Notes, ownership
and transfers of which shall be made through book entries by a Clearing Agency
as described in Section 2.10 of the Indenture.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions or trust companies in the State of New York are
authorized or obligated by law, regulation or executive order to remain closed.
"Certificated Item" means a "certificated security" as defined in
Section 8-102(a)(4) of the UCC.
"Class" means any one of the classes of Notes, i.e., the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the Class
A-5 Notes, the Class B Notes, the Class C Notes or the Class D Notes.
"Class A-1 Interest Rate" means 2.82% per annum (computed on the basis
of a 360-day year consisting of twelve 30-day months).
"Class A-2 Interest Rate" means 4.05% per annum (computed on the basis
of a 360-day year consisting of twelve 30-day months).
"Class A-3 Interest Rate" means 4.74% per annum (computed on the basis
of a 360-day year consisting of twelve 30-day months).
"Class A-4 Interest Rate" means 5.67% per annum (computed on the basis
of a 360-day year consisting of twelve 30-day months).
"Class A-5 Interest Rate" means 6.19% per annum (computed on the basis
of a 360-day year consisting of twelve 30-day months).
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"Class B Interest Rate" means 6.43% per annum (computed on the basis of
a 360-day year consisting of twelve 30-day months).
"Class C Interest Rate" means 6.86% per annum (computed on the basis of
a 360-day year consisting of twelve 30-day months).
"Class D Interest Rate" means 7.73% per annum (computed on the basis of
a 360-day year consisting of twelve 30-day months).
"Class A-1 Noteholder" means the Person in whose name a Class A-1 Note
is registered in the Note Register.
"Class A-2 Noteholder" means the Person in whose name a Class A-2 Note
is registered in the Note Register.
"Class A-3 Noteholder" means the Person in whose name a Class A-3 Note
is registered in the Note Register.
"Class A-4 Noteholder" means the Person in whose name a Class A-4 Note
is registered in the Note Register.
"Class A-5 Noteholder" means the Person in whose name a Class A-5 Note
is registered in the Note Register.
"Class B Noteholder" means the Person in whose name a Class B Note is
registered in the Note Register.
"Class C Noteholder" means the Person in whose name a Class C Note is
registered in the Note Register.
"Class D Noteholder" means the Person in whose name a Class D Note is
registered in the Note Register.
"Class A Notes" means the Class A-1 Notes, Class A-2 Notes, Class A-3
Notes, Class A-4 Notes, Class A-5 Notes and Class A-6 Notes.
"Class A-1 Notes" means the 2.82% Asset Backed Notes, Class A-1,
substantially in the form of Exhibit A to the Indenture.
"Class A-2 Notes" means the 4.05% Asset Backed Notes, Class A-2,
substantially in the form of Exhibit A to the Indenture.
"Class A-3 Notes" means the 4.74% Asset Backed Notes, Class A-3,
substantially in the form of Exhibit A to the Indenture.
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"Class A-4 Notes" means the 5.67% Asset Backed Notes, Class A-4,
substantially in the form of Exhibit A to the Indenture.
"Class A-5 Notes" means the 6.19% Asset Backed Notes, Class A-5,
substantially in the form of Exhibit A to the Indenture.
"Class B Notes" means the 6.43% Asset Backed Notes, Class B,
substantially in the form of Exhibit A to the Indenture.
"Class C Notes" means the 6.86% Asset Backed Notes, Class C,
substantially in the form of Exhibit A to the Indenture.
"Class D Notes" means the 7.73% Asset Backed Notes, Class D,
substantially in the form of Exhibit A to the Indenture.
"Class A-1 Stated Maturity Date" means the Monthly Payment Date in
November 2008.
"Class A-2 Stated Maturity Date" means the Monthly Payment Date in
August 2010.
"Class A-3 Stated Maturity Date" means the Monthly Payment Date in May
2013.
"Class A-4 Stated Maturity Date" means the Monthly Payment Date in
January 2017.
"Class A-5 Stated Maturity Date" means the Monthly Payment Date in
November 2022.
"Class B Stated Maturity Date" means the Monthly Payment Date in
November 2022.
"Class C Stated Maturity Date" means the Monthly Payment Date in
November 2022.
"Class D Stated Maturity Date" means the Monthly Payment Date in
November 2022.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Clearing Corporation" has the meaning specified in Section 8-102(a)(5)
of the UCC.
"Clearing Corporation Item" means securities which are in the custody
of or maintained on the books of a Clearing Corporation or a nominee subject to
the control of a Clearing Corporation and, if they are Certificated Items in
registered form, properly endorsed to or registered in the name of the Clearing
Corporation or such nominee.
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"Clearstream" means Clearstream Banking, Luxembourg, a limited
liability company organized under the laws of the Grand Duchy of Luxembourg.
"Clearstream Item" means a "security" as defined in Section
8-102(a)(15) of the UCC that (i) is a debt or equity security and (ii) is
capable of being transferred to the Indenture Trustee's account at Clearstream
pursuant to Section 5.01 of the Transfer and Servicing Agreement.
"Closing Date" means November 27, 2001.
"Coast Guard" means the National Vessel Documentation Center of the
United States Coast Guard.
"Code" means the Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
"Collateral" has the meaning specified in the Granting Clause of the
Indenture.
"Collection Account" means the account designated as such, established
and maintained pursuant to Section 5.01(a) of the Transfer and Servicing
Agreement.
"Collection Period" means a calendar month. Any amount stated as of the
last day of a Collection Period or as of the first day of a Collection Period
shall give effect to the following calculations as determined as of the close of
business on such last day: (1) all applications of collections, (2) all Advances
and reductions of Outstanding Advances and (3) all distributions to be made on
the following Monthly Payment Date.
"Commission" has the meaning specified in Section 1.02 of the
Indenture.
"Computer Tape" means the computer tape, containing information on the
DFS Receivables and the Transferor Receivables, delivered by DFS to the Issuer
on or prior to the Closing Date.
"Contract" means a retail installment sale contract or installment loan
contract relating to a recreational vehicle or boat.
"Controlling Class" means, with respect to any Outstanding Notes, the
Class A Notes (voting together as a single class) as long as any Class A Notes
are Outstanding, and thereafter the Class B Notes as long as any Class B Notes
are Outstanding, and thereafter the Class C Notes as long as any Class C Notes
are Outstanding, and thereafter the Class D Notes as long as any Class D Notes
are Outstanding -- excluding Notes held by the Depositor, the Servicer or their
affiliates.
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"Corporate Trust Office" or "Corporate Trust Administration Department"
means (i) the office of the Indenture Trustee at which at any particular time
its corporate trust business shall be principally administered, which office at
the date of the execution of the Indenture is located at 10 East 40th Street,
New York, New York 10016; or at such other address as the Indenture Trustee may
designate from time to time by notice to the Noteholders and the Depositor, or
the principal corporate trust office of any successor Indenture Trustee (of
which address such successor Indenture Trustee shall notify the Noteholders and
the Depositor) and (ii) with respect to the Owner Trustee, the office of the
Owner Trustee located at Sixth & Marquette, Minneapolis, Minnesota 55479-0070 or
at such other address outside of New York as the Owner Trustee may designate by
notice to the Residual Interestholder, the Indenture Trustee, the Noteholders,
the Residual Interestholder and the Depositor, or the principal corporate trust
office of any successor Owner Trustee (of which address such successor Owner
Trustee shall notify the Residual Interestholder, the Indenture Trustee and the
Depositor).
"Crossover Date" means December 15, 2005.
"Cumulative Realized Losses" means with respect to any Monthly Payment
Date (1) the aggregate Principal Balance of all Receivables that have become
Defaulted Receivables during any Collection Period from the Cutoff Date through
the Collection Period preceding the Payment Date minus (2) all Liquidation
Proceeds.
"Cutoff Date" means October 31, 2001.
"Dealer" means the dealer which sold a Financed Asset to an Obligor
and, if applicable, which originated and assigned the related Receivable to DFS
or the Transferor, as the case may be.
"Dealer Agreement" means an agreement between a Dealer and DFS or the
Transferor, as the case may be, pursuant to which DFS or the Transferor, as the
case may be, purchased one or more Receivables.
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Defaulted Receivable" means a Receivable as to which (a) all or any
part of a scheduled payment is 120 days past due and the Servicer has not
repossessed the related Financed Asset or (b) the Servicer has repossessed and
liquidated the related Financed Asset, whichever occurs first or (c) without
duplication, any other Receivable charged off under the Servicer's credit and
collection policy.
"Definitive Notes" has the meaning specified in Section 2.10 of the
Indenture.
"Depositor" means Deutsche Recreational Asset Funding Corporation, in
its capacity as depositor under the Transfer and Servicing Agreement, and its
successors in interest.
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"Depositor Conveyed Property" has the meaning specified in Section 2.01
of the Transfer and Servicing Agreement.
"Determination Date" means, with respect to any Monthly Payment Date
and the Collection Period immediately preceding such Monthly Payment Date, the
Business Day immediately preceding such Monthly Payment Date.
"DFS" means Deutsche Financial Services Corporation, a Nevada
corporation, or its successors in interest.
"DFS Conveyed Property" has the meaning specified in Section 2.01 of
the DFS/Ganis Transfer Agreement.
"DFS Receivables" has the meaning specified in Section 2.01 of the
DFS/Ganis Transfer Agreement.
"DFS/Ganis Transfer Agreement" means the DFS/Ganis Transfer Agreement
dated as of November 1, 2001 between DFS and Ganis, as amended, amended and
restated or otherwise modified from time to time.
"Eligible Deposit Account" means either (1) a segregated account with
an Eligible Institution or (2) a segregated trust account with the corporate
trust department of a depository institution 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 shall have a credit rating from
each Rating Agency in one of its generic rating categories that signifies
investment grade.
"Eligible Institution" means (1) the corporate trust department of the
Indenture Trustee or the Owner Trustee, or (2) a depository institution
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), (i) which has either (A) a long-term unsecured debt rating of AAA by
Standard & Poor's, AAA by Fitch and Aaa by Moody's or (B) a certificate of
deposit rating of A-1+ by Standard & Poor's, F1+ by Fitch and P-1 by Moody's, or
any other long-term, short-term or certificate of deposit rating acceptable to
the Rating Agencies and (ii) whose deposits are insured by the FDIC. If so
qualified, the Indenture Trustee or the Owner Trustee may be considered an
Eligible Institution for the purposes of clause (2) of this definition.
"Eligible Investments" means book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
(1) direct obligations of, and obligations fully guaranteed as to the
full and timely payment by, the United States of America;
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(2) 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 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 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;
(3) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the Rating
Agencies in the highest investment category granted thereby;
(4) investments in money market funds having a rating from each of the
Rating Agencies in the highest investment category granted thereby (including
funds for which the Indenture Trustee or any agent of the Indenture Trustee or
the Owner Trustee or any of their respective Affiliates is investment manager or
advisor);
(5) bankers' acceptances issued by any depository institution or trust
company referred to in clause (2) above;
(6) 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 (2);
(7) repurchase obligations with respect to any security or whole loan,
entered into with (i) a depository institution or trust company (acting as
principal) described in clause (2) above (except that the rating referred to in
the proviso in such clause (b) shall be A-1 or higher in the case of Standard &
Poor's) (such depository institution or trust company being referred to in this
definition as a "financial institution"), (ii) a broker/dealer (acting as
principal) registered as a broker or dealer under Section 15 of the Exchange Act
(a "broker/dealer") the unsecured short-term debt obligations of which are rated
F1+ by Fitch, at least A-1 by Standard & Poor's and P-1 by Moody's at the time
of entering into such repurchase obligation (a "rated broker/dealer"), (iii) an
unrated broker/dealer (an "unrated broker/dealer"), acting as principal, that is
a wholly-owned subsidiary of a non-bank holding company the unsecured short-term
debt obligations of which are rated F1+ by Fitch, at least A-1 by Standard &
Poor's and P-1 by Moody's at the time of entering into such repurchase
obligation (a "Rated Holding Company") or (iv) an unrated subsidiary (a
"Guaranteed Counterparty"), acting as principal, that is a wholly-owned
subsidiary of a direct or indirect parent Rated Holding Company, which
guarantees such subsidiary's obligations under such repurchase agreement;
provided that the following conditions are satisfied:
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(A) the aggregate amount of funds invested in repurchase
obligations of a financial institution, a rated broker/dealer, an
unrated broker/dealer or Guaranteed Counterparty in respect of which
the Standard & Poor's unsecured short-term ratings are A-1 (in the case
of an unrated broker/dealer or Guaranteed Counterparty, such rating
being that of the related Rated Holding Company) shall not exceed 20%
of the sum of the then outstanding principal balance of the Notes
(there being no limit on the amount of funds that may be invested in
repurchase obligations in respect of which such Standard & Poor's
rating is A-1+ (in the case of an unrated broker/dealer or Guaranteed
Counterparty, such rating being that of the related Rated Holding
Company));
(B) in the case of the Reserve Account, the rating from
Standard & Poor's in respect of the unsecured short-term debt
obligations of the financial institution, rated broker/dealer, unrated
broker/dealer or Guaranteed Counterparty (in the case of an unrated
broker/dealer or Guaranteed Counterparty, such rating being that of the
related Rated Holding Company) shall be A-1+;
(C) the repurchase obligation must mature within 30 days of
the date on which the Indenture Trustee or the Issuer, as applicable,
enters into such repurchase obligation;
(D) the repurchase obligation shall not be subordinated to any
other obligation of the related financial institution, rated
broker/dealer, unrated broker/dealer or Guaranteed Counterparty;
(E) the collateral subject to the repurchase obligation is
held, in the appropriate form, by a custodial bank on behalf of the
Indenture Trustee or the Issuer, as applicable;
(F) the repurchase obligation shall require that the
collateral subject thereto shall be marked to market daily;
(G) in the case of a repurchase obligation of a Guaranteed
Counterparty, the following conditions shall also be satisfied:
(i) the Indenture Trustee or the Issuer, as
applicable, shall have received an opinion of counsel (which
may be in- house counsel) to the effect that the guarantee of
the related Rated Holding Company is a legal, valid and
binding agreement of the Rated Holding Company, enforceable in
accordance with its terms, subject as to enforceability to
bankruptcy, insolvency, reorganization and moratorium or other
similar laws affecting creditors' rights generally and to
general equitable principles;
(ii) the Indenture Trustee or the Issuer, as
applicable, shall have received (x) an incumbency certificate
for the signer of such guarantee, certified
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by an officer of such Rated Holding Company and (y) a
resolution, certified by an officer of the Rated Holding
Company, of the board of directors (or applicable committee
thereof) of the Rated Holding Company authorizing the
execution, delivery and performance of such guarantee by the
Rated Holding Company;
(iii) the only conditions to the obligation of such
Rated Holding Company to pay on behalf of the Guaranteed
Counterparty shall be that the Guaranteed Counterparty shall
not have paid under such repurchase obligation when required
(it being understood that no notice to, demand on or other
action in respect of the Guaranteed Counterparty is necessary)
and that the Indenture Trustee or the Issuer shall make a
demand on the Rated Holding Company to make the payment due
under such guarantee;
(iv) the guarantee of the Rated Holding Company shall
be irrevocable with respect to such repurchase obligation and
shall not be subordinated to any other obligation of the Rated
Holding Company; and
(v) each of Standard & Poor's, Fitch and Moody's has
confirmed in writing to the Indenture Trustee or Issuer, as
applicable, that it has reviewed the form of the guarantee of
the Rated Holding Company and has determined that the issuance
of such guarantee shall not result in the downgrade or
withdrawal of the ratings assigned to the Notes.
(H) the repurchase obligation shall require that the
repurchase obligation be overcollateralized and shall provide that,
upon any failure to maintain such overcollateralization, the repurchase
obligation shall become due and payable, and unless the repurchase
obligation is satisfied immediately, the collateral subject to the
repurchase agreement shall be liquidated and the proceeds applied to
satisfy the unsatisfied portion of the repurchase obligation;
(8) any other investment with respect to which the Issuer or the
Servicer has received written notification from the Rating Agencies that the
acquisition of such investment as an Eligible Investment shall not result in a
withdrawal or downgrading of the ratings on the Notes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear system.
"Euroclear Item" means a "security" as defined in Section 8-102(a)(15)
of the UCC that (i) is a debt or equity security and (ii) is capable of being
transferred to the Indenture Trustee's account at Euroclear pursuant to Section
5.01 of the Transfer and Servicing Agreement.
"Event of Default" has the meaning specified in Section 5.01 of the
Indenture.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
Executive Vice President, any Vice President, the Secretary or the Treasurer of
such corporation; and with respect to any partnership, any general partner
thereof.
"Expenses" has the meaning specified in Section 8.02 of the Trust
Agreement.
"FDIC" means the Federal Deposit Insurance Corporation or any successor
organization.
"Federally Documented Boat" means a Financed Boat that is documented
under Chapter 121 of Title 46 of the United States Code.
"Fidelity Bond" means a fidelity bond to be maintained by the Servicer
pursuant to Section 4.15 of the Transfer and Servicing Agreement.
"Final Certification" has the meaning specified in Section 3.02 of the
Transfer and Servicing Agreement.
"Final Scheduled Payment Date" means, with respect to any Class of
Notes, the Stated Maturity Date of such Class of Notes.
"Financed Asset" means, as applicable, a Financed Boat and/or a
Financed Vehicle.
"Financed Boat" means a new or used sport or power boat (including any
boat motors and accompanying trailers) or yacht (both power and sail), together
with all accessions thereto, securing an Obligor's indebtedness under the
respective Receivable.
"Financed Vehicle" means a new or used recreational vehicle, together
with all accessions thereto, securing an Obligor's indebtedness under the
respective Receivable.
"First Priority Principal Distribution Amount" means, with respect to
any Monthly Payment Date, an amount equal to the excess, if any, of (a) the
Outstanding Amount of the Class A Notes as of the Monthly Payment Date preceding
such Monthly Payment Date (after giving effect to any principal payments made on
the Class A Notes on the Monthly Payment Date preceding such Monthly Payment
Date), over (b) the Pool Balance at the end of the related Collection Period;
provided, however, that the First Priority Principal Distribution Amount shall
not exceed the Outstanding Amount of all of the Notes on such Monthly Payment
Date (prior to giving effect to any principal payments made on the Notes on such
Monthly Payment Date); and provided, further that the First Priority Principal
Distribution Amount on or after the Stated Maturity Date of a class of Class A
Notes shall not be less than the amount that is necessary to reduce the
Outstanding Amount of such class of Class A Notes and all earlier maturing
classes of Class A Notes to zero.
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"Fitch" means Fitch, Inc. or its successor.
"Ganis" means Ganis Credit Corporation, a Delaware corporation, or its
successors in interest.
"Ganis/Depositor Transfer Agreement" means the Ganis/Depositor Transfer
Agreement dated as of November 1, 2001 between Ganis and the Depositor, as the
same may be amended, amended and restated or otherwise modified from time to
time.
"Government Item" means a security (other than a security issued by the
Government National Mortgage Association) issued or guaranteed by the United
States of America or an agency or instrumentality thereof representing a full
faith and credit obligation of the United States of America and, with respect to
each of the foregoing, that is maintained in book-entry form on the records of a
Federal Reserve Bank.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create, and grant a lien upon and a
security interest in and a right of set-off against pursuant to the Indenture. A
Grant of the Collateral or of any other agreement or instrument shall include
all rights, powers and options (but none of the obligations) of the granting
party thereunder, including the immediate and continuing right to claim for,
collect, receive and give receipt for principal and interest payments in respect
of the Collateral and all other moneys payable thereunder, to give and receive
notices and other communications, to make waivers or other agreements, to
exercise all rights and options, to bring Proceedings in the name of the
granting party or otherwise, and generally to do and receive anything that the
granting party is or may be entitled to do or receive thereunder or with respect
thereto.
"Holder" means the Person in whose name a Note is registered on the
Note Register.
"Indemnified Parties" shall have the meaning specified in Section 8.02
of the Trust Agreement.
"Indenture" means the Indenture dated as of November 1, 2001 between
the Issuer and the Indenture Trustee, as the same may be amended, amended and
restated, supplemented or otherwise modified from time to time.
"Indenture Trustee" means HSBC Bank USA, a New York banking
corporation, as Indenture Trustee under the Indenture, or any successor
Indenture Trustee under the Indenture.
"Independent" means, when used with respect to any specified Person,
that the Person (a) is in fact independent of the Issuer, any other obligor on
the Notes, the Depositor and any Affiliate of any of the foregoing Persons, (b)
does not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Depositor or any Affiliate
of any of the foregoing Persons and (c) is not connected with the Issuer, any
such other
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obligor, the Depositor or any Affiliate of any of the foregoing Persons as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.01 of the
Indenture, made by an Independent appraiser or other expert appointed by an
Issuer Order, and such opinion or certificate shall state that the signer has
read the definition of "Independent" in the Indenture and that the signer is
Independent within the meaning thereof.
"Independent Director" has the meaning specified in the articles of
incorporation of the Depositor.
"Initial Pool Balance" means $529,467,226.64.
"Insolvency Event" means, with respect to a specified Person, (1) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in an
involuntary case under any applicable federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for
such Person or for any substantial part of its property, or ordering the
winding-up or liquidation of such Person's affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; or (2)
the commencement by such Person of a voluntary case under any applicable federal
or state bankruptcy, insolvency or other similar law now or hereafter in effect,
or the consent by such Person to the entry of an order for relief in an
involuntary case under any such law, or the consent by such Person to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or the making by such Person of any general
assignment for the benefit of creditors, or the failure by such Person generally
to pay its debts as such debts become due, or the taking of action by such
Person in furtherance of any of the foregoing.
"Instrument" has the meaning specified in Section 9-105(1)(i) of the
UCC.
"Insurance Policy" means, with respect to a Receivable, any insurance
policy benefitting the holder of the Receivable providing loss or physical
damage, credit life, credit disability, theft, mechanical breakdown or similar
coverage with respect to the Financed Asset or the Obligor.
"Interest Accrual Period" means the period from (and including) the
15th day of the preceding calendar month (or in the case of the first Monthly
Payment Date, from and including the Closing Date) to and including the day
preceding the 15th day of the current calendar month.
"Interest Rate" means the interest rate for any one or more of the
Classes of Notes, or collectively for all Classes of Notes, in each case as the
context requires.
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"Investment Earnings" means the realized investment earnings (net of
losses and investment expenses) on amounts on deposit in the Trust Accounts.
"Issuer" means Distribution Financial Services RV/Marine Trust 2001-1,
a New York common law trust, until a successor replaces it and, thereafter,
means the successor and, for purposes of any provision contained herein and
required by the TIA, each other obligor on the Notes.
"Issuer Order" or "Issuer Request" means a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Indenture Trustee.
"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than tax liens, mechanics' liens and any liens
that attach to a Receivable by operation of law as a result of any act or
omission by the related Obligor.
"Lien Certificate" means, with respect to a Financed Asset, an original
certificate of title, certificate of lien or other notification issued by the
Registrar of Titles of the applicable State to a secured party which indicates
that the lien of the secured party on the Financed Asset is recorded on the
original certificate of title. In any jurisdiction in which the original
certificate of title is required to be given to the Obligor, the term "Lien
Certificate" means only a certificate or notification issued to a secured party
by such Registrar of Titles.
"Liquidation Proceeds" means, with respect to any Defaulted Receivable,
the monies collected in respect thereof, from whatever source, on such Defaulted
Receivable during the Collection Period in which such Receivable became a
Defaulted Receivable, net of the sum of any amounts of expenses incurred by the
Servicer in connection with such liquidation and any amounts required by law to
be remitted to the Obligor on such Defaulted Receivable.
"Majority Noteholders" means the Holders of Notes representing not less
than a majority of the Outstanding Amount of the Notes.
"Monthly Payment Date" means, with respect to each Collection Period,
the 15th day of the following month or, if such day is not a Business Day, the
immediately following Business Day, commencing on December 15, 2001.
"Moody's" means Moody's Investors Service, Inc., or its successor.
"Note" means any Class A Note, Class B Note, Class C Note or Class D
Note.
"Note Depository Agreement" means the agreement dated the Closing Date
among the Trust, the Indenture Trustee, and The Depository Trust Company, as the
initial Clearing Agency, relating to the Notes, as the same may be amended,
amended and restated or otherwise modified from time to time.
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"Note Distribution Account" means the account designated as such,
established and maintained pursuant to Section 5.01 of the Transfer and
Servicing Agreement.
"Note Owner" means, with respect to a Book-Entry Note, the Person who
is the beneficial owner of such Book-Entry Note, as reflected on the books of
the Clearing Agency or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing Agency).
"Note Pool Factor" means, with respect to each Class of Notes as of the
close of business on the last day of a Collection Period, a seven-digit decimal
figure equal to the outstanding principal balance of such Class of Notes (after
giving effect to any reductions thereof to be made on the immediately following
Monthly Payment Date) divided by the original outstanding principal balance of
such Class of Notes. The Note Pool Factor shall be 1.0000000 as of the Closing
Date; thereafter, the Note Pool Factor shall decline to reflect reductions in
the outstanding principal balance of such Class of Notes.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 2.04 of the Indenture.
"Noteholder" means the Person in whose name a Note is registered on the
Note Register.
"Notes" means the Class A Notes, the Class B Notes, the Class C Notes
and the Class D Notes.
"Obligor" on a Receivable means the purchaser or co-purchasers of the
Financed Asset and any other Person who owes payments under the Receivable.
"Officer's Certificate" means a certificate signed by any Authorized
Officer of the Issuer, under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.01 of the Indenture,
and delivered to the Indenture Trustee and, with respect to any other Basic
Document, means a certificate signed by (i) any vice president and (ii) the
president, treasurer, assistant treasurer, secretary or assistant secretary of
the Servicer (or any other Person specified in any such Basic Document as
delivering an Officer's Certificate). Unless otherwise specified, any reference
in the Indenture to an Officer's Certificate shall be to an Officer's
Certificate signed by any Authorized Officer of the Issuer.
"Opinion of Counsel" means one or more written opinions of counsel who
may, except as otherwise expressly provided in the Indenture, be an employee of
or counsel to the Issuer, the Servicer, the Transferor or the Depositor and who
shall be satisfactory to the Indenture Trustee, and which opinion or opinions
shall be addressed to the Indenture Trustee as Indenture Trustee, shall comply
with any applicable requirements of Section 11.01 of the Indenture and shall be
in form satisfactory to the Indenture Trustee.
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"Original Trust Agreement" is defined in the preamble to the Trust
Agreement.
"Outstanding" means, as of any date of determination, all Notes
theretofore authenticated and delivered under the Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Holders of such Notes
(provided, however, that if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to the Indenture or
provision for such notice has been made, satisfactory to the Indenture
Trustee); and
(iii) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to the Indenture unless
proof satisfactory to the Indenture Trustee is presented that any such
Notes are held by a bona fide purchaser;
provided, that in determining whether the Holders of the requisite
Outstanding Amount of the Notes have given any request, demand,
authorization, direction, notice, consent or waiver under any Basic
Document, (x) Notes owned by the Issuer, any other obligor upon the
Notes, the Depositor, the Transferor or any Affiliate of any of the
foregoing Persons shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Indenture Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that
the Indenture Trustee knows to be so owned shall be so disregarded
(Notes so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Indenture Trustee the pledgee's right so to act with respect to such
Notes and that the pledgee is not the Issuer, any other obligor upon
the Notes, the Depositor, the Transferor or any Affiliate of any of the
foregoing Persons), and (y) clause (ii) of this definition of
Outstanding shall be disregarded; provided further, that when monies
referred to in clause (ii) of this definition are payable to
Noteholders, then the related Notes shall be deemed to be Outstanding
until the principal balances of such Notes shall have been reduced to
zero.
"Outstanding Amount" means the aggregate principal amount of all Notes,
or Class of Notes, as applicable, Outstanding at the date of determination.
"Outstanding Advances" on the Receivables means the sum, as of the
close of business on the last day of a Collection Period, of all Advances as
reduced as provided in Section 5.04 of the Transfer and Servicing Agreement.
"Owner Trust Estate" means all right, title and interest of the Trust
in and to the property and rights assigned to the Trust pursuant to Article II
of the Transfer and Servicing Agreement,
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all funds on deposit from time to time in the Trust Accounts and all other
property of the Trust from time to time, including any rights of the Owner
Trustee and the Trust pursuant to the Transfer and Servicing Agreement.
"Owner Trustee" means Wells Fargo Bank Minnesota, National Association,
a national banking association, not in its individual capacity but solely as
owner trustee under the Trust Agreement, and any successor Owner Trustee
thereunder.
"Parity Principal Distribution Amount" means amounts distributable
pursuant to clause (x) of Section 8.02(c) of the Indenture.
"Paying Agent" means the Indenture Trustee or any other Person that
meets the eligibility standards for the Indenture Trustee specified in Section
6.11 of the Indenture and is authorized by the Issuer to make payments to and
distributions from the Collection Account and the Principal Distribution
Account, including payments of principal of or interest on the Notes on behalf
of the Issuer.
"Payment Default" means an Event of Default that occurs as a result of
(a) a failure of the Trust to pay interest when due on any of the Notes of the
Controlling Class on any Monthly Payment Date, or (b) a failure to pay the
Outstanding Amount of all of the Notes on a date selected for redemption of the
Notes, or (c) a failure of the Trust to pay the Outstanding Amount of the Notes
of a particular class on the Stated Maturity Date for such class of Notes.
"Person" means any individual, corporation, limited liability company,
estate, partnership, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
"Pool Balance" means, as of the close of business on the last day of a
Collection Period, the aggregate Principal Balance of the Receivables as of such
day (excluding Purchased Receivables and Defaulted Receivables).
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.05 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Preferred Mortgage" means a mortgage covering a Financed Boat which is
a "preferred mortgage" within the meaning of Section 31322 of Title 46 of the
United States Code.
"Principal Balance" means, with respect to a Receivable, as of the
close of business on the last day of a Collection Period, the Amount Financed
minus the sum of (i) the portion of all payments made by or on behalf of the
related Obligor on or prior to such date and allocable to
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principal using the Simple Interest Method and (ii) any payment of the Purchase
Amount for such Receivable allocable to principal.
"Principal Distribution Account " means the administrative subaccount
of the Note Distribution Account established and maintained as such pursuant to
Section 5.01.
"Proceeding" means any suit in equity, action at law or other judicial
or administrative proceeding.
"Purchase Amount" means the amount, as of the close of business on the
last day of a Collection Period, required to prepay in full a Receivable under
the terms thereof including interest to the end of such Collection Period.
"Purchased Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by the Servicer pursuant to
Section 4.07 of the Transfer and Servicing Agreement, by DFS pursuant to Section
3.01 of the DFS/Ganis Transfer Agreement, by the Transferor pursuant to Section
3.01 of the Ganis/Depositor Transfer Agreement, or by the Depositor pursuant to
Section 3.01 of the Transfer and Servicing Agreement.
"Rating Agency" means Fitch, Standard & Poor's and Moody's or, if no
such organization or successor is any longer in existence, a nationally
recognized statistical rating organization or other comparable Person designated
by the Depositor, notice of which designation shall be given to the Indenture
Trustee, the Owner Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action, that (i)
each Rating Agency (other than Moody's) shall have been given 10 Business Days
(or such shorter period as is acceptable to each Rating Agency) prior notice
thereof and that each of the Rating Agencies shall have notified any of the
Depositor, the Servicer, the Indenture Trustee, the Owner Trustee or the Issuer
in writing that such action shall not result in a qualification, reduction or
withdrawal of the then current rating of any Class of the Notes, and (ii)
Moody's shall have been given 10 Business Days (or such shorter period as is
acceptable to Moody's) prior notice thereof and copies of all documentation
relating to the event requiring such Rating Agency Condition.
"Receivable" means any Contract listed on Schedule A to the Transfer
and Servicing Agreement (which Schedule may be in the form of microfiche,
computer tape or other computer-readable form).
"Receivable Files" means the documents specified in Section 3.02 of the
Transfer and Servicing Agreement.
"Record Date" means, with respect to any Monthly Payment Date
(including the Redemption Date), the close of business on the day immediately
preceding such Monthly Payment Date or, if Definitive Notes have been issued
pursuant to Section 2.12 of the Indenture, the last day of the month immediately
preceding such Monthly Payment Date.
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"Recoveries" means, with respect to any Receivable that becomes a
Defaulted Receivable, monies collected in respect thereof, from whatever source,
during any Collection Period following the Collection Period in which such
Receivable became a Defaulted Receivable, net of the sum of (i) any amounts
expended by the Servicer for the account of the Obligor and (ii) any amounts
required by law to be remitted to the Obligor.
"Redemption Date" is defined in Section 10.01 of the Indenture.
"Redemption Price" means, in the case of a redemption of the Notes
pursuant to Section 10.01 of the Indenture, an amount equal to the unpaid
principal amount of the Notes redeemed plus accrued and unpaid interest thereon
at the respective Interest Rates for each Class of Notes being so redeemed
through the end of the Interest Accrual Period relating to the applicable
Monthly Payment Date.
"Registered Holder" means the Person in whose name a Note is registered
on the Note Register on the applicable Record Date.
"Registrar of Titles" means, with respect to any state, the
governmental agency or body responsible for the registration of, and the
issuance of certificates of title relating to, motor vehicles and boats and
liens thereon.
"Regular Principal Distribution Amount" means, with respect to any
Monthly Payment Date, an amount not less than zero equal to (x) the decrease in
the Pool Balance during the related Collection Period minus (y) the sum of the
First Priority Principal Distribution Amount, if any, the Second Priority
Principal Distribution Amount, if any, and the Third Priority Principal
Distribution Amount, if any, previously deposited to the Principal Distribution
Account each with respect to such Monthly Payment Date; provided, however, that
the Regular Principal Distribution Amount shall not exceed the Outstanding
Amount of all of the Notes on such Monthly Payment Date (after giving effect to
any principal payments made on the Notes on such Monthly Payment Date in respect
of the First Priority Principal Distribution Amount, if any, the Second Priority
Principal Distribution Amount, if any and the Third Priority Principal
Distribution Amount, if any); and provided, further, that the Regular Principal
Distribution Amount on or after the Stated Maturity Date for the Class D Notes
shall not be less than the amount that is necessary to reduce the Outstanding
Amount of the Class D Notes to zero.
"Reserve Account" means the account designated as such, established and
maintained pursuant to Section 5.01(a) of the Transfer and Servicing Agreement.
"Reserve Account Initial Deposit" means an amount equal to $1,323,668.
"Reserve Account Required Amount" means, with respect to any Monthly
Payment Date, the lesser of $3,971,004 and Outstanding Amount of the Notes.
"Residual Interest" means the beneficial undivided ownership interest
in the Trust.
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"Residual Interestholder" means the Depositor in its capacity as the
owner of the Residual Interest.
"Residual Interestholder Distribution Account" has the meaning
specified in Section 5.01 of the Trust Agreement.
"Responsible Officer" means, with respect to the Indenture Trustee, any
Trust Officer thereof.
"Schedule of Receivables" means the list of the Receivables set forth
in Schedule A to the Transfer and Servicing Agreement (which Schedule may be in
the form of microfiche or computer tape or other computer-readable form).
"Second Priority Principal Distribution Amount" means, with respect to
any Monthly Payment Date, an amount not less than zero equal to (i) the excess,
if any, of (a) the sum of the Outstanding Amount of the Class A Notes and the
Outstanding Amount of the Class B Notes as of the Monthly Payment Date preceding
such Monthly Payment Date (after giving effect to any principal payments made on
the Class A Notes and Class B Notes on the Monthly Payment Date preceding such
Monthly Payment Date) over (b) the Pool Balance at the end of the related
Collection Period, minus (ii) the First Priority Principal Distribution Amount,
if any, deposited to the Principal Distribution Account with respect to such
Monthly Payment Date; provided, however, that the Second Priority Principal
Distribution Amount shall not exceed the Outstanding Amount of the Notes on such
Monthly Payment Date after giving effect to any principal payments made on the
Notes on such Monthly Payment Date in respect of the First Priority Principal
Distribution Amount, if any; and provided, further that the Second Priority
Principal Distribution Amount on or after the Stated Maturity Date for the Class
B Notes shall not be less than the amount that is necessary to reduce the
Outstanding Amount of the Class B Notes to zero.
"Securities" means the Notes.
"Securities Act" means the Securities Act of 1933, as amended.
"Servicer" means DFS, as the servicer of the Receivables, and each
successor to DFS (in the same capacity).
"Servicer Default" has the meaning specified in Section 8.01 of the
Transfer and Servicing Agreement.
"Servicer's Certificate" means a certificate of the Servicer delivered
pursuant to Section 4.09 of the Transfer and Servicing Agreement, substantially
in the form of Exhibit B thereto.
"Servicing Fee" means the fee payable to the Servicer for services
rendered during each Collection Period, determined pursuant to Section 4.08 of
the Transfer and Servicing Agreement.
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"Servicing Fee Rate" means 75 basis points (0.75%) per annum.
"Ship Mortgage Statutes" means the federal ship mortgage statutes of
the United States, as amended from time to time.
"Simple Interest Method" means the method of allocating a payment with
respect to a Receivable to principal and interest, pursuant to which the portion
of such payment that is allocated to interest is equal to the product of the
stated APR multiplied by the unpaid principal balance of the Receivable
multiplied by the period of time elapsed (as a fraction of a calendar year)
since the preceding payment of interest was made and the remainder of such
payment is allocable to reduce the principal.
"Specified Accountants" means KPMG LLP.
"Specified Agreement" has the meaning set forth in Section 2.13(a) of
the Trust Agreement.
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., or its successor.
"State" means any one of the 50 States of the United States of America
or the District of Columbia.
"Stated Maturity Date" means, with respect to (i) the Class A-1 Notes,
the Class A-1 Stated Maturity Date; (ii) the Class A-2 Notes, the Class A-2
Stated Maturity Date; (iii) the Class A-3 Notes, the Class A-3 Stated Maturity
Date; (iv) the Class A-4 Notes, the Class A-4 Stated Maturity Date; (v) the
Class A-5 Notes, the Class A-5 Stated Maturity Date; (vi) the Class B Notes, the
Class B Stated Maturity Date; (viii) the Class C Notes, the Class C Stated
Maturity Date; or (ix) the Class D Notes, the Class D Stated Maturity Date.
"Step Rate Receivable" means a Receivable which provides that the APR
will increase to a different fixed rate from time to time during the term of
such Receivable.
"Successor Servicer" has the meaning specified in Section 3.07(e) of
the Indenture.
"Third Priority Principal Distribution Amount" means, with respect to
any Monthly Payment Date, an amount not less than zero equal to (i) the excess,
if any, of (a) the sum of the Outstanding Amount of the Class A Notes, the
Outstanding Amount of the Class B Notes and the Outstanding Amount of the Class
C Notes as of the Monthly Payment Date preceding such Monthly Payment Date
(after giving effect to any principal payments made on the Class A Notes, Class
B Notes and Class C Notes on the Monthly Payment Date preceding such Monthly
Payment Date) over (b) the Pool Balance at the end of the related Collection
Period preceding such Monthly Payment Date, minus (ii) the First Priority
Principal Distribution Amount, if any, and the Second Priority Principal
Distribution Amount, if any, deposited to the Principal
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Distribution Account with respect to such Monthly Payment Date; provided,
however, that the Third Priority Principal Distribution Amount shall not exceed
the Outstanding Amount of the Notes on such Monthly Payment Date after giving
effect to any principal payments made on the Notes on such Monthly Payment Date
in respect of the First Priority Principal Distribution Amount, if any, and the
Second Priority Principal Distribution Amount, if any; and provided, further
that the Third Priority Principal Distribution Amount on or after the Stated
Maturity Date for the Class C Notes shall not be less than the amount that is
necessary to reduce the Outstanding Amount of the Class C Notes to zero.
"Title Document" means (a) with respect to any Financed Boat subject to
the Ship Mortgage Statutes, the documents (e.g., an abstract of title or a
certificate of ownership issued by the Coast Guard) evidencing that a Preferred
Mortgage has been duly recorded with the Coast Guard; and (b) with respect to
any Financed Boat not subject to the Ship Mortgage Statutes, an original
certificate of title, certificate of lien or other notification issued by the
Registrar of Titles of the applicable State to a secured party which indicates
that the lien of the secured party on the Financed Boat is recorded on the
original certificate of title, provided that in any jurisdiction in which the
original certificate of title is required to be given to the Obligor, the term
"Title Document" means only a certificate or notification issued to a secured
party by such Registrar of Titles.
"Total Distribution Amount" means, with respect to any Monthly Payment
Date, the sum of the following amounts, without duplication, with respect to the
Receivables in respect of the Collection Period preceding such Monthly Payment
Date: (1) all collections on Receivables allocable to interest and principal,
(2) all Liquidation Proceeds or other collections attributable to accrued
interest on or the principal amount of Receivables that became Defaulted
Receivables during such Collection Period, plus interest on amounts in the
Reserve Account, (3) all Advances made by the Servicer, (4) the Purchase Amount
of each Receivable that became a Purchased Receivable during such Collection
Period, (5) all Recoveries and (6) partial payments relating to refunds of
extended warranty protection plan costs or of physical damage, credit life or
disability insurance policy premiums, but only if such costs or premiums were
financed by the respective Obligors thereon as of the date of the original
contract and only to the extent not included under clause (1) above; provided,
however, that in calculating the Total Distribution Amount the following shall
be excluded: (i) all payments and proceeds (including Liquidation Proceeds) of
any Purchased Receivables, the Purchase Amount of which has been included in the
Total Distribution Amount in a prior Collection Period; (ii) amounts received in
respect of interest on the Receivables (which amounts shall be determined based
on the Simple Interest Method) during such preceding Collection Period in excess
of the amount of interest that would be due on the aggregate Principal Balance
of the Receivables during such Collection Period at their respective APRs if a
payment were received on each Receivable during such Collection Period on the
date payment is due under the terms of such Receivable; (iii) late payments of
interest to the extent applied to reimbursement of Servicer Advances; and (iv)
Liquidation Proceeds with respect to a Receivable attributable to accrued and
unpaid interest thereon (but not including interest for the then current
Collection Period) but only to the extent of any unreimbursed Advances.
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"Total Required Payment" means, with respect to any Monthly Payment
Date, the sum of the Servicing Fee and all unpaid Servicing Fees from prior
Collection Periods, the accrued and unpaid interest on the Class A Notes, the
First Priority Principal Distribution Amount, the accrued and unpaid interest on
the Class B Notes, the Second Priority Principal Distribution Amount, the
accrued and unpaid interest on the Class C Notes, the Third Priority Principal
Distribution Amount, the accrued and unpaid interest on the Class D Notes, and
the Regular Principal Distribution Amount; provided, however, that following the
occurrence and during the continuation of an Event of Default which has resulted
in an acceleration of the Notes, on any Monthly Payment Date until the Monthly
Payment Date on which the Outstanding Amount of all the Notes has been paid in
full, the Total Required Payment shall mean the sum of the Servicing Fee and all
unpaid Servicing Fees from prior Collection Periods, the accrued and unpaid
interest on the Class A Notes, the Class B Notes, the Class C Notes, the Class D
Notes and the amount necessary to reduce the Outstanding Amount of all the Notes
to zero.
"Transfer and Servicing Agreement" means the Transfer and Servicing
Agreement dated as of November 1, 2001 among the Issuer, the Depositor, and DFS,
as Servicer, as the same may be amended, amended and restated or otherwise
modified from time to time.
"Transferor" means Ganis.
"Transferor Conveyed Property" has the meaning specified in Section
2.01 of the Ganis/Depositor Transfer Agreement.
"Transferor Receivables" has the meaning specified in Section 2.01 of
the Ganis/Depositor Transfer Agreement.
"Treasury Regulations" means regulations, including proposed or
temporary Regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trigger Event" will be in effect for a Monthly Payment Date commencing
with the Crossover Date if one of the following conditions occur:
- the Average Sixty-Day Delinquency Ratio as of the last day of
the related Collection Period exceeds 5.00%;
- the Cumulative Realized Losses as of the last day of the
related Collection Period exceeds the following percentages of
the original Pool Balance for the specified Monthly Payment
Date:
December 2005 through November 2006.....................3.50%
December 2006 through November 2007.....................4.25%
December 2007 and after.................................5.00%
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- the amount on deposit in the Reserve Account for two
consecutive Monthly Payment Dates is less than the Reserve
Account Required Amount, provided that this Trigger Event will
no longer be in effect if the amount on deposit in the Reserve
Account for three consecutive Monthly Payment Dates thereafter
equals the Reserve Account Required Amount; or
- the Outstanding Amount of the Notes immediately preceding the
Monthly Payment Date is greater than the Pool Balance as of
the last day of the second Collection Period preceding the
Monthly Payment Date.
"Trust" means the Issuer.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the form of
deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise), and all proceeds of the foregoing.
"Trust Accounts" has the meaning specified in Section 5.01 in the
Transfer and Servicing Agreement.
"Trust Agreement" means the Amended and Restated Trust Agreement dated
as of November 1, 2001 between the Depositor and the Owner Trustee, as the same
may be further amended, amended and restated or otherwise modified from time to
time.
"Trust Estate" means all money, instruments, rights and other property
that are subject or intended to be subject to the lien and security interest of
the Indenture for the benefit of the Noteholders (including, without limitation,
all property and interests Granted to the Indenture Trustee), including all
proceeds thereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as
in force on the Closing Date, unless otherwise specifically provided.
"Trust Officer" means (i) in the case of the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee, including
any Vice President, Assistant Vice President, Senior Trust Officer, Trust
Officer, Secretary, Assistant Secretary or any other officer of the Indenture
Trustee customarily performing functions similar to those performed by any of
the above designated officers 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 the particular subject, and (ii) in the case
of the Owner Trustee, any officer in the Corporate Trust Administration
Department of the Owner Trustee with direct responsibility for the
administration of the Trust Agreement and the other Basic Documents on behalf of
the Owner Trustee.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction, as amended from time
to time.
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"Uncertificated Item" means an "uncertificated security" as defined in
Section 8-102(a)(18) of the UCC.
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SCHEDULE A
Schedule of Receivables
Delivered to the Owner Trustee and Indenture Trustee at Closing
A-26
SCHEDULE B
Location of Receivable Files
600 Anton Blvd.
Costa Mesa, CA 92626
EXHIBIT A
DISTRIBUTION FINANCIAL SERVICES RVMARINE TRUST 2001-1
MONTHLY PAYMENT DATE STATEMENT TO NOTEHOLDERS
Pool Balance
Distribution Allocable to Principal on Notes
Class A-1 Notes: ($ per $1,000 original principal amount)
Class A-2 Notes: ($ per $1,000 original principal amount)
Class A-3 Notes: ($ per $1,000 original principal amount)
Class A-4 Notes: ($ per $1,000 original principal amount)
Class A-5 Notes: ($ per $1,000 original principal amount)
Class B Notes: ($ per $1,000 original principal amount)
Class C Notes: ($ per $1,000 original principal amount)
Class D Notes: ($ per $1,000 original principal amount)
Distribution Allocable to Interest on Notes
Class A-1 Notes: ($ per $1,000 original principal amount)
Class A-2 Notes: ($ per $1,000 original principal amount)
Class A-3 Notes: ($ per $1,000 original principal amount)
Class A-4 Notes: ($ per $1,000 original principal amount)
Class A-5 Notes: ($ per $1,000 original principal amount)
Class B Notes: ($ per $1,000 original principal amount)
Class C Notes: ($ per $1,000 original principal amount)
Class D Notes: ($ per $1,000 original principal amount)
Note Balance After Giving Effect to Principal Distributions on Notes
Class A-1 Notes
Class A-2 Notes
Class A-3 Notes
Class A-4 Notes
Class A-5 Notes
Class B Notes
Class C Notes
Class D Notes
Note Pool Factor
Class A-1 Notes
Class A-2 Notes
Class A-3 Notes
Class A-4 Notes
Class A-5 Notes
A-1
Class B Notes
Class C Notes
Class D Notes
Servicing Fee
Servicing Fee Per $1,000 Note
Reserve Account Balance
Payments Received with Respect to Receivables During Most Recently Ended
Collection Period
Amounts Allocated or Distributed on the Preceding Monthly Payment Date
(including reconciliation of such amounts with information provided by the
Servicer prior to current Monthly Payment Date)
Distribution to Residual Interestholder
Aggregate Purchase Amounts for Receivables, if any, that were purchased in the
related Collection Period
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EXHIBIT B
SERVICER'S MONTHLY CERTIFICATE
DISTRIBUTION FINANCIAL SERVICES RV/MARINE TRUST 2001-1
Determination Date:
Monthly Payment Date:
Collection Period Ending:
I. Collection Account Summary
Total Available Funds:
Principal and Interest Payments Received (including Prepayments):
Net Liquidation Proceeds (including Rebates/Insurance Amounts):
Current Monthly Interest Advance:
Amount of Withdrawal, if any, from Reserve Account:
Purchase Amounts for Purchased Receivables:
Total Distribution Amount Sent to Trustee:
II. Excess or Shortfalls
Amount of Interest Payments Due During the Collection Period for
Receivables:
Amount of Interest Payments Received During the Collection Period for
Receivables:
Amount of Current Month Excess/Shortfall:
III. Calculation of Reserve Account Deposit/Withdrawals
Reserve Account Required Amount:
Beginning Reserve Account Balance:
Deposits to Reserve Account (only if Reserve Account less than the Reserve
Account Required Amount):
B-1
Withdrawals from Reserve Account (to the extent there are shortfalls on
payments of Interest or Principal):
Amount in Reserve Account as of Determination Date (excluding amount to
be paid on next Monthly Payment Date):
Total Ending Reserve Account Balance:
IV. Collections on Receivables
(a) Interest and Principal Payments Received:
Interest Payments Received:
Scheduled Principal Payments Received:
Principal Prepayments Received:
Total Interest and Principal Payments Received:
(b) Liquidation Proceeds:
Gross Proceeds of Defaulted Receivables (including
Rebates/Insurance):
minus: Reasonable Expenses:
Net Liquidation Proceeds:
Allocation of Liquidation Proceeds:
Amount Allocable to Interest Payments:
Amount Allocable to Principal Payments:
(c) Purchase Amount--Receivables purchased from Trust:(1)
Amount Allocable to Interest:
Amount Allocable to Principal:
Total Collected Funds:
V. Calculation of Servicing and Trustee Fees:
Pool Balance of Receivables as of First Day of Collection Period:
multiplied by Servicing Fee Rate:
divided by Months per Year:
Servicing Fee Amount:
Pool Balance of Receivables as of First Day of Collection Period:
multiplied by Trustee Fee Rate:
divided by Months per Year:
Trustee Fee Amount:
- --------
(1) Identify pursuant to Section 4.09 of the Transfer and Servicing
Agreement.
B-2
VI. Pool Balance and Portfolio Performance
(a) Pool Balance:
Initial Pool Balance:
Pool Balance as of Preceding Accounting Date:
Pool Balance as of Current Accounting Date
Age of Pool in Months:
(b) Default and Delinquency Performance (Includes Repossessions
and Bankruptcies):
Current Month Number of Loans Principal Balance Percentage
------------- --------------- ----------------- ----------
30 - 59 Days Delinquent
60 - 89 Days Delinquent
90+ Days Delinquent
Defaults
Cumulative Defaults
Schedule of Liquidated Receivables
Description of Boat or Vehicle
Account Number
Original Principal Balance of the Liquidated Receivables
Outstanding Principal Balance of the Liquidated Receivables
Gross Recovery
Net of Expenses
Chargeoff Date
Repossession Date
Liquidation Date
Current Period Defaulted Receivables:
Description of Boat or Vehicle
Account Number
Original Principal Balance of the Defaulted Receivables
Outstanding Principal Balance of the Defaulted Receivables
Recovery Net of Expenses
Chargeoff Date
Schedule of Repossession Inventory
Description of Vehicle
Account Number
Original Principal Balance of the Defaulted Receivables
B-3
Outstanding Principal Balance of the Defaulted Loan
Recovery Net of Expenses
Chargeoff Date
Repossession Date
VII. Distributions of the Total Distributable Amount
Total Pool Factor:
Note Pool Factor:
A. Monthly Servicing Fee and any unpaid servicing fees from prior
Monthly Payment Dates:
Servicer Reimbursements for Mistaken Deposits or Postings of Checks
Returned for Insufficient Funds (not Otherwise Reimbursed to Servicer):
VIII. Pool Statistics
Weighted Average Annual Percentage Rate
Weighted Average Remaining Term
B-4
EXHIBIT C
FINAL CERTIFICATION OF CUSTODIAN
(date)
(to be addressed to the
Indenture Trustee)
Re: Transfer and Servicing Agreement dated as of November 1, 2001,
among Distribution Financial Services RV/Marine Trust 2001-1,
Deutsche Recreational Asset Funding Corporation, and Deutsche
Financial Services Corporation, as Servicer (the "Agreement")
Gentlemen:
In accordance with the provisions of Section 3.02 of the
above-referenced Agreement, the undersigned, as custodian, hereby certifies that
as to each Receivable listed in the Schedule of Receivables, it has reviewed the
related Receivable File and has determined that (i) all documents required to be
delivered to it pursuant to the Agreement are in its possession, (ii) such
documents have been reviewed by it and appear regular on their face and relate
to such Receivable (for each of the Receivables listed on the attachment hereto
a certified confirmation of the lien is included in the Receivables File in lieu
of a fully executed original Title Document or Lien Certificate or application
therefor), and (iii) based on its examination and only as to the foregoing
documents, the information set forth in the Schedule of Receivables respecting
such Receivable is correct. Capitalized terms used but not defined herein shall
have the meanings provided by the Agreement.
DEUTSCHE FINANCIAL SERVICES
CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
C-1