EXHIBIT 4.3
INDENTURE
between
DISTRIBUTION FINANCIAL SERVICES MARINE TRUST 1999-2,
as Issuer
and
THE CHASE MANHATTAN BANK,
as Indenture Trustee
Dated as of May 1, 1999
TABLE OF CONTENTS
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01 Definitions................................................................. -2-
SECTION 1.02 Incorporation by Reference of Trust Indenture Act........................... -2-
SECTION 1.03 Rules of Construction....................................................... -2-
ARTICLE II
The Notes
SECTION 2.01 Form........................................................................ -3-
SECTION 2.02 Execution, Authentication and Delivery...................................... -3-
SECTION 2.03 Temporary Notes............................................................. -4-
SECTION 2.04 Registration; Registration of Transfer and Exchange......................... -4-
SECTION 2.05 Mutilated, Destroyed, Lost or Stolen Notes.................................. -5-
SECTION 2.06 Persons Deemed Owner........................................................ -6-
SECTION 2.07 Payment of Principal and Interest; Defaulted Interest....................... -7-
SECTION 2.08 Cancellation................................................................ -8-
SECTION 2.09 Reserved.................................................................... -8-
SECTION 2.10 Book-Entry Notes............................................................ -8-
SECTION 2.11 Notices to Clearing Agency.................................................. -9-
SECTION 2.12 Definitive Notes............................................................ -9-
SECTION 2.13 Tax Treatment............................................................... -9-
ARTICLE III
Covenants
SECTION 3.01 Payment of Principal and Interest........................................... -10-
SECTION 3.02 Maintenance of Office or Agency............................................. -10-
SECTION 3.03 Money for Payments To Be Held in Trust...................................... -10-
SECTION 3.04 Existence................................................................... -12-
SECTION 3.05 Protection of Trust Estate.................................................. -12-
SECTION 3.06 Opinions as to Trust Estate................................................. -12-
SECTION 3.07 Performance of Obligations; Servicing of Receivables........................ -13-
SECTION 3.08 Negative Covenants.......................................................... -14-
SECTION 3.09 Annual Statement as to Compliance........................................... -15-
SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms......................... -15-
SECTION 3.11 Successor or Transferee..................................................... -17-
SECTION 3.12 No Other Business........................................................... -17-
SECTION 3.13 No Borrowing................................................................ -18-
SECTION 3.14 Servicer's Obligations...................................................... -18-
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities........................... -▇▇-
-▇-
▇▇▇▇▇▇▇ ▇.▇▇ ▇▇▇▇▇▇▇ Expenditures....................................................... -18-
SECTION 3.17 (Reserved)................................................................. -18-
SECTION 3.18 Restricted Payments........................................................ -18-
SECTION 3.19 Notice of Events of Default................................................ -18-
SECTION 3.20 Further Instruments and Acts............................................... -18-
ARTICLE IV
Satisfaction and Discharge
SECTION 4.01 Satisfaction and Discharge of Indenture.................................... -19-
SECTION 4.02 Application of Trust Money................................................. -20-
SECTION 4.03 Repayment of Moneys Held by Paying Agent................................... -20-
ARTICLE V
Remedies
SECTION 5.01 Events of Default.......................................................... -20-
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment......................... -21-
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by Indenture
Trustee.................................................................... -22-
SECTION 5.04 Remedies; Priorities....................................................... -24-
SECTION 5.05 Optional Preservation of the Receivables................................... -26-
SECTION 5.06 Limitation of Suits........................................................ -26-
SECTION 5.07 Unconditional Rights of Noteholders To Receive Principal and
Interest................................................................... -27-
SECTION 5.08 Restoration of Rights and Remedies......................................... -27-
SECTION 5.09 Rights and Remedies Cumulative............................................. -27-
SECTION 5.10 Delay or Omission Not a Waiver............................................. -27-
SECTION 5.11 Control by Noteholders..................................................... -27-
SECTION 5.12 Waiver of Past Defaults.................................................... -28-
SECTION 5.13 Undertaking for Costs...................................................... -28-
SECTION 5.14 Waiver of Stay or Extension Laws........................................... -29-
SECTION 5.15 Action on Notes............................................................ -29-
SECTION 5.16 Performance and Enforcement of Certain Obligations......................... -29-
ARTICLE VI
The Indenture Trustee
SECTION 6.01 Duties of Indenture Trustee................................................ -30-
SECTION 6.02 Rights of Indenture Trustee................................................ -31-
SECTION 6.03 Individual Rights of Indenture Trustee..................................... -32-
SECTION 6.04 Indenture Trustee's Disclaimer............................................. -32-
SECTION 6.05 Notice of Defaults......................................................... -32-
SECTION 6.06 Reports by Indenture Trustee to Holders.................................... -32-
SECTION 6.07 Compensation and Indemnity................................................. -33-
SECTION 6.08 Replacement of Indenture Trustee........................................... -33-
-ii-
SECTION 6.09 Successor Indenture Trustee by Merger........................................ -34-
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee............ -35-
SECTION 6.11 Eligibility; Disqualification................................................ -36-
SECTION 6.12 Preferential Collection of Claims Against Issuer............................. -36-
SECTION 6.13 Representations and Warranties............................................... -36-
SECTION 6.14 Notice of Events............................................................. -37-
ARTICLE VII
Noteholders' Lists and Reports
SECTION 7.01 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders....... -37-
SECTION 7.02 Preservation of Information; Communications to Noteholders................... -37-
SECTION 7.03 Reports by Issuer............................................................ -37-
SECTION 7.04 Reports by Indenture Trustee................................................. -38-
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.01 Collection of Money.......................................................... -38-
SECTION 8.02 Trust Accounts............................................................... -39-
SECTION 8.03 General Provisions Regarding Accounts........................................ -40-
SECTION 8.04 Release of Trust Estate...................................................... -41-
SECTION 8.05 Opinion of Counsel........................................................... -42-
ARTICLE IX
Supplemental Indentures
SECTION 9.01 Supplemental Indentures Without Consent of Noteholders....................... -42-
SECTION 9.02 Supplemental Indentures with Consent of Noteholders.......................... -43-
SECTION 9.03 Execution of Supplemental Indentures......................................... -45-
SECTION 9.04 Effect of Supplemental Indenture............................................. -45-
SECTION 9.05 Conformity with Trust Indenture Act.......................................... -45-
SECTION 9.06 Reference in Notes to Supplemental Indentures................................ -45-
ARTICLE X
Redemption of Notes
SECTION 10.01 Redemption.................................................................. -46-
SECTION 10.02 Form of Redemption Notice................................................... -46-
SECTION 10.03 Notes Payable on Redemption Date............................................ -46-
-iii-
ARTICLE XI
Miscellaneous
SECTION 11.01 Compliance Certificates and Opinions, etc....................................... -47-
SECTION 11.02 Form of Documents Delivered to Indenture Trustee................................ -49-
SECTION 11.03 Acts of Noteholders............................................................. -49-
SECTION 11.04 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies................. -50-
SECTION 11.05 Notices to Noteholders; Waiver.................................................. -51-
SECTION 11.06 Alternate Payment and Notice Provisions......................................... -51-
SECTION 11.07 Conflict with Trust Indenture Act............................................... -51-
SECTION 11.08 Effect of Headings and Table of Contents........................................ -52-
SECTION 11.09 Successors and Assigns.......................................................... -52-
SECTION 11.10 Separability.................................................................... -52-
SECTION 11.11 Benefits of Indenture........................................................... -52-
SECTION 11.12 Legal Holidays.................................................................. -52-
SECTION 11.13 GOVERNING LAW................................................................... -52-
SECTION 11.14 Counterparts.................................................................... -52-
SECTION 11.15 Recording of Indenture.......................................................... -52-
SECTION 11.16 Trust Obligation................................................................ -52-
SECTION 11.17 No Petition.................................................................... -53-
SECTION 11.18 No Prohibited Transaction....................................................... -53-
SECTION 11.19 Inspection...................................................................... -53-
SECTION 11.20 Submission to Jurisdiction...................................................... -54-
EXHIBIT A - Form of Note (Section 2.01)
-iv-
CROSS REFERENCE TABLE/1/
TIA Indenture
Section Section
310 (a) (1)................................................. 6.11
(a) (2)................................................. 6.11
(a) (3)................................................. 6.10
(a) (4)................................................. N.A/2/
(a) (5)................................................. 6.11
(b)..................................................... 6.08; 6.11
(c)..................................................... N.A.
311 (a)..................................................... 6.12
(b)..................................................... 6.12
(c)..................................................... N.A.
312 (a)..................................................... 7.01
(b)..................................................... 7.02
(c)..................................................... 7.02
(d)..................................................... 7.04
313 (a)..................................................... 7.04
(b) (1)................................................. 7.04
(b) (2)................................................. 7.04; 11.5
(c)..................................................... 7.04
(d)..................................................... 7.03
314 (a)..................................................... 11.01
(b)..................................................... 11.15
(c) (1)................................................. 11.01
(c) (2)................................................. 11.01
(c) (3)................................................. 11.01
(d)..................................................... 11.01
(e)..................................................... 11.01
(f)..................................................... 11.01
315 (a)..................................................... 6.01
(b)..................................................... 6.05; 11.05
(c)..................................................... 6.01
(d)..................................................... 6.01
(e)..................................................... 5.13
316 (a) (last sentence)..................................... 2.07
(a) (1) (A)............................................. 5.11
(a) (1) (B)............................................. 5.12
________________________
/1/ Note: This Cross Reference Table shall not, for any purpose, be
deemed to be part of this Indenture.
/2/ N.A. means Not Applicable.
-v-
(a) (2)............................................ 5.11
(b)................................................ 5.07
(c)................................................ N.A.
317 (a) (1)............................................ 5.03
(a) (2)............................................ 5.03
(b)................................................ 3.03
318 (a)................................................ ▇▇.▇▇
-▇▇-
▇▇▇▇▇▇▇▇▇ dated as of May 1, 1999, between DISTRIBUTION FINANCIAL SERVICES
MARINE TRUST 1999-2, a New York common law trust (the "Issuer"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, as trustee and not in its
individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Issuer's Class A-1 Asset Backed
Notes, Class A-2 Asset Backed Notes, Class A-3 Asset Backed Notes, Class A-4
Asset Backed Notes, Class A-5 Asset Backed Notes, Class B Asset Backed Notes and
Class C Asset Backed Notes (together, the "Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date, as
Indenture Trustee for the benefit of the Holders of the Notes, all of the
Issuer's right, title and interest in, to and under: (a) the Receivables and all
moneys received thereon on and after the Cutoff Date; (b) the security interests
in the Financed Boats (other than the Federally Documented Boats) created
pursuant to the Receivables and any other interest of the Issuer in such
Financed Boats; (c) any proceeds with respect to the Receivables under any
Insurance Policies; (d) any proceeds from recourse to Dealers; (e) any Financed
Boat acquired in repossession; (f) the contents of the Receivable Files and all
rights, benefits and proceeds arising therefrom or in connection therewith; (g)
all funds on deposit from time to time in the Trust Accounts, and all
investments and proceeds thereof (including all income thereon); (h) the
Transfer and Servicing Agreement and the Boat Mortgage Trust Agreement (but
only, in the case of the Boat Mortgage Agreement, to the extent relating to the
Federally Documented Boats); and (i) all present and future claims, demands,
causes of action and choses in action in respect of any or all of the foregoing
and all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including all proceeds of
the conversion thereof, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of principal of
and interest on, and any other amounts owing in respect of, the Notes, equally
and ratably without prejudice, priority or distinction (subject to the terms of
this Indenture), and to secure compliance with the provisions of this Indenture,
all as provided in this Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the
Notes, acknowledges such Grant and accepts the trusts under this Indenture in
accordance with the provisions of this Indenture.
ARTICLE I
Definitions and Incorporation by Reference
------------------------------------------
SECTION 1.01 Definitions. Except as otherwise specified herein or as the
-----------
context may otherwise require, capitalized terms used herein have the respective
meanings set forth in Appendix A to the Transfer and Servicing Agreement, dated
the same date as this Indenture, among Distribution Financial Services Marine
Trust 1999-2 (the "Issuer"), Deutsche Recreational Asset Funding Corporation
(the "Depositor"), and Deutsche Financial Services Corporation, as the
Servicer.
SECTION 1.02 Incorporation by Reference of Trust Indenture Act. Whenever
-------------------------------------------------
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
SECTION 1.03 Rules of Construction. Unless the context otherwise requires:
---------------------
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles
as in effect from time to time;
(iii) "or" is not exclusive;
-2-
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words in the plural
include the singular; and
(vi) any agreement (including the Transfer and Servicing Agreement
referred to above), 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.
ARTICLE II
The Notes
---------
SECTION 2.01 Form. The Notes, together with the Indenture Trustee's
----
certificate of authentication, shall be in substantially the form set forth in
Exhibit A, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution of the Notes.
Any portion of the text of any Note may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Note.
The definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of the
Notes set forth in Exhibit A are part of the terms of this Indenture.
SECTION 2.02 Execution, Authentication and Delivery. The Notes shall be
--------------------------------------
executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals who were at
any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Indenture Trustee shall upon Issuer Order authenticate and deliver
Class A-1 Notes for original issue in an aggregate principal amount of
$211,098,000, Class A-2 Notes for original issue in an aggregate principal
amount of $55,567,000, Class A-3 Notes for original issue in an aggregate
-3-
principal amount of $108,129,000, Class A-4 Notes for original issue in an
aggregate principal amount of $66,207,000, Class A-5 Notes for original issue in
an aggregate principal amount of $53,999,000, Class B Notes for original issue
in an aggregate principal amount of $33,000,000, and Class C Notes for original
issue in an aggregate principal amount of $22,000,000. The aggregate principal
amount of Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes,
Class A-5 Notes, Class B Notes and Class C Notes outstanding at any time may not
exceed such respective amounts except as provided in Section 2.05.
Each Note shall be dated the date of its authentication. The Notes shall
be issuable as registered Notes in the minimum denomination of $1,000 and in
integral multiples thereof.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose, unless there appears on such Note a certificate
of authentication substantially in the form provided for herein executed by the
Indenture Trustee by the manual signature of one of its authorized officers, and
such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder.
SECTION 2.03 Temporary Notes. Pending the preparation of definitive Notes,
---------------
the Issuer may execute, and upon receipt of an Issuer Order the Indenture
Trustee shall authenticate and deliver, temporary Notes that are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the definitive Notes in lieu of which they are issued and with such variations
not inconsistent with the terms of this Indenture as the officers executing such
Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuer shall cause definitive Notes to
be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes at the office or agency of the Issuer to be
maintained as provided in Section 3.02, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, the Issuer shall
execute, and the Indenture Trustee shall authenticate and deliver in exchange
therefor, a like principal amount of definitive Notes of authorized
denominations and of the same Class. Until so exchanged, the temporary Notes
shall in all respects be entitled to the same benefits under this Indenture as
definitive Notes.
SECTION 2.04 Registration; Registration of Transfer and Exchange. The
---------------------------------------------------
Issuer shall cause to be kept a register (the "Note Register") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Notes and the registration of transfers of Notes. The
Indenture Trustee initially shall be the "Note Registrar" for the purpose of
registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Note Registrar, the Issuer shall promptly appoint a successor
or, if it elects not to make such an appointment, assume the duties of Note
Registrar and shall promptly notify the Noteholders of such appointment or
assumption.
If a Person other than the Indenture Trustee is appointed by the Issuer as
Note Registrar, the Issuer shall give the Indenture Trustee prompt written
notice of the appointment of such Note
-4-
Registrar and of the location, and any change in the location, of the Note
Register, and the Indenture Trustee shall have the right to inspect the Note
Register at all reasonable times and to obtain copies thereof, and the Indenture
Trustee shall have the right to rely upon a certificate executed on behalf of
the Note Registrar by an Executive Officer thereof as to the names and addresses
of the Holders of the Notes and the principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the office or
agency of the Issuer to be maintained as provided in Section 3.02, the Issuer
shall execute, and the Indenture Trustee shall authenticate and the Noteholder
shall obtain from the Indenture Trustee, in the name of the designated
transferee or transferees, one or more new Notes of the same Class in any
authorized denominations, of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes of the
same Class in any authorized denominations, of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, the Issuer shall
execute, and the Indenture Trustee shall authenticate and the Noteholder shall
obtain from the Indenture Trustee, the Notes which the Noteholder making the
exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by, the
Holder thereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements may include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Exchange Act.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 2.03 or 9.06 not involving any transfer.
The preceding provisions of this Section notwithstanding, the Issuer shall
not be required to make and the Note Registrar need not register transfers or
exchanges of Notes selected for redemption or of any Note for a period of 15
days preceding the due date for any payment with respect to the Note.
SECTION 2.05 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
------------------------------------------
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction
-5-
of the destruction, loss or theft of any Note, and (ii) there is delivered to
the Indenture Trustee such security or indemnity as may be required by it to
hold the Issuer and the Indenture Trustee harmless, then, in the absence of
notice to the Issuer, the Note Registrar or the Indenture Trustee that such Note
has been acquired by a bona fide purchaser, the Issuer shall execute, and upon
its request the Indenture Trustee shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
replacement Note of the same Class; provided, however, that if any such
destroyed, lost or stolen Note, but not a mutilated Note, shall have become or
within seven days shall be due and payable, or shall have been called for
redemption, instead of issuing a replacement Note, the Issuer may pay such
destroyed, lost or stolen Note when so due or payable or upon the Redemption
Date without surrender thereof. If, after the delivery of such replacement Note
or payment of a destroyed, lost or stolen Note pursuant to the proviso to the
preceding sentence, a bona fide purchaser of the original Note in lieu of which
such replacement Note was issued presents for payment such original Note, the
Issuer and the Indenture Trustee shall be entitled to recover such replacement
Note (or such payment) from the Person to whom it was delivered or any Person
taking such replacement Note from such Person to whom such replacement Note was
delivered or any assignee of such Person, except a bona fide purchaser, and
shall be entitled to recover upon the security or indemnity provided therefor to
the extent of any loss, damage, cost or expense incurred by the Issuer or the
Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section, the Issuer
may require the payment by the Holder of such Note of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other reasonable expenses (including the fees and expenses of the Indenture
Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in replacement of
any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.06 Persons Deemed Owner. Prior to due presentment for
--------------------
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination except as provided in
Section 2.07) as the owner of such Note for the purpose of receiving payments of
principal of and interest, if any, on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and none of the Issuer, the
Indenture Trustee or any agent of the Issuer or the Indenture Trustee shall be
affected by notice to the contrary.
-6-
SECTION 2.07 Payment of Principal and Interest; Defaulted Interest.
-----------------------------------------------------
(a) 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 and the Class C Notes
shall accrue interest at the Class A-1 Interest Rate, the Class A-2 Interest
Rate, the Class A-3 Interest Rate, the Class A-4 Interest Rate, the Class A-5
Interest Rate, the Class B Interest Rate and the Class C Interest Rate,
respectively, and such interest shall be due and payable on each Monthly Payment
Date. Any installment of interest or principal payable on a Note that is
punctually paid or duly provided for by the Issuer on the applicable Monthly
Payment Date shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered at the close of business on the Record Date by
check mailed first-class postage prepaid to such Person's address as it appears
on the Note Register on such Record Date, except that, unless Definitive Notes
have been issued pursuant to Section 2.12, with respect to Notes registered at
the close of business on the Record Date in the name of the nominee of the
Clearing Agency (initially, such nominee shall be Cede & Co.), payment shall be
made by wire transfer in immediately available funds to the account designated
by such nominee, except for the final installment of principal payable with
respect to such Note on a Monthly Payment Date or on the applicable class Stated
Maturity Date (and except for the Redemption Price for any Note called for
redemption pursuant to Section 10.01) which shall be payable as provided below.
The funds represented by any such checks returned undelivered shall be held in
accordance with Section 3.03.
(b) The principal of each Note shall be payable in installments on each
Monthly Payment Date; provided, however, that the entire unpaid principal amount
of each Note shall be due and payable on the applicable class Stated Maturity
Date. Notwithstanding the foregoing, the entire unpaid principal amount of the
Notes shall be due and payable, if not previously paid, if an Event of Default
shall have occurred and be continuing and if the Indenture Trustee or the
Majority Noteholders have declared the Notes to be immediately due and payable
in the manner provided in Section 5.02. All principal and interest payments on
each Class of Notes shall be made pro rata to the Noteholders of such Class
entitled thereto. The Indenture Trustee shall notify the Person in whose name a
Note is registered at the close of business on the Record Date preceding the
Monthly Payment Date on which the Issuer expects that the final installment of
principal of and interest on such Note shall be paid if the Issuer or the
Servicer has notified the Indenture Trustee of such expectation at least five
Business Days prior to such Record Date. Such notice shall be mailed or
transmitted by facsimile prior to such final Monthly Payment Date and shall
specify that such final installment shall be payable to the Holder of record as
of the applicable Record Date only upon presentation and surrender of such Note
and shall specify the place where such Note may be presented and surrendered for
payment of such installment. Notices in connection with redemptions of Notes
shall be mailed to Noteholders as provided in Section 10.02.
(c) If any interest payable on any Class of Notes is not paid on any
Monthly Payment Date, interest on such unpaid interest shall accrue at the
applicable Interest Rate, and to the extent unpaid shall be due and payable on
succeeding Monthly Payment Dates, to the extent permitted by law.
-7-
(d) A Noteholder's portion of the aggregate outstanding principal balance
of the related Class of Notes is the product of (i) the original denomination of
such Noteholder's Notes and (ii) the applicable Note Pool Factor.
SECTION 2.08 Cancellation. All Notes surrendered for payment, registration
------------
of transfer, exchange or redemption shall, if surrendered to any Person other
than the Indenture Trustee, be delivered to the Indenture Trustee and shall be
promptly cancelled by the Indenture Trustee. The Issuer may at any time deliver
to the Indenture Trustee for cancellation any Notes previously authenticated and
delivered hereunder which the Issuer may have acquired in any manner whatsoever,
and all Notes so delivered shall be promptly cancelled by the Indenture Trustee.
No Notes shall be authenticated in lieu of or in exchange for any Notes
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Notes may be held or disposed of by the Indenture
Trustee in accordance with its standard retention or disposal policy as in
effect at the time unless the Issuer shall direct by an Issuer Order that they
be destroyed or returned to it; provided, that such Issuer Order is timely and
the Notes have not been previously disposed of by the Indenture Trustee.
SECTION 2.09 Reserved.
--------
SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance, shall be
----------------
issued in the form of typewritten Notes representing the Book-Entry Notes, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Issuer. The Book-Entry Notes shall be registered initially on
the Note Register in the name of Cede & Co., the nominee of the initial Clearing
Agency, and no Note Owner thereof shall receive a definitive Note representing
such Note Owner's interest in such Note, except as provided in Section 2.12.
Unless and until definitive, fully registered Notes (the "Definitive Notes")
have been issued to such Note Owners pursuant to Section 2.12:
(i) the provisions of this Section shall be in full force and
effect;
(ii) the Note Registrar and the Indenture Trustee shall be entitled
to deal with the Clearing Agency for all purposes of this
Indenture (including the payment of principal of and interest
on the Notes and the giving of instructions or directions
hereunder) as the sole holder of the Notes, and shall have no
obligation to the Note Owners;
(iii) to the extent that the provisions of this Section conflict with
any other provisions of this Indenture, the provisions of this
Section shall control;
(iv) the rights of Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by
law and agreements between such Note Owners and the Clearing
Agency and/or the Clearing Agency Participants pursuant to the
Note Depository Agreement. Unless and until Definitive Notes
are issued pursuant to Section 2.12, the initial Clearing
Agency shall make book-entry transfers among the Clearing
Agency
-8-
Participants and receive and transmit payments of principal of
and interest on the Notes to such Clearing Agency Participants;
and
(v) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Holders of Notes
evidencing a specified percentage of the Outstanding Amount of
the Notes, the Clearing Agency shall be deemed to represent
such percentage only to the extent that it has received
instructions to such effect from Note Owners and/or Clearing
Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in the Notes and
has delivered such instructions to the Indenture Trustee.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other
--------------------------
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to such Note Owners pursuant to
Section 2.12, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Clearing Agency, and shall have no obligation to such Note Owners.
SECTION 2.12 Definitive Notes. If (i) the Depositor advises the Indenture
----------------
Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities with respect to the Book-Entry Notes and
the Depositor is unable to locate a qualified successor within 90 days of the
giving of such advice, (ii) the Depositor at its option advises the Indenture
Trustee in writing that it elects to terminate the book-entry system through the
Clearing Agency or (iii) after the occurrence of an Event of Default or a
Servicer Default, Note Owners of the Book-Entry Notes representing beneficial
interests aggregating at least a majority of the Outstanding Amount of such
Notes advise the Clearing Agency in writing that the continuation of a book-
entry system through the Clearing Agency is no longer in the best interests of
such Note Owners, then the Clearing Agency shall notify all Note Owners and the
Indenture Trustee of the occurrence of any such event and of the availability of
Definitive Notes to Note Owners requesting the same. Upon surrender to the
Indenture Trustee of the typewritten Notes representing the Book-Entry Notes by
the Clearing Agency, accompanied by registration instructions, the Issuer shall
execute and the Indenture Trustee shall authenticate the Definitive Notes in
accordance with the instructions of the Clearing Agency. None of the Issuer,
the Note Registrar or the Indenture Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Notes, the Indenture Trustee shall recognize the Holders of the Definitive Notes
as Noteholders.
SECTION 2.13 Tax Treatment. The Issuer has entered into this Indenture,
-------------
and the Notes shall be issued, with the intention that, for all purposes
including federal, state and local income, single business and franchise tax
purposes, the Notes shall qualify as indebtedness of the Issuer secured by the
Trust Estate. The Issuer, by entering into this Indenture, and each Noteholder,
by its acceptance of a Note (and each Note Owner by its acceptance of an
interest in the applicable Book-Entry Note), agree to treat the Notes for all
purposes, including federal, state and local income, single business and
franchise tax purposes, as indebtedness of the Issuer.
-9-
ARTICLE III
Covenants
SECTION 3.01 Payment of Principal and Interest. The Issuer shall duly and
---------------------------------
punctually pay the principal of and interest, if any, on the Notes in accordance
with the terms of the Notes and this Indenture. Without limiting the foregoing,
subject to Section 8.02(c), the Issuer shall cause to be distributed all amounts
on deposit in the Note Distribution Account on a Monthly Payment Date deposited
therein pursuant to the Transfer and Servicing Agreement (i) for the benefit of
the Class A-1 Notes, to the Class A-1 Noteholders, (ii) for the benefit of the
Class A-2 Notes, to the Class A-2 Noteholders, (iii) for the benefit of the
Class A-3 Notes, to the Class A-3 Noteholders, (iv) for the benefit of the Class
A-4 Notes, to the Class A-4 Noteholders, (v) for the benefit of the Class A-5
Notes, to the Class A-5 Noteholders, (vi) for the benefit of the Class B Notes,
to the Class B Noteholders and (vii) for the benefit of the Class C Notes, to
the Class C Noteholders. Amounts properly withheld under the Code by any Person
from a payment to any Noteholder of interest and/or principal shall be
considered as having been paid by the Issuer to such Noteholder for all purposes
of this Indenture.
SECTION 3.02 Maintenance of Office or Agency. The Issuer shall maintain in
-------------------------------
the Borough of Manhattan, The City of New York, an office or agency where Notes
may be surrendered for registration of transfer or exchange, and where notices
and demands to or upon the Issuer in respect of the Notes and this Indenture may
be served. The Issuer hereby initially appoints the Indenture Trustee to serve
as its agent for the foregoing purposes. The Issuer shall give prompt written
notice to the Indenture Trustee of the location, and of any change in the
location, of any such office or agency. If at any time the Issuer shall fail to
maintain any such office or agency or shall fail to furnish the Indenture
Trustee with the address thereof, such surrenders, notices and demands may be
made or served at the Corporate Trust Office, and the Issuer hereby appoints the
Indenture Trustee as its agent to receive all such surrenders, notices and
demands.
SECTION 3.03 Money for Payments To Be Held in Trust. All payments of
--------------------------------------
amounts due and payable with respect to any Notes that are to be made from
amounts withdrawn from the Collection Account and the Note Distribution Account
pursuant to Section 8.02 shall be made on behalf of the Issuer by the Indenture
Trustee or by another Paying Agent, and no amounts so withdrawn from the
Collection Account and the Note Distribution Account for payments of Notes shall
be paid over to the Issuer except as provided in this Section.
On each Monthly Payment Date and Redemption Date, the Issuer shall deposit
or cause to be deposited in the Note Distribution Account an aggregate sum
sufficient to pay the amounts then becoming due under the Notes, such sum to be
held in trust for the benefit of the Persons entitled thereto, and (unless the
Paying Agent is the Indenture Trustee) shall promptly notify the Indenture
Trustee of its action or failure so to act.
The Issuer shall cause each Paying Agent other than the Indenture Trustee
to execute and deliver to the Indenture Trustee an instrument in which such
Paying Agent shall agree with the
-10-
Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, it hereby
so agrees), subject to the provisions of this Section, that such Paying Agent
shall:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and pay such sums
to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the Issuer
(or any other obligor upon the Notes) of which it has actual
knowledge in the making of any payment required to be made with
respect to the Notes;
(iii) at any time during the continuance of any such default, upon
the written request of the Indenture Trustee, forthwith pay to
the Indenture Trustee all sums so held in trust by such Paying
Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment
of Notes if at any time it ceases to meet the standards
required hereby to be met by a Paying Agent at the time of its
appointment; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect
to any applicable reporting requirements in connection
therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Order direct
any Paying Agent to pay to the Indenture Trustee all sums held in trust by such
Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts
as those upon which the sums were held by such Paying Agent; and upon such
payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money held
by the Indenture Trustee or any Paying Agent in trust for the payment of any
amount due with respect to any Note and remaining unclaimed for two years after
such amount has become due and payable shall be discharged from such trust and
be paid to the Issuer on Issuer Request; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that the Indenture
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense and direction of the Issuer cause to be published once, in
a newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
-11-
balance of such money then remaining shall be repaid to the Issuer. The
Indenture Trustee shall also adopt and employ, at the expense and direction of
the Issuer, any other reasonable means of notification of such repayment
(including, but not limited to, mailing notice of such repayment to Holders
whose Notes have been called but have not been surrendered for redemption or
whose right to or interest in moneys due and payable but not claimed is
determinable from the records of the Indenture Trustee or of any Paying Agent,
at the last address of record for each such Holder).
SECTION 3.04 Existence. The Issuer shall keep in full effect its
---------
existence, rights and franchises as a trust under the laws of the State of New
York (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case the Issuer shall keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) 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 Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
SECTION 3.05 Protection of Trust Estate. The Issuer shall from time to
--------------------------
time execute and deliver all such supplements and amendments hereto and all such
financing statements, continuation statements, instruments of further assurance
and other instruments, and shall take such other action necessary or advisable
to:
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more
effectively the purposes hereof;
(ii) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Trust Estate and the rights of
the Indenture Trustee and the Noteholders in such Trust Estate
against the claims of all persons and parties.
The Issuer hereby designates the Indenture Trustee its agent and attorney-in-
fact to execute any financing statement, continuation statement or other
instrument prepared by the Issuer required to be executed pursuant to this
Section 3.05.
SECTION 3.06 Opinions as to Trust Estate. (a) On the Closing Date, the
---------------------------
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording and filing of this Indenture, any indentures
supplemental hereto, and any other requisite documents, and with respect to the
execution and filing of any financing statements and continuation statements, as
are necessary to perfect and make effective the lien and security interest of
this Indenture and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to make such lien and
security interest effective.
-12-
(b) On or before March 15, in each calendar year, beginning in 2000, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording, filing, re-recording and refiling of this Indenture,
any indentures supplemental hereto and any other requisite documents and with
respect to the execution and filing of any financing statements and continuation
statements as is necessary to maintain the lien and security interest created by
this Indenture and reciting the details of such action, or stating that in the
opinion of such counsel no such action is necessary to maintain such lien and
security interest. Such Opinion of Counsel shall also describe the recording,
filing, re-recording and refiling of this Indenture, any indentures supplemental
hereto and any other requisite documents and the execution and filing of any
financing statements and continuation statements that shall, in the opinion of
such counsel, be required to maintain the lien and security interest of this
Indenture until March 15 in the following calendar year.
SECTION 3.07 Performance of Obligations; Servicing of Receivables.
----------------------------------------------------
(a) The Issuer shall not take any action and shall use its best efforts not
to permit any action to be taken by others that would release any Person from
any of such Person's material covenants or obligations under any instrument or
agreement included in the Trust Estate or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture, the Transfer and Servicing Agreement or
such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in performing
its duties under this Indenture, and any performance of such duties by a Person
identified to the Indenture Trustee in an Officer's Certificate of the Issuer
shall be deemed to be action taken by the Issuer. Initially, the Issuer has
contracted with the Servicer to assist the Issuer in performing its duties under
this Indenture.
(c) The Issuer shall punctually perform and observe all of its obligations
and agreements contained in this Indenture, the other Basic Documents and in the
instruments and agreements included in the Trust Estate, including but not
limited to filing or causing to be filed all UCC financing statements and
continuation statements required to be filed by the terms of this Indenture and
the Transfer and Servicing Agreement in accordance with and within the time
periods provided for herein and therein.
(d) If the Issuer shall have knowledge of the occurrence of a Servicer
Default under the Transfer and Servicing Agreement, the Issuer shall promptly
notify the Indenture Trustee and the Rating Agencies thereof, and shall specify
in such notice the action, if any, the Issuer is taking with respect to such
default. If a Servicer Default shall arise from the failure of the Servicer to
perform any of its duties or obligations under the Transfer and Servicing
Agreement with respect to the Receivables, the Issuer shall take all reasonable
steps available to it to remedy such failure.
(e) As promptly as possible after notice of termination of the Servicer's
rights and powers has been given to the Servicer pursuant to Section 8.01 of the
Transfer and Servicing Agreement,
-13-
the Indenture Trustee shall appoint a successor servicer (the "Successor
Servicer"), and such Successor Servicer shall accept its appointment by a
written assumption in a form acceptable to the Indenture Trustee. Any Successor
Servicer other than the Indenture Trustee shall (i) be an established financial
institution having a net worth of not less than $100,000,000 and whose regular
business includes the servicing of Contracts and (ii) enter into a servicing
agreement with the Issuer having substantially the same provisions as the
provisions of the Transfer and Servicing Agreement applicable to the Servicer
which is being replaced by such Successor Servicer. If the Indenture Trustee
shall succeed to the Servicer's duties as servicer of the Receivables as
provided herein and in the Transfer and Servicing Agreement, it shall do so in
its individual capacity and not in its capacity as Indenture Trustee and,
accordingly, the provisions of Article VI hereof shall be inapplicable to the
Indenture Trustee in its duties as the successor to the Servicer and in
connection with the Indenture Trustee's servicing of the Receivables. In case
the Indenture Trustee shall become successor to the Servicer under the Transfer
and Servicing Agreement, the Indenture Trustee shall be entitled to receive the
Servicing Fee in accordance with the Basic Documents (so long as it is acting as
Servicer) and shall also be entitled to appoint as Servicer any one of its
Affiliates, provided that it shall be fully liable for the actions and omissions
of such Affiliate in such capacity as Successor Servicer.
(f) (Reserved.)
--------
(g) Without derogating from the absolute nature of the assignment granted
to the Indenture Trustee under this Indenture or the rights of the Indenture
Trustee hereunder, the Issuer agrees (i) that it shall not, without the prior
written consent of the Indenture Trustee or the Majority Noteholders, amend,
modify, waive, supplement, terminate or surrender, or agree to any amendment,
modification, supplement, termination, waiver or surrender of, the terms of any
Collateral (except to the extent otherwise provided in the Transfer and
Servicing Agreement) or the Basic Documents, or waive timely performance or
observance by any Person under the Basic Documents; and (ii) that any such
amendment, modification, waiver, supplement, termination or surrender shall not
(A) increase or reduce in any manner the amount of, or accelerate or delay the
timing of, distributions that are required to be made for the benefit of the
Noteholders or (B) reduce the aforesaid percentage of the Notes that is required
to consent to any such amendment, without the consent of the Holders of all the
Outstanding Notes. If any such amendment, modification, waiver, supplement,
termination or surrender shall be so consented to by the Indenture Trustee or
such Holders, the Issuer agrees, promptly following a request by the Indenture
Trustee to do so, to execute and deliver, in its own name and at its own
expense, such agreements, instruments, consents and other documents as the
Indenture Trustee may deem necessary or appropriate in the circumstances.
SECTION 3.08 Negative Covenants. So long as any Notes are Outstanding,
------------------
the Issuer shall not:
(i) except as expressly permitted by this Indenture or any other
Basic Document sell, transfer, exchange or otherwise dispose of
any of the properties or assets of the Issuer, including those
included in the Trust Estate, unless directed to do so by the
Indenture Trustee, or dissolve or liquidate in whole or in part;
-14-
(ii) claim any credit on, or make any deduction from the principal
or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code or
applicable state law) or assert any claim against any present
or former Noteholder by reason of the payment of the taxes
levied or assessed upon the Issuer or any part of the Trust
Estate; or
(iii) (A) permit the validity or effectiveness of this Indenture to
be impaired, or permit the lien of this Indenture to be
amended, hypothecated, subordinated, terminated or discharged,
or permit any Person to be released from any covenants or
obligations with respect to the Notes under this Indenture
except as may be expressly permitted hereby, (B) permit any
lien, charge, excise, claim, security interest, mortgage or
other encumbrance (other than the lien of this Indenture) to be
created on or extend to or otherwise arise upon or burden the
Trust Estate or any part thereof or any interest therein or the
proceeds thereof (other than tax liens, mechanics' liens and
other liens that arise by operation of law, in each case on any
of the Financed Boats and arising solely as a result of an
action or omission of the related Obligor) or (C) permit the
lien of this Indenture not to constitute a valid first priority
(other than with respect to any such tax, mechanics' or other
lien) security interest in the Trust Estate.
SECTION 3.09 Annual Statement as to Compliance. The Issuer shall deliver
---------------------------------
to the Indenture Trustee, on or before March 15 of each year beginning in 2000,
an Officer's Certificate stating, as to the Authorized Officer signing such
Officer's Certificate, that:
(i) a review of the activities of the Issuer during such year and
of its performance under this Indenture has been made under
such Authorized Officer's supervision; and
(iii) to the best of such Authorized Officer's knowledge, based on
such review, the Issuer has complied with all conditions and
covenants under this Indenture throughout such year or, if
there has been a default in its compliance with any such
condition or covenant, specifying each such default known to
such Authorized Officer and the nature and status thereof.
SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms.
---------------------------------------------------
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) formed by or surviving
such consolidation or merger shall be a Person organized and
existing under the laws of the United States of America or any
State or the District of Columbia and shall expressly assume,
by an indenture supplemental hereto, executed and delivered to
the Indenture Trustee, in form satisfactory to the Indenture
Trustee, the due and punctual payment of the principal of and
interest on all
-15-
Notes and the performance or observance of every agreement and
covenant of this Indenture on the part of the Issuer to be
performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee) to the
effect that such transaction shall not have any material
adverse tax consequence to the Issuer, any Noteholder or the
Residual Interestholder;
(v) any action that is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating
that such consolidation or merger and such supplemental
indenture comply with this Article III and that all conditions
precedent herein provided for relating to such transaction have
been complied with (including any filing required by the
Exchange Act).
(b) Except as otherwise expressly contemplated by the Transfer and
Servicing Agreement, the Issuer shall not convey or transfer any of its
properties or assets, including those included in the Trust Estate, to any
Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer
of which is hereby restricted (A) shall be a United States
citizen or a Person organized and existing under the laws of
the United States of America or any State, (B) expressly
assumes, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee, the due and punctual payment of the
principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture on
the part of the Issuer to be performed or observed, all as
provided herein, (C) expressly agrees by means of such
supplemental indenture that all right, title and interest so
conveyed or transferred shall be subject and subordinate to the
rights of Holders of the Notes, (D) unless otherwise provided
in such supplemental indenture, expressly agrees to indemnify,
defend and hold harmless the Issuer against and from any loss,
liability or expense arising under or related to this Indenture
and the Notes and (E) expressly agrees by means of such
supplemental indenture that such Person (or if a group of
-16-
Persons, then one specified Person) shall make all filings with
the Commission (and any other appropriate Person) required by
the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee) to the
effect that such transaction shall not have any material
adverse tax consequence to the Issuer, any Noteholder or the
Residual Interestholder;
(v) any action that is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating
that such conveyance or transfer and such supplemental
indenture comply with this Article III and that all conditions
precedent herein provided for relating to such transaction have
been complied with (including any filing required by the
Exchange Act).
SECTION 3.11 Successor or Transferee. (a) Upon any consolidation or
-----------------------
merger of the Issuer in accordance with Section 3.10(a), the Person formed by or
surviving such consolidation or merger (if other than the Issuer) shall succeed
to, and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if such Person had been
named as the Issuer herein.
(b) Upon a conveyance or transfer of the assets and properties of the
Issuer including the Trust Estate pursuant to Section 3.10(b), (i) the Person
acquiring such assets and properties shall succeed to, and be substituted for,
and may exercise every right and power of, the Issuer under this Indenture with
the same effect as if such Person had been named as the Issuer herein and (ii)
Distribution Financial Services Marine Trust 1999-2 shall be released from every
covenant and agreement of this Indenture to be observed or performed on the part
of the Issuer with respect to the Notes immediately upon the delivery of written
notice to the Indenture Trustee stating that Distribution Financial Services
Marine Trust 1999-2 is to be so released.
SECTION 3.12 No Other Business. The Issuer shall not engage in any
-----------------
business other than financing, purchasing, owning, selling and managing the
Receivables in the manner contemplated by this Indenture and the other Basic
Documents and activities incidental thereto.
-17-
SECTION 3.13 No Borrowing. The Issuer shall not issue, incur, assume,
------------
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness other than as contemplated by this Indenture and the other Basic
Documents.
SECTION 3.14 Servicer's Obligations. The Issuer shall cause the Servicer
----------------------
to comply with Sections 4.09, 4.10, 4.11 and Article IX of the Transfer and
Servicing Agreement.
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities. Except as
-------------------------------------------------
contemplated by the Transfer and Servicing Agreement or this Indenture, the
Issuer shall not make any loan or advance of credit to, or guarantee (directly
or indirectly or by an instrument having the effect of assuring another's
payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or own,
purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.16 Capital Expenditures. The Issuer shall not make any
--------------------
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
SECTION 3.17 (Reserved).
--------
SECTION 3.18 Restricted Payments. The Issuer shall not, directly or
-------------------
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or security
in or of the Issuer or to the Servicer, (ii) redeem, purchase, retire or
otherwise acquire for value any such ownership or equity interest or security or
(iii) set aside or otherwise segregate any amounts for any such purpose;
provided, however, that the Issuer may make, or cause to be made, distributions
as contemplated by, and to the extent funds are available for such purpose
under, this Indenture, the Transfer and Servicing Agreement or the Trust
Agreement. The Issuer shall not, directly or indirectly, make payments to or
distributions from the Collection Account except in accordance with this
Indenture and the other Basic Documents.
SECTION 3.19 Notice of Events of Default. In addition to its obligations
---------------------------
under the last paragraph of Section 5.01, the Issuer shall give the Indenture
Trustee and the Rating Agencies written notice of each Event of Default
hereunder and each default on the part of the Servicer, DFS, the Transferor or
the Depositor of its obligations under the Transfer and Servicing Agreement, in
each case promptly after becoming aware of such Event of Default or default.
SECTION 3.20 Further Instruments and Acts. Upon request of the Indenture
----------------------------
Trustee, the Issuer shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
-18-
ARTICLE IV
Satisfaction and Discharge
SECTION 4.01 Satisfaction and Discharge of Indenture. This Indenture
---------------------------------------
shall cease to be of further effect with respect to the Notes except as to (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive
payments of principal thereof and interest thereon, (iv) Sections 3.03,
3.04, 3.05, 3.08, 3.10, 3.12 and 3.13, (v) the rights, obligations and
immunities of the Indenture Trustee hereunder (including the rights of the
Indenture Trustee under Section 6.07 and the obligations of the Indenture
Trustee under Section 4.02) and (vi) the rights of Noteholders as beneficiaries
hereof with respect to the property so deposited with the Indenture Trustee
payable to all or any of them, and the Indenture Trustee, on demand of and at
the expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Notes, when
(A) either
(1) all Notes theretofore authenticated and delivered (other than (i)
Notes that have been destroyed, lost or stolen and that have been
replaced or paid as provided in Section 2.05 and (ii) Notes for whose
payment money has theretofore been deposited in trust or segregated
and held in trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 3.03) have been
delivered to the Indenture Trustee for cancellation; or
(2) all such Notes not theretofore delivered to the Indenture Trustee
for cancellation
a. have become due and payable,
b. shall become due and payable at the applicable Stated Maturity
Date within one year, or
c. are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the giving of
notice of redemption by the Indenture Trustee in the name, and at
the expense, of the Issuer,
and the Issuer, in the case of a., b., or c., above, has irrevocably deposited
or caused to be irrevocably deposited with the Indenture Trustee cash or direct
obligations of or obligations guaranteed by the United States of America (which
shall mature prior to the date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge the entire indebtedness
on such Notes not theretofore delivered to the Indenture Trustee for
cancellation when due to the applicable Stated Maturity Date or Redemption Date
(if Notes shall have been called for redemption pursuant to Section 10.01),
as the case may be;
-19-
(B) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(C) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or the
Indenture Trustee) an Independent Certificate from a firm of certified
public accountants, each meeting the applicable requirements of Section
11.01(a) and, subject to Section 11.02, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
SECTION 4.02 Application of Trust Money. All moneys deposited with the
--------------------------
Indenture Trustee pursuant to Section 4.01 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Holders of the particular Notes for the
payment or redemption of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal and
interest; but such moneys need not be segregated from other funds except to the
extent required herein or in the Transfer and Servicing Agreement or required by
law.
SECTION 4.03 Repayment of Moneys Held by Paying Agent. In connection with
----------------------------------------
the satisfaction and discharge of this Indenture with respect to the Notes, all
moneys then held by any Paying Agent other than the Indenture Trustee under the
provisions of this Indenture with respect to such Notes shall, upon demand of
the Issuer, be paid to the Indenture Trustee to be held and applied according to
Section 3.03 and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
ARTICLE V
Remedies
SECTION 5.01 Events of Default. "Event of Default", wherever used herein,
-----------------
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) default in the payment of any interest on any Note when the
same becomes due and payable, and such default shall continue
for a period of five days; or
(ii) default in the payment of any portion of the unpaid principal
balance of any Class of Notes on the Stated Maturity Date of
such Class of Notes; or
(iii) default in the observance or performance of any covenant or
agreement of the Issuer made in this Indenture (other than a
covenant or agreement, a default in the observance or
performance of which is elsewhere in this Section specifically
-20-
dealt with), or any representation or warranty of the Issuer made
in this Indenture or in any certificate or other writing
delivered pursuant hereto or in connection herewith proving to
have been incorrect in any material respect as of the time when
the same shall have been made, and such default shall continue or
not be cured, or the circumstance or condition in respect of
which such representation or warranty was incorrect shall not
have been eliminated or otherwise cured, for a period of 30 days
after there shall have been given, by registered or certified
mail, to the Issuer by the Indenture Trustee (or to the Issuer
and the Indenture Trustee by the Holders of Notes representing at
least 25% of the Outstanding Amount of the Notes) a written
notice specifying such default or incorrect representation or
warranty and requiring it to be remedied and stating that such
notice is a notice of Default hereunder; or
(iv) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any
substantial part of the Trust Estate 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 of the Issuer or for any substantial part of the Trust
Estate, or ordering the winding-up or liquidation of the Issuer's
affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(v) the commencement by the Issuer 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 the
Issuer to the entry of an order for relief in an involuntary case
under any such law, or the consent by the Issuer to the
appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of
the Issuer or for any substantial part of the Trust Estate, or
the making by the Issuer of any general assignment for the
benefit of creditors, or the failure by the Issuer generally to
pay its debts as such debts become due, or the taking of any
action by the Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five days after
the occurrence thereof, written notice in the form of an Officer's Certificate
of any event which with the giving of notice and the lapse of time would become
an Event of Default under clause (iii), its status and what action the Issuer is
taking or proposes to take with respect thereto.
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment. If an
--------------------------------------------------
Event of Default should occur and be continuing, then and in every such case the
Indenture Trustee or the Majority Noteholders may declare all of the Notes to be
immediately due and payable, by a notice in writing to the Issuer (and to the
Indenture Trustee if given by Noteholders), and upon any such declaration the
unpaid principal amount of the Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable.
-21-
At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as hereinafter in this Article V provided, the
Majority Noteholders by written notice to the Issuer and the Indenture Trustee,
may rescind and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture Trustee a sum
sufficient to pay:
(A) all payments of principal of and interest on all Notes and
all other amounts that would then be due hereunder or upon
such Notes if the Event of Default giving rise to such
acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee and its agents and
counsel; and
(ii) all Events of Default, other than the nonpayment of the principal
of the Notes that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Indenture Trustee.
-----------------
(a) The Issuer covenants that if (i) default is made in the payment of any
interest on any Note when the same becomes due and payable, and such default
continues for a period of five days, or (ii) default is made in the payment of
the principal of or any installment of the principal of any Note when the same
becomes due and payable, the Issuer shall, upon demand of the Indenture Trustee,
pay to it, for the benefit of the Holders of the Notes, the whole amount then
due and payable on such Notes for principal and interest, with interest on the
overdue principal and, to the extent payment at such rate of interest shall be
legally enforceable, on overdue installments of interest at the rate borne by
the Notes and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Indenture Trustee and
its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the moneys adjudged or decreed to be
payable.
(c) If an Event of Default occurs and is continuing, the Indenture Trustee
may, as more particularly provided in Section 5.04, in its discretion, proceed
to protect and enforce its rights and the rights of the Noteholders, by such
appropriate Proceedings as the Indenture Trustee shall deem
-22-
most effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy or
legal or equitable right vested in the Indenture Trustee by this Indenture or by
law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Trust Estate, Proceedings under Title 11 of the United States Code or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or in case a receiver or trustee in bankruptcy or reorganization, or
liquidator, sequestrator or similar official, shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes or to the creditors or property of the Issuer or
such other obligor, the Indenture Trustee, irrespective of whether the principal
of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes
and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the
Indenture Trustee and each predecessor Indenture Trustee, and
their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor
Indenture Trustee, except as a result of negligence or bad
faith) and of the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of Notes in any election of a trustee, a
standby trustee or Person performing similar functions in any
such Proceedings;
(iii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders and of
the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of
the Indenture Trustee or the Holders of Notes allowed in any
Proceedings relative to the Issuer, its creditors and its
property;
and any trustee, receiver, liquidator, sequestrator or similar official in any
such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Noteholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys
-23-
and counsel, and all other expenses and liabilities incurred, and all advances
made, by the Indenture Trustee and each predecessor Indenture Trustee except as
a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except as contemplated by clause (d)(ii)
above.
(f) All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or Proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
liabilities, disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents and attorneys, shall
be for the ratable benefit of the Holders of the Notes.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Holders of the Notes, and it shall not be necessary to
make any Noteholder a party to any such Proceedings.
SECTION 5.04 Remedies; Priorities. (a) If an Event of Default shall
--------------------
have occurred and be continuing, the Indenture Trustee may do one or more of the
following (subject to Section 5.05):
(i) institute Proceedings in its own name and as trustee of an express
trust for the collection of all amounts then payable on the Notes or
under this Indenture with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained and collect from the Issuer
and any other obligor upon such Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the complete or partial
foreclosure of this Indenture with respect to the Trust Estate;
(iii) exercise any remedies of a secured party under the UCC and take any
other appropriate action to protect and enforce the rights and
remedies of the Indenture Trustee and the Holders of the Notes; and
(iv) sell the Trust Estate or any portion thereof or rights or interest
therein, at one or more public or private sales called and conducted
in any manner permitted by law;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Trust Estate following an Event of Default, other than an Event of
Default described in Section 5.01(i) or (ii), unless (A) the Holders of 100% of
the Outstanding Amount of the Notes consent thereto, (B) the
-24-
proceeds of such sale or liquidation distributable to the Noteholders are
sufficient to discharge in full all amounts then due and unpaid upon such Notes
for principal and interest at the time of such sale or liquidation or (C) the
Indenture Trustee determines that the Trust Estate shall not continue to provide
sufficient funds for the payment of principal of and interest on the Notes as
they would have become due if the Notes had not been declared due and payable,
and the Indenture Trustee obtains the consent of Holders of Notes representing
at least 66 2/3% of the Outstanding Amount of the Notes. In determining such
sufficiency or insufficiency with respect to clause (B) and (C), the Indenture
Trustee may, but need not, obtain at the Issuer's expense and rely upon an
opinion of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out the money or property in the following order of
priority on each Monthly Payment Date:
FIRST: to the Indenture Trustee for amounts due under Section 6.07;
SECOND: to the Servicer (if DFS is no longer the Servicer), for due and
unpaid Servicing Fees or any other amounts due to it by the Issuer pursuant to
the Transfer and Servicing Agreement;
THIRD: to the Class A Noteholders for amounts due and unpaid on the Class
A Notes for interest, on a pro rata basis without preference or priority of any
kind (including without preference or priority among the different Classes of
Class A Notes), according to the amounts due and payable on the Class A Notes
for interest;
FOURTH: to the Class B Noteholders for amounts due and unpaid on the Class
B Notes for interest, on a pro rata basis, without preference or priority of any
kind, according to the amounts due and payable on the Class B Notes for
interest;
FIFTH: to the Class C Noteholders for amounts due and unpaid on the Class C
Notes for interest, on a pro rata basis, without preference or priority of any
kind, according to the amounts due and payable on the Class C Notes for
interest.
SIXTH: to the Class A Noteholders for amounts due and unpaid on the Class
A Notes for principal, on a pro rata basis, without preference or priority of
any kind (including without preference or priority among the different Classes
of Class A Notes), until the Outstanding Amount of each Class of the Class A
Notes is reduced to zero;
SEVENTH: to the Class B Noteholders for amounts due and unpaid on the Class
B Notes for principal, on a pro rata basis, without preference or priority of
any kind, until the Outstanding Amount of the Class B Notes is reduced to zero;
EIGHTH: to the Class C Noteholders, for amounts due and unpaid on the Class
C Notes for principal, on a pro rata basis, without preference or priority of
any kind, until the Outstanding Amount of the Class C Notes is reduced to zero;
-25-
NINTH: if DFS is the Servicer, for due and unpaid Servicing Fees or any
other amounts due to it by the Issuer pursuant to the Transfer and Servicing
Agreement; and
TENTH: to the Owner Trustee for distribution to the Residual Interestholder
pursuant to the Trust Agreement.
The Indenture Trustee may fix a record date and payment date (which shall be a
Monthly Payment Date) for any payment to Noteholders pursuant to this Section.
At least 15 days before such record date, the Issuer shall mail to each
Noteholder and the Indenture Trustee a notice that states the record date, the
payment date and the amount to be paid.
SECTION 5.05 Optional Preservation of the Receivables. If the Notes have
----------------------------------------
been declared to be due and payable under Section 5.02 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, but need not, elect to maintain possession
of the Trust Estate. It is the desire of the parties hereto and the Noteholders
that there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and the Indenture Trustee shall take such desire into
account when determining whether or not to maintain possession of the Trust
Estate. In determining whether to maintain possession of the Trust Estate, the
Indenture Trustee may, but need not, obtain at the Issuer's expense and rely
upon an opinion of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose.
SECTION 5.06 Limitation of Suits. No Holder of any Note shall have any
-------------------
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(i) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(ii) the Holders of Notes representing not less than 25% of the
Outstanding Amount of the Notes have made written request to
the Indenture Trustee to institute such Proceeding in respect
of such Event of Default in its own name as Indenture Trustee
hereunder;
(iii) such Holder or Holders have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
such Proceedings; and
(v) no direction inconsistent with such written request has been
given to the Indenture Trustee during such 60-day period by the
Majority Noteholders.
-26-
It is understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except in the
manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of Notes,
each representing less than a majority of the Outstanding Amount of the Notes,
the Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.07 Unconditional Rights of Noteholders To Receive Principal and
------------------------------------------------------------
Interest. Notwithstanding any other provisions in this Indenture, the Holder of
--------
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Note on or after the
respective due dates thereof expressed in such Note or in this Indenture (or, in
the case of redemption, on or after the Redemption Date) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
SECTION 5.08 Restoration of Rights and Remedies. If the Indenture
----------------------------------
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had been
instituted.
SECTION 5.09 Rights and Remedies Cumulative. No right or remedy herein
------------------------------
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of the
------------------------------
Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
SECTION 5.11 Control by Noteholders. Subject to Section 5.16(b), the
----------------------
Majority Noteholders shall have the right to direct the time, method and place
of conducting any Proceeding for any
-27-
remedy available to the Indenture Trustee with respect to the Notes or
exercising any trust or power conferred on the Indenture Trustee; provided that:
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(ii) subject to the express terms of Section 5.04, any direction to
the Indenture Trustee to sell or liquidate the Trust Estate
shall be by Holders of Notes representing not less than 100% of
the Outstanding Amount of the Notes;
(iii) if the conditions set forth in Section 5.05 have been satisfied
and the Indenture Trustee elects to retain the Trust Estate
pursuant to such Section, then any direction to the Indenture
Trustee by Holders of Notes representing less than 100% of the
Outstanding Amount of the Notes to sell or liquidate the Trust
Estate shall be of no force and effect; and
(iv) the Indenture Trustee may take any other action deemed proper
by the Indenture Trustee that is not inconsistent with such
direction.
Notwithstanding the rights of Noteholders set forth in this Section, subject to
Section 6.01, the Indenture Trustee need not take any action that it determines
might involve it in personal liability or might materially adversely affect the
rights of any Noteholders not consenting to such action.
SECTION 5.12 Waiver of Past Defaults. Prior to the declaration of the
-----------------------
acceleration of the maturity of the Notes as provided in Section 5.02, the
Majority Noteholders may waive any Default or Event of Default then existing and
its consequences except a Default or Event of Default (a) in payment of
principal of or interest on any of the Notes, which shall be waived only with
the consent of the Holder of each Note, or (b) in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of the
Holder of each Note. In the case of any such waiver, the Issuer, the Indenture
Trustee and the Holders of the Notes shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
Upon any such waiver, such Default or Event of Default shall cease to exist
and be deemed to have been cured and not to have occurred, and any Event of
Default arising from such Default shall be deemed to have been cured and not to
have occurred, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture agree,
---------------------
and each Holder of a Note by such Holder's acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith
-28-
of the claims or defenses made by such party litigant; but the provisions of
this Section shall not apply to (a) any suit instituted by the Indenture
Trustee, (b) any suit instituted by any Noteholder, or group of Noteholders, in
each case holding in the aggregate Notes representing more than 10% of the
Outstanding Amount of the Notes or (c) any suit instituted by any Noteholder for
the enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture (or,
in the case of redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer covenants
--------------------------------
(to the extent that it may lawfully do so) that it shall not at any time insist
upon, or plead or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek and
---------------
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or
remedies of the Indenture Trustee or the Noteholders shall be impaired by the
recovery of any judgment by the Indenture Trustee against the Issuer or by the
levy of any execution under such judgment upon any portion of the Trust Estate
or upon any of the assets of the Issuer. Any money or property collected by the
Indenture Trustee shall be applied in accordance with Section 5.04(b).
SECTION 5.16 Performance and Enforcement of Certain Obligations. (a) If
--------------------------------------------------
an Event of Default has occurred and is continuing, promptly following a request
from the Indenture Trustee to do so, the Issuer shall take all such lawful
action as the Indenture Trustee may request to compel or secure the performance
and observance by any party to the Transfer and Servicing Agreement, of each of
such party's obligations to the Issuer under or in connection with the Transfer
and Servicing Agreement, and to exercise any and all rights, remedies, powers
and privileges lawfully available to the Issuer under or in connection with the
Transfer and Servicing Agreement to the extent and in the manner directed by the
Indenture Trustee, including the transmission of notices of default on the part
of any party to the Transfer and Servicing Agreement and the institution of
legal or administrative actions or proceedings to compel or secure performance
by any party to the Transfer and Servicing Agreement of such party's obligations
under the Transfer and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the Indenture
Trustee may, and at the direction (which direction shall be in writing or by
telephone (confirmed in writing promptly thereafter)) of the Holders of Notes
representing at least 66 2/3% of the Outstanding Amount of the Notes shall,
subject to the proviso and last sentence of Section 5.11, exercise all rights,
remedies, powers, privileges and claims of the Issuer against any party to any
of the Basic Documents under or in connection with any of the Basic Documents,
including the right or power to take any action to compel or secure performance
or observance by any party to any of the Basic Documents of such party's
obligations to the Issuer thereunder and to give any consent, request, notice,
direction,
-29-
approval, extension or waiver under any of the Basic Documents, and any right of
the Issuer to take such action shall be suspended.
ARTICLE VI
The Indenture Trustee
SECTION 6.01 Duties of Indenture Trustee.
---------------------------
(a) If an Event of Default has occurred and is continuing, the Indenture
Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and
the Transfer and Servicing Agreement and no implied covenants or
obligations shall be read into this Indenture or the Transfer
and Servicing Agreement against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Indenture Trustee and conforming to
the requirements of this Indenture or the Transfer and Servicing
Agreement; however, the Indenture Trustee shall examine the
certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it
is proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 5.11 or
Section 5.16(b).
-30-
(d) Every provision of this Indenture and the Transfer and Servicing
Agreement that in any way relates to the Indenture Trustee is subject to
paragraphs (a), (b), (c) and (g) of this Section.
(e) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(f) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture or the Transfer and Servicing Agreement.
(g) No provision of this Indenture or the Transfer and Servicing Agreement
shall require the Indenture Trustee to expend or risk its own funds or otherwise
incur financial liability in the performance of any of its duties hereunder or
thereunder or in the exercise of any of its rights or powers, if it shall have
reasonable grounds to believe that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(h) Every provision of this Indenture or the Transfer and Servicing
Agreement relating to the conduct or affecting the liability of or affording
protection to the Indenture Trustee shall be subject to the provisions of this
Section and to the provisions of the TIA.
SECTION 6.02 Rights of Indenture Trustee.
---------------------------
(a) The Indenture Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Indenture Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Indenture
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on an Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, that the Indenture Trustee's conduct does not
constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
-31-
(f) The Indenture Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Noteholders pursuant to this Indenture, unless such Noteholders
shall have offered to the Indenture Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
(g) The Indenture Trustee shall not be charged with knowledge of any
Default, Event of Default or Servicer Default unless (i) a Responsible Officer
of the Indenture Trustee assigned to its Corporate Trust Office shall have
actual knowledge thereof or (ii) written notice thereof shall have been given to
the Indenture Trustee by the Issuer, the Depositor, the Servicer or any
Noteholder.
SECTION 6.03 Individual Rights of Indenture Trustee. The Indenture
--------------------------------------
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer, the Depositor, the Servicer or
their respective Affiliates with the same rights it would have if it were not
Indenture Trustee. Any Paying Agent, Note Registrar, co-registrar or co-paying
agent may do the same with like rights. However, the Indenture Trustee must
comply with Sections 6.11 and 6.12.
SECTION 6.04 Indenture Trustee's Disclaimer. The Indenture Trustee shall
------------------------------
not be responsible for and makes no representation as to the validity or
adequacy of this Indenture, the Collateral or the Notes, it shall not be
accountable for the Issuer's use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Issuer in this Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Indenture Trustee's certificate of authentication. The Indenture
Trustee shall have no responsibility for reviewing the contents of the
Receivable Files or for maintaining custody of or protecting same, for
monitoring the servicing of the Receivables by the Servicer or for perfecting or
continuing the perfection of the Indenture Trustee's security interest in the
Collateral, including the filing, re-filing, recording or re-recording of any
notice, instrument or document in any public office at any time or times. 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 the Transfer and Servicing Agreement.
SECTION 6.05 Notice of Defaults. If a Default occurs and is continuing
------------------
and if it is known to a Responsible Officer of the Indenture Trustee, the
Indenture Trustee shall mail to each Noteholder notice of the Default within 90
days after it occurs. Except in the case of a Default in payment of principal of
or interest on any Note (including payments pursuant to the redemption
provisions of such Note), the Indenture Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Noteholders.
SECTION 6.06 Reports by Indenture Trustee to Holders. The Indenture
---------------------------------------
Trustee shall deliver to each Noteholder who was a Noteholder during the
applicable year, not later than the latest date permitted by law, such
information as may be required to enable such holder to prepare its federal and
state income tax returns, provided, that, such information shall consist only of
Form 1099s or any successor forms required to be given by Paying Agents to
Noteholders pursuant to the Code.
-32-
SECTION 6.07 Compensation and Indemnity. The Issuer shall pay to the
--------------------------
Indenture Trustee from time to time reasonable compensation for its services.
The Indenture Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall reimburse the
Indenture Trustee for all reasonable out-of-pocket expenses incurred or made by
it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Indenture Trustee's agents, counsel,
accountants and experts. The Issuer shall indemnify the Indenture Trustee
against any and all loss, liability or expense (including attorneys' fees)
incurred by it in connection with the administration of this trust and the
performance of its duties hereunder. The Indenture Trustee shall notify the
Issuer promptly of any claim for which it may seek indemnity. Failure by the
Indenture Trustee to so notify the Issuer shall not relieve the Issuer of its
obligations hereunder. The Issuer shall defend any such claim, and the Indenture
Trustee may have separate counsel and the Issuer shall pay the fees and expenses
of such counsel. The Issuer need not reimburse any expense or indemnify against
any loss, liability or expense incurred by the Indenture Trustee through the
Indenture Trustee's own willful misconduct, negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee pursuant to this
Section shall survive the discharge of this Indenture. Without prejudice to any
other rights available to the Indenture Trustee under applicable law, when the
Indenture Trustee incurs expenses after the occurrence of a Default specified in
Section 5.01(iv) or (v) with respect to the Issuer, the expenses are intended
to constitute expenses of administration under Title 11 of the United States
Code or any other applicable federal or state bankruptcy, insolvency or similar
law.
SECTION 6.08 Replacement of Indenture Trustee. No resignation or removal
--------------------------------
of the Indenture Trustee and no appointment of a successor Indenture Trustee
shall become effective until the acceptance of appointment by the successor
Indenture Trustee pursuant to this Section 6.08. The Indenture Trustee may
resign at any time by so notifying the Issuer. The Majority Noteholders may
remove the Indenture Trustee by so notifying the Indenture Trustee and may
appoint a successor Indenture Trustee. The Issuer shall remove the Indenture
Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
If the Indenture Trustee resigns or is removed by the Issuer or by the Majority
Noteholders (and the Majority Noteholders shall not have appointed a successor
Indenture Trustee and such successor Indenture Trustee shall not have accepted
its appointment as set forth below within 30 days after the Indenture Trustee
shall have been removed by such Majority Noteholders), or if a vacancy exists in
the office of Indenture Trustee for any reason (the Indenture Trustee in the
event of any such
-33-
resignation, removal or vacancy being referred to herein as the retiring
Indenture Trustee), the Issuer shall promptly appoint a successor Indenture
Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee shall have all the rights, powers and duties
of the Indenture Trustee under this Indenture. The successor Indenture Trustee
shall mail a notice of its succession to Noteholders. The retiring Indenture
Trustee shall promptly, upon payment of its charges, transfer all property held
by it as Indenture Trustee to the successor Indenture Trustee
If a successor Indenture Trustee does not take office within 60 days after
the retiring Indenture Trustee resigns or is removed, the retiring Indenture
Trustee, the Issuer or the Majority Noteholders may petition any court of
competent jurisdiction for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any Noteholder
may petition any court of competent jurisdiction for the removal of the
Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to this
Section, the Issuer's obligations under Section 6.07 shall continue for the
benefit of the retiring Indenture Trustee.
SECTION 6.09 Successor Indenture Trustee by Merger. If the Indenture
-------------------------------------
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee; provided, that
such corporation or banking association shall be otherwise qualified and
eligible under Section 6.11. The Indenture Trustee shall provide the Rating
Agencies prior written notice of any such transaction. Such notice shall be
deemed given if a description of such transaction is published in a newspaper of
general circulation in The City of New York.
In case at the time such successor or successors by merger, conversion or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
-34-
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
---------------------------------------------------------
Trustee.
-------
(a) Notwithstanding any other provisions of this Indenture, at any time,
for the purpose of meeting any legal requirement of any jurisdiction in which
any part of the Trust Estate may at the time be located, the Indenture Trustee
shall have the power and may execute and deliver all instruments to appoint one
or more Persons to act as a co-trustee or co-trustees, or separate trustee or
separate trustees, of all or any part of the Trust Estate, and to vest in such
Person or Persons, in such capacity and for the benefit of the Noteholders, such
title to the Trust Estate, or any part hereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Indenture Trustee may consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 6.11 and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 6.08 hereof.
(b) Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such
separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act
separately without the Indenture Trustee joining in such act),
except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed the
Indenture Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Estate
or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-
trustee, but solely at the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and co-
trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
-35-
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Indenture on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Indenture Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. The Indenture Trustee shall
-----------------------------
at all times satisfy the requirements of TIA Section 310(a). The Indenture
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition, and the time
deposits of the Indenture Trustee shall be rated at least A-1 by Standard &
Poor's and F1+ by Fitch and P-1 by Moody's. The Indenture Trustee shall comply
with TIA Section 310(b), subject to the penultimate paragraph thereof; provided,
however, that there shall be excluded from the operation of TIA Section
310(b)(1) any indenture or indentures under which other securities of the Issuer
are outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against Issuer. The
------------------------------------------------
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 6.13 Representations and Warranties. The Indenture Trustee hereby
------------------------------
represents and warrants to the Issuer, for the benefit of the Noteholders, that:
(a) The Indenture Trustee is a banking corporation duly organized and
validly existing in good standing under the laws of the State of New York. The
Indenture Trustee has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Indenture and each other Basic
Document to which it is a party.
(b) The Indenture Trustee has taken all action necessary to authorize the
execution and delivery by it of this Indenture and each of the other Basic
Documents to which it is a party, and this Indenture and each of the other Basic
Documents to which it is a party has been executed and delivered by one of its
officers who is duly authorized to execute and deliver this Indenture and each
of the other Basic Documents to which it is a party on its behalf.
(c) This Indenture and each of the other Basic Documents to which it is a
party constitutes a legal, valid and binding obligation of the Indenture
Trustee, enforceable against the Indenture Trustee in accordance with its
respective terms, subject, as to enforceability, to applicable insolvency,
reorganization, conservatorship, receivership, liquidation and other similar
laws affecting enforcement of the rights of creditors of banks generally and to
equitable limitations on the availability of specific remedies.
-36-
(d) Neither the execution or the delivery by the Indenture Trustee of this
Indenture and each of the other Basic Documents to which it is a party, nor the
consummation by it of the transactions contemplated hereby and thereby, nor
compliance by it with any of the terms or provisions hereof and thereof, shall
contravene any federal or state law, governmental rule or regulation governing
the banking or trust powers of the Indenture Trustee or any judgment or order
binding on it, or constitute any default under its charter documents or bylaws.
SECTION 6.14 Notice of Events. The Indenture Trustee shall give each of
----------------
the Rating Agencies notice of the resignation of the Indenture Trustee promptly
following such resignation.
ARTICLE VII
Noteholders' Lists and Reports
SECTION 7.01 Issuer To Furnish Indenture Trustee Names and Addresses of
----------------------------------------------------------
Noteholders. The Issuer shall furnish or cause to be furnished to the Indenture
-----------
Trustee (a) not more than five days after each Record Date, a list, in such form
as the Indenture Trustee may reasonably require, of the names and addresses of
the Holders of Notes as of such Record Date, and (b) at such other times as the
Indenture Trustee may request in writing, within 30 days after receipt by the
Issuer of any such request, a list of similar form and content as of a date not
more than 10 days prior to the time such list is furnished; provided, however,
that so long as the Indenture Trustee is the Note Registrar, no such list shall
be required to be furnished.
SECTION 7.02 Preservation of Information; Communications to Noteholders.
----------------------------------------------------------
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.01 and the names and addresses of Holders of Notes received by the
Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in such Section 7.01 upon receipt
of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA Section 312(c).
SECTION 7.03 Reports by Issuer. (a) The Issuer shall:
-----------------
(i) file with the Indenture Trustee, within 15 days after the Issuer
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
-37-
prescribe) that the Issuer may be required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in accordance
with rules and regulations prescribed from time by the
Commission such additional information, documents and reports
with respect to compliance by the Issuer with the conditions and
covenants of this Indenture as may be required from time to time
by such rules and regulations; and
(ii) supply to the Indenture Trustee (and the Indenture Trustee shall
transmit by mail to all Noteholders described in TIA Section
313(c)) such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to clauses (i) and
(ii) of this Section 7.03(a) as may be required by rules and
regulations prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on December 31 of each year.
SECTION 7.04 Reports by Indenture Trustee. If required by TIA Section
----------------------------
313(a), within 60 days after each July 15 beginning with July 15, 1999, the
Indenture Trustee shall mail to each Noteholder as required by TIA Section
313(c) a brief report dated as of such date that complies with TIA Section
313(a). The Indenture Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Noteholders shall be
filed by the Indenture Trustee with the Commission and each stock exchange, if
any, on which the Notes are listed. The Issuer shall notify the Indenture
Trustee if and when the Notes are listed on any stock exchange.
ARTICLE VII
Accounts, Disbursements and Releases
SECTION 8.01 Collection of Money. Except as otherwise expressly provided
-------------------
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default occurs
in the making of any payment or performance under any agreement or instrument
that is part of the Trust Estate, the Indenture Trustee may take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action shall
be without prejudice to any right to claim a Default or Event of Default under
this Indenture and any right to proceed thereafter as provided in Article V.
Notwithstanding the foregoing provisions of this Section 8.01, the Indenture
Trustee shall not be empowered to demand payment of or to enforce payment or
-38-
performance of any Receivable, except during the continuance of an Event of
Default, and, during the pendency of such an Event of Default, shall be
protected in refraining from making any such demand or instituting any
proceeding to enforce such payment or performance as long as the Servicer shall
be servicing the Receivables.
SECTION 8.02 Trust Accounts.
--------------
(a) On or prior to the Closing Date, the Issuer shall cause the Indenture
Trustee to establish and maintain the Trust Accounts as provided in Section 5.01
of the Transfer and Servicing Agreement.
(b) Collections with respect to the Receivables and other amounts with
respect to each Collection Period shall be deposited in the Collection Account
as provided in Sections 5.02 and 5.05 of the Transfer and Servicing Agreement.
On each Monthly Payment Date, all amounts required to be deposited in the Note
Distribution Account with respect to the preceding Collection Period pursuant to
Sections 5.06 and 5.07 of the Transfer and Servicing Agreement shall be
transferred from the applicable Trust Account to the Note Distribution Account.
(c) On each Monthly Payment Date and Redemption Date, the Indenture
Trustee shall distribute all amounts on deposit in the Note Distribution Account
to Noteholders in respect of the Notes to the extent of amounts due and unpaid
on the Notes for principal and interest in the following amounts and in the
following order of priority (subject to and except as otherwise provided in
Section 5.04(b)):
(i) an amount equal to the Noteholders' Interest Distributable
Amount shall be distributed:
(A) first, to the Class A Noteholders, on a pro rata basis,
without preference or priority of any kind (including
without preference or priority among the different
Classes of the Class A Notes), interest accrued for the
related Interest Accrual Period at the respective
Interest Rates for the different Classes of the Class A
Notes, plus interest due and unpaid on the Class A
Notes from prior Interest Accrual Periods (plus
interest on overdue interest on each Class of the Class
A Notes at the respective Interest Rate for such Class
of the Class A Notes, to the extent permitted by law);
(B) second, after giving effect to clause (i)(A), to the
Class B Noteholders, on a pro rata basis without
preference or priority, interest accrued for the
related Interest Accrual Period at the Class B Interest
Rate on the Class B Notes, plus interest due and unpaid
on the Class B Notes from prior Interest Accrual
Periods (plus interest on overdue interest on the Class
B Notes at the Class B Interest Rate to the extent
permitted by law);
-39-
(C) third, after giving effect to clauses (i)(A) and
(i)(B), to the Class C Noteholders, on a pro rata basis
without preference or priority, interest accrued for
the related Interest Accrual Period at the Class C
Interest Rate on the Class C Notes, plus interest due
and unpaid on the Class C Notes from prior Interest
Accrual Periods (plus interest on overdue interest on
the Class C Notes at the Class C Interest Rate to the
extent permitted by law); and
(ii) an amount equal to the Noteholders' Monthly Principal
Distributable Amount shall be distributed in the following
order of priority in each case to the extent of the
remaining amounts on deposit in the Note Distribution
Account after giving effect to distributions pursuant to
clause (i):
(A) to the Holders of the Class A-1 Notes on account of
principal until the Outstanding Amount of the Class A-1
Notes is reduced to zero;
(B) to the Holders of the Class A-2 Notes on account of
principal until the Outstanding Amount of the Class A-2
Notes is reduced to zero;
(C) to the Holders of the Class A-3 Notes on account of
principal until the Outstanding Amount of the Class A-3
Notes is reduced to zero;
(D) to the Holders of the Class A-4 Notes on account of
principal until the Outstanding Amount of the Class A-4
Notes is reduced to zero;
(E) to the Holders of the Class A-5 Notes on account of
principal until the Outstanding Amount of the Class A-5
Notes is reduced to zero;
(F) to the Holders of the Class B Notes on account of
principal until the Outstanding Amount of the Class B
Notes is reduced to zero; and
(G) to the Holders of the Class C Notes on account of
principal until the Outstanding Amount of the Class C
Notes is reduced to zero.
SECTION 8.03 General Provisions Regarding Accounts.
-------------------------------------
(a) So long as no Default or Event of Default shall have occurred and be
continuing, all or a portion of the funds in the Trust Accounts shall be
invested or reinvested in Eligible Investments pursuant to Section 5.01(b) of
the Transfer and Servicing Agreement by the Indenture Trustee. The Servicer
shall not direct the Indenture Trustee to make any investment of any funds or to
sell any investment held in any of the Trust Accounts unless the security
interest Granted and perfected in such account shall continue to be perfected in
such investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Indenture
Trustee to make any such investment or sale, if requested by the Indenture
Trustee,
-40-
the Issuer shall deliver to the Indenture Trustee an Opinion of Counsel,
acceptable to the Indenture Trustee, to such effect.
(b) Subject to Section 6.01(c), the Indenture Trustee shall not in any way
be held liable by reason of any insufficiency in any of the Trust Accounts
resulting from any loss on any Eligible Investment included therein except for
losses attributable to the Indenture Trustee's failure to make payments on such
Eligible Investments issued by the Indenture Trustee, in its commercial capacity
as principal obligor and not as trustee, in accordance with their terms.
(c) If (i) the Servicer (pursuant to Section 5.01(b) of the Transfer and
Servicing Agreement) shall have failed to give investment directions for any
funds on deposit in the Trust Accounts to the Indenture Trustee by 11:00 a.m.
Eastern Time (or such other time as may be agreed by the Servicer and Indenture
Trustee) on any Business Day or (ii) a Default or Event of Default shall have
occurred and be continuing with respect to the Notes but the Notes shall not
have been declared due and payable pursuant to Section 5.02 or (iii) if such
Notes shall have been declared due and payable following an Event of Default but
amounts collected or receivable from the Trust Estate are being applied in
accordance with Section 5.05 as if there had not been such a declaration, then
the Indenture Trustee shall, to the fullest extent practicable, invest and
reinvest funds in the Trust Accounts (other than the Note Distribution Account)
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 the Owner Trustee or any of their respective Affiliates is
investment manager or advisor).
(d) Nothing in this Section 8.03 shall require the investment of any funds
on deposit in the Note Distribution Account.
SECTION 8.04 Release of Trust Estate. (a) Subject to the payment of it
-----------------------
fees, expenses and indemnities pursuant to Section 6.07, the Indenture Trustee
shall, when required by Section 8.04(b), execute instruments (prepared by the
Issuer) to release (without recourse or warranty) property from the lien of this
Indenture, or convey the Indenture Trustee's interest in the same, in a manner
and under circumstances that are not inconsistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Indenture Trustee
as provided in this Article VIII shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent
or see to the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due the Indenture Trustee pursuant to Section 6.07 have
been paid, release any remaining portion of the Trust Estate that secured the
Notes from the lien of this Indenture and release to the Issuer or any other
Person entitled thereto any funds then on deposit in the Trust Accounts. The
Indenture Trustee shall release property from the lien of this Indenture
pursuant to this Section 8.04(b) only upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and (if required
by the TIA) Independent Certificates in accordance with TIA Sections 314(c) and
314(d)(1) meeting the applicable requirements of Section 11.01.
-41-
SECTION 8.05 Opinion of Counsel. The Indenture Trustee shall receive at
------------------
least seven days notice when requested by the Issuer to take any action pursuant
to Section 8.04(a), accompanied by copies of any instruments involved, and the
Indenture Trustee shall also require, as a condition to such action, an Opinion
of Counsel, in form satisfactory to the Indenture Trustee, stating the legal
effect of any such action, outlining the steps required to complete the same,
and concluding that all conditions precedent to the taking of such action have
been complied with and such action shall not materially and adversely impair the
security for the Notes or the rights of the Noteholders in contravention of the
provisions of this Indenture; provided, however, that such Opinion of Counsel
shall not be required to express an opinion as to the fair value of the Trust
Estate. Counsel rendering any such opinion may rely, without independent
investigation, on the accuracy and validity of any certificate or other
instrument delivered to the Indenture Trustee in connection with any such
action.
ARTICLE IX
Supplemental Indentures
SECTION 9.01 Supplemental Indentures Without Consent of Noteholders.
------------------------------------------------------
(a) Without the consent of the Holders of any Notes but with prior notice
to the Rating Agencies, the Issuer and the Indenture Trustee, when authorized by
an Issuer Order, at any time and from time to time, may enter into one or more
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property
subject or required to be subjected to the lien of this
Indenture, or to subject to the lien of this Indenture
additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another Person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer
herein and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit of the
Holders of the Notes, or to surrender any right or power herein
conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent
with any other provision herein or in any supplemental indenture
or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental
-42-
indenture; provided, that such action shall not adversely affect
in any material respect the interests of the Holders of the
Notes;
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and
to add to or change any of the provisions of this Indenture as
shall be necessary to facilitate the administration of the
trusts hereunder by more than one trustee, pursuant to the
requirements of Article VI;
(vii) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification
of this Indenture under the TIA or under any similar federal
statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA; or
(viii) to enable all or a portion of the Trust to qualify as a
"financial asset securitization investment trust" under federal
tax laws and regulations (a "FASIT"), to permit a FASIT election
to be made under such laws and regulations a nd to make such
modifications to this Indenture as may be permitted by reason of
the making of such election; provided that (i) the Rating Agency
Condition shall have been satisfied with respect thereto, (ii)
an Opinion of Counsel is rendered that such election will not
have material adverse consequences to any Noteholder or Residual
Interestholder, and (iii) the ability of the FASIT to add or
remove assets shall be limited to the same extent as "real
estate mortgage investment conduits" ("REMICs") under applicable
federal tax laws and regulations.
The Indenture Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Holders of the Notes but with
prior notice to the Rating Agencies, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Noteholder.
SECTION 9.02 Supplemental Indentures with Consent of Noteholders.
----------------------------------------------------
The Issuer and the Indenture Trustee, when authorized by an Issuer Order, also
may, with prior notice to the Rating Agencies and with the consent of the
Majority Noteholders, by Act of such Majority Noteholders delivered to the
Issuer and the Indenture Trustee, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the
-43-
Notes under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
affected thereby:
(i) change the date of payment of any installment of principal of or
interest on any Note, or reduce the principal amount thereof, the
interest rate thereon or the Redemption Price with respect
thereto, change the provisions of this In denture relating to the
application of collections on, or the proceeds of the sale of,
the Trust Estate to payment of principal of or interest on the
Notes, or change any place of payment where, or the coin or
currency in which, any Note or the interest thereon is payable,
or impair the right to institute suit for the enforcement of the
provisions of this Indenture requiring the application of funds
available therefor, as provided in Article V, to the payment of
any such amount due on the Notes on or after the respective due
dates thereof (or, in the case of redemption, on or after the
Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the Notes, the
consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of certain defaults hereunder and their
consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to the definition
of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the Notes
required to direct the Indenture Trustee pursuant to Sections
5.11 or 5.16(b) or to direct the Indenture Trustee to sell or
liquidate the Trust Estate pursuant to Section 5.04;
(v) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional
provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Note affected
thereby;
(vi) modify any of the provisions of this Indenture in such manner as
to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Monthly Payment Date
(including the calculation of any of the individual components of
such calculation) or to affect the rights of the Holders of Notes
to the benefit of any provisions for the redemption of the Notes
contained herein; or
(vii) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to any part of the
Trust Estate or, except as otherwise permitted or contemplated
herein, terminate the lien of this Indenture on any property at
any time subject hereto or deprive the Holder of any Note of the
security provided by the lien of this Indenture.
-44-
The Indenture Trustee may in its discretion determine whether or not any Notes
would be affected by any supplemental indenture and any such determination shall
be conclusive upon the Holders of all Notes, whether theretofore or thereafter
authenticated and delivered hereunder. The Indenture Trustee shall not be liable
for any such determination made in good faith.
It shall not be necessary for any Act of Noteholders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of any
supplemental indenture pursuant to this Section, the Indenture Trustee shall
mail to the Holders of the Notes to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
This Section 9.02 is subject to Section 5.07.
SECTION 9.03 Execution of Supplemental Indentures. In executing, or
------------------------------------
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.01 and 6.02, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
SECTION 9.04 Effect of Supplemental Indenture. Upon the execution of any
--------------------------------
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations of
rights, obligations, duties, liabilities and immunities under this Indenture of
the Indenture Trustee, the Issuer and the Holders of the Notes shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.05 Conformity with Trust Indenture Act. Every amendment of this
-----------------------------------
Indenture and every supplemental indenture executed pursuant to this Article IX
shall conform to the requirements of the Trust Indenture Act as then in effect
so long as this Indenture shall then be qualified under the Trust Indenture Act.
SECTION 9.06 Reference in Notes to Supplemental Indentures. Notes
---------------------------------------------
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee
-45-
shall so determine, new Notes so modified as to conform, in the opinion of the
Indenture Trustee and the Issuer, to any such supplemental indenture may be
prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X
Redemption of Notes
SECTION 10. Redemption. The Notes are subject to redemption in whole, but
----------
not in part on any Monthly Payment Date on which the Servicer exercises its
option to purchase the Trust Estate pursuant to Section 9.01(a) of the Transfer
and Servicing Agreement, for a purchase price equal to the Redemption Price
(such Monthly Payment Date being referred to as the "Redemption Date"). The
Servicer shall furnish the Rating Agencies notice of such redemption. If the
Notes are to be redeemed pursuant to this Section 10.01, the Servicer shall
furnish notice of such election to the Indenture Trustee not later than 50 days
prior to the Redemption Date and the Issuer shall deposit or cause to be
deposited by 10:00 A.M. New York City time on the Redemption Date with the
Indenture Trustee in the Note Distribution Account the Redemption Price of each
Class of Notes whereupon all such Notes shall be due and payable on the
Redemption Date upon the furnishing of a notice complying with Section 10.02 to
each Holder of the Notes.
SECTION 10. Form of Redemption Notice. Notice of redemption under Section
-------------------------
10.01 shall be given by the Indenture Trustee by first-class mail, postage
prepaid, or by facsimile mailed or transmitted, not later than 30 days prior to
the applicable Redemption Date to each Holder of Notes, as of the close of
business on the Record Date preceding the giving of such notice, at such
Holder's address or facsimile number appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Notes are to be surrendered for payment of the
Redemption Price (which shall be the office or agency of the Issuer
to be maintained as provided in Section 3.02).
Notice of redemption of the Notes shall be given by the Indenture Trustee in the
name and at the expense of the Issuer. Failure to give notice of redemption, or
any defect therein, to any Holder of any Note shall not impair or affect the
validity of the redemption of any other Note.
SECTION 10. Notes Payable on Redemption Date. The Notes shall, following
--------------------------------
notice of redemption as required by Section 10.02, on the Redemption Date become
due and payable at the Redemption Price and (unless the Issuer shall default in
the payment of the Redemption Price) no
-46-
interest shall accrue on the Redemption Price for any period after the date to
which accrued interest is calculated for purposes of calculating the Redemption
Price.
ARTICLE XI
Miscellaneous
SECTION 11.01 Compliance Certificates and Opinions, etc.
-----------------------------------------
(a) Upon any application or request by the Issuer to the Indenture Trustee
to take any action under any provision of this Indenture, the Issuer shall
furnish to the Indenture Trustee (i) an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, (ii) an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate from
a firm of certified public accountants meeting the applicable requirements of
this Section, except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or
condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as
is necessary to enable such signatory to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied
with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the
basis for the release of any property or securities subject to
the lien of this Indenture, the Issuer shall, in addition to any
obligation imposed in Section 11.01(a) or elsewhere in this
Indenture, furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within 90 days of
-47-
such deposit) to the Issuer of the Collateral or other property
or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in
clause (i) above, the Issuer shall also deliver to the Indenture
Trustee an Independent Certificate as to the same matters, if the
fair value to the Issuer of the property or securities to be so
deposited and of all other such property or securities made the
basis of any such release since the commencement of the then-
current fiscal year of the Issuer, as set forth in the
certificates delivered pursuant to clause (i) above and this
clause (ii), is 10% or more of the Outstanding Amount of the
Notes, but such a certificate need not be furnished with respect
to any property or securities so deposited, if the fair value
thereof to the Issuer as set forth in the related Officer's
Certificate is less than $25,000 or less than one percent of the
Outstanding Amount of the Notes.
(iii) Whenever any property or securities are to be released from the
lien of this Indenture, the Issuer shall also furnish to the
Indenture Trustee an Officer's Certificate certifying or stating
the opinion of each person signing such certificate as to the
fair value (within 90 days of such release) of the property or
securities proposed to be released and stating that in the
opinion of such person the proposed release shall not impair the
security under this Indenture in contravention of the provisions
hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in
clause (iii) above, the Issuer shall also furnish to the
Indenture Trustee an Independent Certificate as to the same
matters if the fair value of the property or securities and of
all other property, other than property as contemplated by clause
(v) below or securities released from the lien of this Indenture
since the commencement of the then-current calendar year, as set
forth in the certificates required by clause (iii) above and this
clause (iv), equals 10% or more of the Outstanding Amount of the
Notes, but such certificate need not be furnished in the case of
any release of property or securities if the fair value thereof
as set forth in the related Officer's Certificate is less than
$25,000 or less than one percent of the then Outstanding Amount
of the Notes.
(v) Notwithstanding any other provision of this Section, the Issuer
may, without compliance with the requirements of the other
provisions of this Section, (A) collect, liquidate, sell or
otherwise dispose of Receivables or Financed Boats as and to the
extent permitted or required by the Basic Documents and (B) make
cash payments out of the Trust Accounts as and to the extent
permitted or required by the Basic Documents, so long as the
Issuer shall deliver to the Indenture Trustee every six months,
commencing on the day which is six months after the Closing Date
(or, if such day is not a Business Day, on the next
-48-
Business Day), an Officer's Certificate of the Issuer stating
that all the dispositions of Collateral described in clauses (A)
or (B) above that occurred during the preceding six calendar
months were in the ordinary course of the Issuer's business and
that the proceeds thereof were applied in accordance with the
Basic Documents.
SECTION 11.02 Form of Documents Delivered to Indenture Trustee. In any case
------------------------------------------------
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion is
based are erroneous. Any such certificate of an Authorized Officer or Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of any
party to the Transfer and Servicing Agreement, stating that the information with
respect to such factual matters is in the possession of such party to the
Transfer and Servicing Agreement, unless the person signing such certificate of
an Authorized Officer or such Opinion of Counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
SECTION 11.03 Acts of Noteholders.
-------------------
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Noteholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Noteholders in person or
-49-
by agents duly appointed in writing; and except as herein otherwise expressly
provided such action shall become effective when such instrument or instruments
are delivered to the Indenture Trustee and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Noteholders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Notes shall bind the Holder of every Note
issued upon the registration thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Indenture
Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.
SECTION 11.04 Notices, etc., to Indenture Trustee, Issuer and Rating
------------------------------------------------------
Agencies. Any request, demand, authorization, direction, notice, consent, waiver
--------
or Act of Noteholders or other documents provided or permitted by this Indenture
to be made upon, given or furnished to or filed with:
(i) the Indenture Trustee by any Noteholder or by the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Indenture Trustee at its
Corporate Trust Office, or
(ii) the Issuer by the Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if in writing and mailed
first-class, postage prepaid to the Issuer addressed to:
Distribution Financial Services Marine Trust 1999-2, in care of
the Owner Trustee at its Corporate Trust Office, or at any other
address previously furnished in writing to the Indenture Trustee
by the Issuer. The Issuer shall promptly transmit any notice
received by it from the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, personally delivered
or mailed by certified mail, return receipt requested, to (i) in the case of
Fitch, at the following address: Fitch IBCA, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Asset-Backed Securities Surveillance Group, (ii) in the
case of Standard & Poor's, at the following address: Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇
▇▇▇▇▇), ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Surveillance
Department, (iii) in the case of Moody's, at the following address: ▇▇▇▇▇'▇
Investors Service, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Moody's
-50-
ABS Monitoring Group ; or as to each of the foregoing, at such other address as
shall be designated by written notice to the other parties.
SECTION 11.05 Notices to Noteholders; Waiver. Where this Indenture provides
------------------------------
for notice to Noteholders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed, first-
class, postage prepaid, or sent by facsimile transmission, to each Noteholder
affected by such event, at such Holder's address as it appears on the Note
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Noteholders is given by mail, neither the failure to mail such notice nor any
defect in any notice so mailed to any particular Noteholder shall affect the
sufficiency of such notice with respect to other Noteholders, and any notice
that is mailed in the manner herein provided shall conclusively be presumed to
have been duly given.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by any Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Noteholders shall be filed with the Indenture Trustee but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a result of
a strike, work stoppage or similar activity, it shall be impractical to mail
notice of any event to Noteholders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies, failure to
give such notice shall not affect any other rights or obligations created
hereunder, and shall not under any circumstance constitute a Default or Event of
Default.
SECTION 11.06 Alternate Payment and Notice Provisions. Notwithstanding any
---------------------------------------
provision of this Indenture or any of the Notes to the contrary, the Issuer may
enter into any agreement with any Holder of a Note providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such Holder,
that is different from the methods provided for in this Indenture for such
payments or notices. The Issuer shall furnish to the Indenture Trustee a copy of
each such agreement and the Indenture Trustee shall cause payments to be made
and notices to be given in accordance with such agreement if it is
administratively acceptable to it.
SECTION 11.07 Conflict with Trust Indenture Act. If any provision hereof
---------------------------------
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on any
person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
-51-
SECTION 11.08 Effect of Headings and Table of Contents. The Article and
----------------------------------------
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.09 Successors and Assigns. All covenants and agreements in this
----------------------
Indenture and the Notes by the Issuer shall bind its successors and assigns,
whether so expressed or not. All agreements of the Indenture Trustee in this
Indenture shall bind its successors, co-trustees and agents.
SECTION 11.10 Separability. In case any provision in this Indenture or in
------------
the Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 11.11 Benefits of Indenture. Nothing in this Indenture or in the
---------------------
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Noteholders, and any other party
secured hereunder, and any other Person with an ownership interest in any part
of the Trust Estate, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 11.12 Legal Holidays. In any case where the date on which any
--------------
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
SECTION 11.13 GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts. This Indenture may be executed in any number of
------------
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
SECTION 11.15 Recording of Indenture. If this Indenture is subject to
----------------------
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense and the Issuer shall deliver to the
Indenture Trustee an Opinion of Counsel to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
SECTION 11.16 Trust Obligation. No recourse may be taken, directly or
----------------
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith,
-52-
against (i) the Indenture Trustee or the Owner Trustee in its individual
capacity, (ii) the Residual Interestholder or any other owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, officer,
director, employee or agent of the Indenture Trustee or the Owner Trustee in its
individual capacity, the Residual Interestholder or any other holder of a
beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or
of any successor or assign of the Indenture Trustee or the Owner Trustee in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacities) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity. For all purposes of
this Indenture, 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 Article VI, VII and VIII of the Trust Agreement.
SECTION 11.17 No Petition. The Indenture Trustee, by entering into this
-----------
Indenture, and each Noteholder, by accepting a Note, and each Note Owner, by
accepting a beneficial interest in a Note, hereby covenant and agree that they
shall not at any time acquiesce, petition or otherwise invoke or cause (or join
with any other Person in acquiescing, petitioning or otherwise invoking or
causing) the Depositor or the Issuer or the Boat Mortgage Trust to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Depositor or 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 Depositor or the Issuer or the Boat Mortgage Trust or
any substantial part of the property of the Depositor or the Issuer or the Boat
Mortgage Trust, or ordering the winding up or liquidation of the affairs of the
Depositor or the Issuer or the Boat Mortgage Trust.
SECTION 11.18 No Prohibited Transaction. Each investor using the assets of
-------------------------
a Benefit Plan which acquires a Note, or to whom a Note is transferred by its
acceptance and holding of any Note or an interest therein, will be deemed to
represent and warrant that its acquisition and continued holding will not,
throughout the term of the holding, result in a non-exempt prohibited
transaction under Section 406 of the Employment Retirement Income Security Act
of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as
amended.
SECTION 11.19 Inspection. The Issuer agrees that, on reasonable prior
----------
notice, it shall permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The Indenture
Trustee shall, and shall cause its representatives to, hold in confidence all
such information except to the extent disclosure may be required by law (and all
reasonable applications for confidential treatment are unavailing) and except to
the extent that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder.
-53-
SECTION 11.20 Submission to Jurisdiction. Each of the parties hereto hereby
--------------------------
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Indenture or any other Basic Document or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of such action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Person at its
address set forth in Section 11.04 or at such other address notified to the
other party to this Indenture 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 ▇▇▇ in
any other jurisdiction.
[SIGNATURES FOLLOW]
-54-
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this
Indenture to be duly executed by their respective officers, thereunto duly
authorized, all as of the day and year first above written.
DISTRIBUTION FINANCIAL SERVICES MARINE
TRUST 1999-2,
By: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Corporate Trust Officer
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Indenture
Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Trust Officer
S-1
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
BEFORE ME, the undersigned authority, a Notary Public in and for said county
and state, on this day personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, known to me to be
the person and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of DISTRIBUTION FINANCIAL SERVICES
MARINE TRUST 1999-2, a New York common law trust, and that (s)he executed the
same as the act of said trust for the purpose and consideration therein
expressed, and in the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 27th day of May, 1999.
/s/ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Notary Public in and for the State of Minnesota
My commission expires:
______________________________
▇-▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, a Notary Public in and for said county
and state, on this day personally appeared ▇▇▇▇▇ ▇▇▇▇▇▇▇, known to me to be the
person and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of THE CHASE MANHATTAN BANK, a New
York banking corporation, and that (s)he executed the same as the act of said
corporation for the purpose and consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 27th day of May, 1999.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------
Notary Public in and for the State of New York.
My commission expires:
_______________________________
S-3
EXHIBIT A
(FORM OF NOTE)
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
[For Class B Notes Only: THIS CLASS B NOTE IS SUBORDINATED TO THE CLASS A NOTES
AS CONTEMPLATED BY THE INDENTURE REFERRED TO BELOW.]
[For Class C Notes Only: THIS CLASS C NOTE IS SUBORDINATED TO THE CLASS A NOTES
AND THE CLASS B NOTES AS CONTEMPLATED BY THE INDENTURE REFERRED TO BELOW.]
REGISTERED
$____________
Class [ ] Interest Rate: __%
CUSIP Number: ___________
ISIN Number: ___________
No. R-__
DISTRIBUTION FINANCIAL SERVICES MARINE TRUST 1999-2
CLASS [ ] ASSET BACKED NOTES
Distribution Financial Services Marine Trust 1999-2, a New York common law
trust (herein referred to as the "Issuer"), for value received, hereby promises
to pay to [___________], or registered assigns, the principal sum of ___________
DOLLARS payable on each Monthly Payment Date in an amount equal to the result
obtained by multiplying (i) a fraction the numerator of which is the outstanding
principal balance of this Note and the denominator of which is the aggregate
outstanding principal balance of the Notes of this Class by (ii) the aggregate
amount, if any, payable from the Note Distribution Account in respect of
principal on the Notes of this Class pursuant to the Indenture dated as of May
1, 1999 (the "Indenture"), between the Issuer and The Chase Manhattan Bank, a
New York banking corporation, as Indenture Trustee (the "Indenture Trustee");
provided, however, that the entire unpaid principal amount of this Note shall be
due and payable on the earlier of the Stated Maturity Date of this Class and
the Redemption Date, if any. Capitalized terms used but not defined herein are
as defined in or by reference in the Indenture, which also contains rules as to
construction that shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum shown above
on each Monthly Payment Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on the
preceding Monthly Payment Date (after giving effect to all payments of
principal made on the preceding Monthly Payment Date), subject to certain
limitations contained in the Indenture. Interest on this Note shall accrue for
each Monthly Payment Date from and including the Closing Date (in the case of
the first Monthly Payment Date) or from and including the most recent Monthly
Payment Date on which interest has been paid to but excluding such Monthly
Payment Date. (Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.) Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
-2-
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date:_________________
DISTRIBUTION FINANCIAL SERVICES
MARINE TRUST 1999-2,
By: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee under the Trust
Agreement
By:____________________________________
Authorized Officer
-3-
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-
mentioned Indenture.
THE CHASE MANHATTAN BANK, not in its
Date:____________________
individual capacity but solely as
Indenture Trustee
By:_________________________________
Authorized Officer
-4-
This Note is one of a duly authorized issue of Notes of the Issuer, issued
under the Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture. In the event
of any conflict or inconsistency between this Note and the Indenture, the
Indenture shall govern in all respects.
Payments on this Note, shall be made in accordance with the Indenture.
Any reduction in the principal amount of this Note (or any one or more
Predecessor Notes) effected by any payments made on any Monthly Payment Date
shall be binding upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon.
The Issuer shall pay interest on overdue installments of interest at the
Interest Rate for this Class to the extent lawful.
The transfer and exchange of this Note are subject to the terms of the
Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) the Residual Interestholder or any other owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
officer, director, employee or agent of the Indenture Trustee or the Owner
Trustee in its individual capacity, the Residual Interestholder or any other
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the Owner
Trustee have no such obligations in their individual capacities) and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each investor using the assets of a Benefit Plan which acquires a Note, or
to whom a Note is transferred by its acceptance and holding of any Note or an
interest therein, will be deemed to represent and warrant that its acquisition
and continued holding will not, throughout the term of the holding, result in a
non-exempt prohibited transaction under Section 406 of the Employment Retirement
Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue
Code of 1986, as amended.
Each Noteholder, by accepting a Note, and each Note Owner, by accepting a
beneficial interest in a Note, covenants and agrees that such Noteholder and
Note Owner shall not at any time acquiesce, petition or otherwise invoke or
cause (or join with any other Person in acquiescing, petitioning or otherwise
invoking or causing) the Depositor or the Issuer or the Boat Mortgage Trust
-5-
to invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Depositor or 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 Depositor or the Issuer or the Boat Mortgage
Trust or any substantial part of the property of the Depositor or the Issuer or
the Boat Mortgage Trust, or ordering the winding up or liquidation of the
affairs of the Depositor or the Issuer or the Boat Mortgage Trust.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for all purposes, including federal, state and local income,
single business and franchise tax purposes, the Notes shall qualify as
indebtedness of the Issuer secured by the Trust Estate. Each Noteholder, by
acceptance of a Note (and each Note Owner by acceptance of a beneficial interest
in a Note), agrees to treat the Notes for all purposes, including federal, state
and local income, single business and franchise tax purposes, as indebtedness of
the Issuer.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note is registered (as of the
day of determination or as of such other date as may be specified in the
Indenture) as the owner hereof for the purpose of receiving payments of
principal of and interest, if any, on this Note and for all other purposes
whatsoever, whether or not this Note be overdue, and none of the Issuer, the
Indenture Trustee or any agent of the Issuer or the Indenture Trustee shall be
affected by notice to the contrary.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and interest on this Note at the
times, place and rate, and in the coin or currency contemplated by the Indenture
and this Note.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of The Chase Manhattan Bank, in its
individual capacity, Norwest Bank Minnesota, National Association, in its
individual capacity, the Residual Interestholder or any other owner of a
beneficial interest in the Issuer, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns
shall be personally liable for, nor shall recourse be had to any of them for,
the payment of principal of or interest on this Note or performance of, or
failure to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The Holder of this Note by its acceptance hereof
(and each Note Owner, by accepting a beneficial interest in this Note) agrees
that, except as expressly provided in the Basic Documents, in the case of an
Event of Default under the Indenture, no claim shall be had against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing
-6-
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
-7-
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
________________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _________________ attorney, to transfer said Note on __________ the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: */
_______________ ________________________________________
Signature Guaranteed:
*/
________________________________________
________________________________________
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
-8-