EXHIBIT 99.1
________________________________________________________________
BOAT MORTGAGE TRUST AGREEMENT
AMONG
DEUTSCHE FINANCIAL SERVICES CORPORATION
AND
GANIS CREDIT CORPORATION,
AS SETTLORS AND INITIAL BENEFICIARIES,
AND
WILMINGTON TRUST COMPANY,
AS THE TRUSTEE
DATED AS OF MAY 1, 1999
________________________________________________________________
TABLE OF CONTENTS
Page
ARTICLE I
CREATION OF TRUST
Section 1.1. Creation of Trust.......................................... 1
ARTICLE II
ASSIGNMENT OF LIENS; PREFERRED MORTGAGES; SUPPLEMENTS
Section 2.1. Assignment of Liens........................................ 1
Section 2.2. Boat Receivables; Preferred Mortgages...................... 2
Section 2.3. Supplements................................................ 2
ARTICLE III
APPOINTMENT OF AND ACCEPTANCE BY TRUSTEE
Section 3.1. Appointment of and Acceptance by the Trustee................. 2
ARTICLE IV
DUTIES AND POWERS OF TRUST AND TRUSTEE;TRUSTEE LIABILITY
Section 4.1. Duties and Powers of Trustee; Limitations on Trust Activity 3
Section 4.2. Duty of Care............................................... 3
Section 4.3. Certain Matters Affecting the Trustee...................... 4
Section 4.4. Trustee Not Liable......................................... 5
Section 4.5. Indemnity of Trustee....................................... 6
Section 4.6. Trustee's Right Not to Act................................. 6
Section 4.7. Doing Business in Other Jurisdictions...................... 6
Section 4.8. Notices from the Coast Guard and Other Persons............. 7
ARTICLE V
QUALIFICATION, RESIGNATION AND REMOVAL OF TRUSTEE
Section 5.1. Qualification of Trustee................................... 7
Section 5.2. Resignation or Removal of Trustee.......................... 7
Section 5.3. Successor Trustee.......................................... 8
Section 5.4. Merger or Consolidation of Trustee......................... 8
Section 5.5. Appointment of Co-Trustee, Separate Trustee, or Nominee.... 8
Section 5.6. Representations and Warranties of Trustee.................. 10
Section 5.7. Trustee's Fees and Expenses................................ 10
i
ARTICLE VI
PERFECTION OF LIENS
Section 6.1. Perfection of Liens........................................ 11
Section 6.2. Purchase of Boat Receivables............................... 11
Section 6.3. Access to Records; Further Assurances...................... 12
ARTICLE VII
TERMINATION
Section 7.1. Termination of the Trust.................................... 12
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1. Amendment................................................... 13
Section 8.2. Governing Law............................................... 13
Section 8.3. Notices..................................................... 13
Section 8.4. Severability of Provisions.................................. 14
Section 8.5. Third Party Beneficiaries................................... 14
Section 8.6. Nonpetition Covenant........................................ 14
Section 8.7. Waiver...................................................... 14
Section 8.8. Construction................................................ 15
Section 8.9. Entity...................................................... 15
Section 8.10. Successors and Assigns...................................... 15
Section 8.11. Counterparts................................................ 15
Section 8.12. Headings.................................................... 15
Section 8.13. Entire Agreement............................................ 16
Section 8.14. Submission to Jurisdiction.................................. 16
Section 8.15. Servicing of Boat Receivables............................... 16
ii
EXHIBITS
Exhibit A Definitions
Exhibit B Form of Supplement
Exhibit C Form of Assignment
BOAT MORTGAGE TRUST AGREEMENT
BOAT MORTGAGE TRUST AGREEMENT, dated as of May 1, 1999 (as it may be
amended, amended and restated, supplemented or otherwise modified from time to
time in accordance with its terms, this "Agreement"), among Deutsche Financial
---------
Services Corporation, a Nevada corporation ("DFS"), Ganis Credit Corporation, a
---
Delaware corporation ("Ganis" and, together with DFS, the "Settlors" and the
----- --------
"Initial Beneficiaries"), and Wilmington Trust Company, a Delaware banking
----------------------
corporation, as trustee (the "Trustee"). Certain capitalized terms used herein
-------
are defined in Exhibit A.
---------
WHEREAS, DFS and Ganis have financed and may in the future finance
Documented Boats; and
WHEREAS, the parties hereto wish to set forth the terms upon which the
Trustee shall act as trustee for the benefit of the Initial Beneficiaries and
the Collateral Beneficiaries with respect to Liens in Documented Boats.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
CREATION OF TRUST
Section 1.1 Creation of Trust.
-----------------
It is the intention of the parties to form a common-law trust and that this
Agreement constitute the governing instrument of such trust, which shall be
known as "DFS Ganis Boat Mortgage Trust" (the "Trust"). The Settlors hereby
-----
form the Trust and deliver to the Trustee the sum of $1.00 to have and to hold,
with such Liens as the Trustee may from time to time hold, for the benefit of
the Initial Beneficiaries and the Collateral Beneficiaries under the terms
provided herein.
ARTICLE II
ASSIGNMENT OF LIENS; PREFERRED MORTGAGES; SUPPLEMENTS
Section 2.1 Assignment of Liens.
-------------------
Pursuant to one or more Assignments entered into by DFS or Ganis and the
Trustee from time to time, DFS or Ganis shall assign Liens to the Trustee.
Section 2.2 Boat Receivables; Preferred Mortgages.
-------------------------------------
From time to time at the request of DFS or Ganis, the Trustee shall enter
into Boat Receivables and Preferred Mortgages naming the Trustee as the holder
of Liens with respect to Documented Boats.
Section 2.3 Supplements.
-----------
From time to time at the request of DFS or Ganis, the Trustee shall enter
into a Supplement with respect to a Financing Transaction. Each Supplement
shall identify the Documented Boats relating to Boat Receivables involved in
such Financing Transaction and the Persons which are the Collateral
Beneficiaries with respect thereto. In the event that a Financing Transaction
provides for additional Boat Receivables to be financed from time to time
(including by transferring Boat Receivables from DFS to Ganis, from DFS or Ganis
to a Depositor, from a Depositor to a Securitization Trust (and pledging Boat
Receivables to one or more Securitization Trustees) from time to time after the
date on which Asset Backed Securities relating thereto are issued), then the
Trustee at the request of DFS or Ganis shall enter into additional Supplements
or amendments to the related Supplement in order to cover the Documented Boats
relating to such Boat Receivables.
ARTICLE III
APPOINTMENT OF AND ACCEPTANCE BY TRUSTEE
Section 3.1 Appointment of and Acceptance by the Trustee.
--------------------------------------------
(a) Each of the Initial Beneficiaries hereby designates and appoints
Wilmington Trust Company as Trustee to act as trustee of the Trust for the
benefit of the Initial Beneficiaries and, upon the financing of Boat Receivables
in a Financing Transaction (including upon the transfer of Boat Receivables from
DFS to Ganis, from DFS or Ganis to a Depositor, from a Depositor to a
Securitization Trust and the pledge of Boat Receivables to one or more
Securitization Trustees), for the benefit of the Collateral Beneficiaries, for
purposes of perfecting the respective interests of the Initial Beneficiaries and
the Collateral Beneficiaries in the Documented Boats (and, to the extent
applicable, for purposes of perfecting any transfers or pledges of interests in
this Agreement relating thereto). The Trustee hereby accepts such appointment.
Each of the Initial Beneficiaries authorizes (and each of the Collateral
Beneficiaries shall be deemed to authorize) the Trustee to take such actions as
trustee on its behalf, and to exercise such powers as are delegated to the
Trustee by the terms of this Agreement, together with such powers as are
reasonably incidental thereto. The Trustee acknowledges and agrees that, in
this connection, it shall act as trustee for the Initial Beneficiaries and the
Collateral Beneficiaries with the duties expressly provided in this Agreement
and any Supplement.
(b) The Trustee shall have such rights, powers and duties as are
specifically and expressly required by this Agreement.
2
ARTICLE IV
DUTIES AND POWERS OF TRUST AND TRUSTEE;
TRUSTEE LIABILITY
Section 4.1 Duties and Powers of Trustee; Limitations on Trust Activity.
-----------------------------------------------------------
(a) The Trustee undertakes to perform such duties, and only such duties, as
are specified in this Agreement, including entering into Supplements and
Assignments from time to time upon written instruction. No implied covenants
or obligations shall be read into this Agreement.
(b) Except as provided in or otherwise expressly contemplated by this
Agreement, the Trustee shall not: (i) borrow money on behalf of the Trust; (ii)
make loans or extend credit on behalf of the Trust; (iii) invest in or
underwrite securities; (iv) release or transfer Liens; (v) acquire any assets;
(vi) engage in any trade or business; or (vii) enter into any agreements or
contracts.
(c) The Trustee shall have the authority and such powers as are necessary
and appropriate to the conduct of its duties as set forth in this Agreement and
in the Supplements.
Section 4.2 Duty of Care.
------------
(a) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own grossly negligent action, its own grossly
negligent failure to act, its own bad faith, its own breach of its
representations, warranties or covenants given in its individual capacity, or
its own willful misfeasance; provided, however, that:
-------- -------
(i) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it or any error of judgment, in each case made in
good faith by any officer of, or any other employee of the corporate trust
office of, the Trustee, including any vice-president, trust officer or any other
officer of the Trustee customarily performing functions similar to those
performed by such officers or to whom any corporate trust matter is referred
because of such Person's knowledge of or familiarity with the particular
subject, unless it shall be proved that the Trustee was grossly negligent or
acted with willful misfeasance in performing its duties in accordance with the
terms of this Agreement; and
(ii) the Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken in good faith in accordance with
the express direction of the Initial Beneficiaries (to the extent relating to
Documented Boats which are not covered by a Supplement) or a Collateral
Beneficiary (with respect to Documented Boats which are covered by a Supplement)
relating to the exercise of any trust power conferred upon the Trustee under
this Agreement.
3
(b) Notwithstanding Section 4.2(a), the Trustee shall not be required to
--------------
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties under this Agreement, or in the exercise of any
of its rights or powers, if there shall be reasonable grounds for believing that
the repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(c) Except for actions expressly authorized by this Agreement, the Trustee
shall take no action as to which the Trustee has been notified in writing by any
Initial Beneficiary, or any Collateral Beneficiary, that such action would
impair perfection of the Liens.
(d) All information obtained by the Trustee regarding the administration
of the Trust, whether upon the exercise of its rights under this Agreement or
otherwise, shall be maintained by the Trustee in confidence and shall not be
disclosed to any other Person other than to the Initial Beneficiaries, the
Collateral Beneficiaries or the Servicer unless such disclosure is permitted by
this Agreement, is reasonably necessary or incidental to the Trustee's discharge
of its duties or exercise of its rights hereunder, is required by any applicable
law or regulation or pursuant to subpoena (and the Trustee has provided notice
thereof to the Initial Beneficiaries), or such information is already otherwise
publicly available.
Section 4.3 Certain Matters Affecting the Trustee.
-------------------------------------
Except as otherwise provided in this Agreement:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, officer's certificate, or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper Person or Persons;
(b) the Trustee may consult with counsel, and any opinion of counsel shall
be full and complete authorization and protection in respect of any action taken
or suffered or omitted by it under this Agreement in good faith and in
accordance with such opinion of counsel;
(c) the Trustee shall be under no obligation to exercise or to monitor any
of the rights or powers vested in it by this Agreement, or to institute, conduct
or defend any litigation under this Agreement or in relation to this Agreement,
at the request, order or direction of any Person, unless such requesting Person
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that may be incurred therein or thereby; and the
right of the Trustee to perform any discretionary act enumerated in this
Agreement shall not be construed as a duty.
(d) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document, unless requested in writing to do so
4
by an Initial Beneficiary or a Collateral Beneficiary; provided, however, that
-------- -------
if the payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such cost, expense or liability as a condition to
so proceeding; the reasonable expense of every such examination shall be paid by
the Person requesting such examination or, if paid by the Trustee, shall be
reimbursed pursuant to Section 5.7;
-----------
(e) the Trustee may execute any of the trusts or powers under this
Agreement or perform any duties under this Agreement either directly or by or
through agents or attorneys or one or more custodians, in each case at the
expense of the Initial Beneficiaries, and the Trustee shall not be liable for
the acts or omissions of any agent or attorney selected by the Trustee in good
faith with reasonable care;
(f) the Trustee shall not have a duty or obligation to manage, control,
prepare, file, or maintain any report, license or registration, or to use, sell,
dispose of or otherwise deal with the Preferred Mortgages or the Liens except as
otherwise provided for in this Agreement; and
(g) in the event the Trustee is reasonably uncertain as to the application
of any provision of this Agreement, or such provision is ambiguous as to its
application or is, or reasonably appears to be, in conflict with any provision
hereof, or in the event that this Agreement permits any discretionary judgment
by the Trustee or is silent or unclear as to the course of action which the
Trustee should take with respect to a particular set of facts, then the Trustee
may seek instructions from the Initial Beneficiaries (with respect to Documented
Boats that are not covered by a Supplement) or the applicable Collateral
Beneficiaries (with respect to Documented Boats that are covered by a
Supplement) as to the intent of this Agreement with respect to such uncertainty,
ambiguity, conflict, fact pattern or other situation and shall not be liable to
any Person to the extent that it acts reasonably and in good faith in accordance
with instructions of the Initial Beneficiaries (with respect to Documented Boats
that are not covered by a Supplement) or the applicable Collateral Beneficiaries
(with respect to Documented Boats that are covered by a Supplement), provided
--------
that this Agreement is promptly amended in accordance with Section 8.1 hereof to
reflect such interpretation.
Section 4.4 Trustee Not Liable.
------------------
The Trustee shall at no time have any responsibility or liability for or
with respect to (a) the validity or sufficiency of this Agreement, any
Supplement or Assignment or the due execution hereof by the Initial
Beneficiaries or the legality, validity and enforceability of any Lien; (b) the
perfection or priority of such Lien or the maintenance of any such perfection
and priority; (c) the validity of the transfer of any Lien to the Trustee; (d)
the acts or omissions of any Initial Beneficiary in connection with the
financing of any Documented Boats; or (e) any action by the Trustee taken at the
instruction of the Initial Beneficiaries or any Collateral Beneficiary;
provided, however, that the foregoing shall not (x) relieve the Trustee of its
-------- -------
5
obligation to perform its duties under this Agreement or any Supplement or
Assignment or (y) limit the Trustee's responsibility for its representations and
warranties set forth in Section 5.6. Except with respect to a claim based on
-----------
the Trustee's willful misconduct, bad faith or gross negligence, no recourse
shall be had against the institution serving as the Trustee in its individual
capacity for any claim based on any provision of this Agreement, any Supplement,
or any Assignment.
Section 4.5 Indemnity of Trustee.
--------------------
The Initial Beneficiaries shall indemnify and hold harmless the Trustee (in
its individual and trust capacities) with respect to any loss, liability or
expense, including reasonable attorneys' and other professionals' fees and
expenses (collectively "Claims"), arising out of or incurred in connection with
------
(a) any of the Liens or (b) the Trustee's acceptance or performance of the
trusts and duties contained in this Agreement or any Supplement or Assignment,
provided, however, that the Trustee shall not be indemnified or held harmless as
-------- -------
to any Claim (i) for which either Initial Beneficiary shall be liable and shall
have paid pursuant to this Agreement, (ii) incurred by reason of the Trustee's
willful misfeasance, bad faith or gross negligence, or (iii) incurred by reason
of the Trustee's breach of its respective representations and warranties set
forth in Section 5.6. This Section 4.5 shall survive termination of this
----------- -----------
Agreement.
Section 4.6 Trustee's Right Not to Act.
--------------------------
Notwithstanding anything to the contrary contained herein, the Trustee
shall have the right to decline to act in any particular manner otherwise
provided for herein if the Trustee, being advised in writing by counsel,
determines that such action may not lawfully be taken, or if the Trustee in good
faith shall determine that such action would be illegal or subject the Trustee
to personal liability.
Section 4.7 Doing Business in Other Jurisdictions.
--------------------------------------
Notwithstanding anything contained herein to the contrary, the Trustee
shall not be required to take any action in any jurisdiction other than in the
State of its incorporation or any State in which it is qualified to do business
(each, a "State of Qualification") if the taking of such action may (i) require
----------------------
the consent, approval, authorization or order of, or the giving of notice to, or
the registration with, or the taking of any other action in respect of, any
state or other governmental authority or agency of any jurisdiction other than a
State of Qualification; (ii) result in any fee, tax or other governmental charge
under the laws of any jurisdiction or any political subdivisions thereof in
existence on the date hereof, other than a State of Qualification, becoming
payable by the Trustee or (iii) subject the Trustee to personal jurisdiction in
any jurisdiction other than a State of Qualification for causes of action
arising from acts unrelated to the consummation of the transactions by the
Trustee contemplated hereby. In the event that the Trustee does not take any
action because such action may result in the consequences described in the
preceding sentence, the Trustee shall appoint an additional trustee pursuant to
Section 5.5 to proceed with such action.
-----------
6
Section 4.8. Notices from the Coast Guard and Other Persons.
-----------------------------------------------
The Trustee shall notify the Servicer promptly following the Trustee's
receipt of any notice or other communication from the U.S. Coast Guard or any
other Person with respect to a Documented Boat and promptly forward to the
Servicer a copy of any such notice or communication which is in writing.
ARTICLE V
QUALIFICATION, RESIGNATION AND REMOVAL OF TRUSTEE
Section 5.1. Qualification of Trustee.
------------------------
The Trustee shall at all times be a bank or trust company organized under
the laws of the United States or one of the fifty states of the United States or
the District of Columbia, with capital and surplus of at least $50,000,000. The
Trustee shall at all times be a Person which is not prohibited under applicable
law from acting as a holder or transferee of Liens.
Section 5.2. Resignation or Removal of Trustee.
---------------------------------
(a) The Trustee may at any time resign by giving thirty (30) days' prior
written notice to the Initial Beneficiaries and the Collateral Beneficiaries.
Upon receiving the notice of resignation, the Initial Beneficiaries shall
promptly (i) send a notice describing such resignation to the rating agencies
which are then rating any Asset Backed Securities, and (ii) appoint, by written
instrument, a successor Trustee who meets the eligibility requirements set
forth in Section 5.1.
-----------
(b) If at any time:
(i) the Trustee shall cease to be qualified in accordance with
Section 5.1,
-----------
(ii) any representation or warranty made by the Trustee pursuant to
Section 5.6 shall prove to have been untrue in any material respect when
-----------
made, or
(iii) the Trustee shall be legally unable to act, or shall be
adjudged bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then the Trustee shall promptly inform the Initial Beneficiaries and the
Collateral Beneficiaries and the Trustee may be removed upon written notice by
(i) any Initial Beneficiary (with the written consent of all of the Collateral
Beneficiaries) or (ii) any Collateral Beneficiary (with the written consent of
all of the Collateral Beneficiaries). If the Trustee resigns or is removed
under the authority of the immediately preceding sentence, then (i) any Initial
Beneficiary (with the
7
written consent of all of the Collateral Beneficiaries) or (ii) any Collateral
Beneficiary (with the written consent of all of the Collateral Beneficiaries)
shall promptly appoint a successor Trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the Trustee so removed, one
copy to each of the Initial Beneficiaries and the Collateral Beneficiaries and
one copy to the successor Trustee, together with payment of all amounts owed to
the outgoing Trustee. The Initial Beneficiaries shall promptly send a copy of
such instrument to the rating agencies which are then rating any Asset Backed
Securities.
(c) Any resignation or removal of the Trustee and appointment of a
successor Trustee shall not become effective until acceptance of appointment by
the successor Trustee.
Section 5.3. Successor Trustee.
-----------------
Any successor Trustee appointed as provided in Section 5.2 shall execute,
-----------
acknowledge and deliver to the Initial Beneficiaries, the Collateral
Beneficiaries and to its predecessor Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor under this
Agreement, with like effect as if originally named as the Trustee. The
predecessor Trustee shall deliver to the successor Trustee all documents and
statements held by it under this Agreement, and the Initial Beneficiaries, the
Collateral Beneficiaries and the predecessor Trustee shall execute and deliver
such instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor Trustee all such
rights, powers, duties and obligations. No successor Trustee shall accept
appointment as provided in this Section 5.3 unless at the time of such
-----------
acceptance such successor Trustee shall be eligible under the provisions of
Section 5.1.
-----------
Section 5.4. Merger or Consolidation of Trustee.
----------------------------------
Any entity (i) into which the Trustee may be merged or consolidated, (ii)
which may result from any merger, conversion, or consolidation to which the
Trustee shall be a party, or (iii) which may succeed to all or substantially all
of the corporate trust business of the Trustee, which entity, if requested by
either Initial Beneficiary or any Collateral Beneficiary, executes an agreement
of assumption to perform every obligation of the Trustee under this Agreement,
shall be the successor of the Trustee hereunder, provided such entity shall be
--------
eligible pursuant to Section 5.1, without the execution or filing of any
-----------
instrument or any further act on the part of any of the parties hereto (other
than the written consent of the Initial Beneficiaries).
Section 5.5. Appointment of Co-Trustee, Separate Trustee, or Nominee.
-------------------------------------------------------
(a) Notwithstanding any other provision of this Agreement, at any time,
for the purpose of meeting any legal requirements, the Trustee shall have the
power to execute and deliver all instruments to appoint one or more Persons to
act as co-trustee, jointly with the Trustee, or as a separate trustee or
nominee, of all or any part of the Trust, and to vest in such
8
Person, in such capacity and for the benefit of the Initial Beneficiaries or the
Collateral Beneficiaries, Liens on the Documented Boats, or any part thereof,
and, subject to the other provisions of this Section 5.5, such powers, duties,
-----------
obligations, rights and trusts as such Persons may consider necessary or
desirable. No co-trustee, separate trustee, or nominee under this Agreement
shall be required to meet the terms of eligibility as a successor trustee
pursuant to Section 5.1.
-----------
(b) Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred upon and exercised or performed by the
Trustee and such separate trustee and co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be performed,
the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement; and
(iii) the Initial Beneficiaries and the Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Section 5.5. Each separate trustee and co-trustee, upon its acceptance
-----------
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Each
such instrument shall be filed with the Trustee and a copy thereof given to the
Initial Beneficiaries and the Collateral Beneficiaries.
Any separate trustee or co-trustee may at any time appoint the Trustee, its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
dissolve, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts relating to this Agreement and the Liens
shall vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee. Notwithstanding anything
to the contrary in this Agreement, the
appointment of any separate trustee or co-trustee shall not relieve the Trustee
of its obligations and duties under this Agreement.
Section 5.6 Representations and Warranties of Trustee.
-----------------------------------------
The Trustee hereby makes the following representations and warranties as of
the date hereof, and the Trustee shall be deemed to remake the following
representations and warranties upon each execution of a Supplement, on which the
Initial Beneficiaries and the Collateral Beneficiaries may rely:
(a) Organization and Good Standing. The Trustee is a banking corporation
------------------------------
duly organized, validly existing and in good standing under the law of its
jurisdiction of organization.
(b) Power and Authority. The Trustee has full power, authority and right
-------------------
to execute, deliver and perform its obligations under this Agreement, each
Supplement and each Assignment, and has taken all necessary action to authorize
the execution, delivery and performance by it of this Agreement, each Supplement
and each Assignment.
(c) Due Execution. This Agreement has been (and each of the Supplements
-------------
and the Assignments shall be) duly executed and delivered by the Trustee, and
this Agreement is (and upon execution and delivery by the Trustee, each of the
Supplements and the Assignments shall be) a legal, valid and binding instrument
enforceable against the Trustee in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(d) No Conflict. Neither the execution and delivery of this Agreement, any
-----------
Supplement or any Assignment nor the consummation of the transactions
contemplated herein or therein, nor compliance with the provisions hereof or
thereof, shall conflict with or result in a breach of, or constitute a default
(with notice or passage of time or both) under any provision of any law,
governmental rule or regulation, judgment, decree or order binding on the
Trustee or the articles of association or by-laws of the Trustee or any
provision of any mortgage, indenture, contract, agreement or other instrument to
which the Trustee is a party or by which it is bound.
Section 5.7 Trustee's Fees and Expenses.
---------------------------
The Trustee shall be entitled to be paid reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) and reimbursement of all reasonable expenses
(including reasonable attorneys' fees), as have been separately agreed upon in
writing between DFS and the Trustee, for all services rendered by it in the
execution of the Trust, and in the exercise and performance of any of the powers
and duties under this Agreement. The Trustee shall have no right to be paid any
compensation by, or
10
to be reimbursed for any expenses by the Depositor, any Securitization Trust,
any Securitization Trustee or any other Collateral Beneficiary.
ARTICLE VI
PERFECTION OF LIENS
Section 6.1 Perfection of Liens.
-------------------
(a) The Initial Beneficiaries and the Collateral Beneficiaries hereby
authorize and direct the Trustee to enter into Preferred Mortgages, naming the
Trustee as mortgagee, for the benefit initially of the Initial Beneficiaries
and, in connection with a Financing Transaction, for the benefit of the related
Collateral Beneficiaries.
(b) The Trustee shall hold the Liens with respect to Documented Boats
identified in a Supplement for the benefit of the Collateral Beneficiaries
identified in such Supplement and, subject to Section 6.2, not for the benefit
-----------
of any other Person. Without limiting the foregoing, the Documented Boats
pertaining to a particular Financing Transaction (including any Securitization
Trust relating thereto) shall not be deemed to be collateral for any other
Financing Transaction (including any other Securitization Trust). The Initial
Beneficiaries shall not assert any claim which is inconsistent with the
foregoing.
(c) The Initial Beneficiaries shall be responsible, with respect to any
Preferred Mortgage granted directly to the Trustee, for causing such Preferred
Mortgage promptly after execution thereof to be filed and recorded with the
United States Coast Guard National Vessel Documentation Center (the "NVDC") and
----
payment of all relevant fees with respect to the recording thereof. The Initial
Beneficiaries or the Servicer shall be responsible for causing each Assignment
to be filed and recorded with the NVDC promptly after the execution thereof and
for the payment of all relevant fees with respect to the recording thereof, it
being agreed and understood that the parties to an Assignment may amend, modify
or replace such Assignment prior to the same being filed with the NVDC in order
to cause such Assignment to be in recordable form. The Initial Beneficiaries,
the Servicer, the Collateral Beneficiaries and the Trustee shall cooperate with
each other in order to file and record each Preferred Mortgage and each
Assignment in an expeditious manner in accordance with the rules and regulations
of the United States Coast Guard applicable to the filing and recordation of
preferred mortgages, assignments and instruments related thereto.
Section 6.2 Purchase of Boat Receivables.
----------------------------
If the Depositor, DFS, Ganis or the Servicer purchases a Boat Receivable
from a Securitization Trust (or from the Depositor, if applicable), or otherwise
obtains the release of the interest of the Collateral Beneficiaries in a Boat
Receivable, in accordance with the terms of a Financing Transaction, then the
Trustee shall thereafter hold the Lien with respect to the related
11
Documented Boat for the benefit of the Person which in connection with such
purchase or release will own such Boat Receivable.
Section 6.3 Access to Records; Further Assurances.
-------------------------------------
(a) Each Initial Beneficiary, the Servicer and each Collateral
Beneficiary, and any authorized representatives of any Initial Beneficiary, the
Servicer or any Collateral Beneficiary, shall have the right, but not the
obligation, to examine the books of account, records, reports and other papers
of the Trustee relating to this Agreement and make copies and extracts therefrom
at the expense of the Initial Beneficiaries. Without limiting the foregoing,
the Trustee shall promptly furnish to the Initial Beneficiaries, the Servicer
and each Collateral Beneficiary such information with respect to the Agreement
as any Initial Beneficiary, the Servicer or any Collateral Beneficiary may from
time to time reasonably request.
(b) The Trustee agrees that from time to time, at the expense of the
Initial Beneficiaries, it shall promptly execute and deliver all mortgages,
powers of attorney, releases, instruments and documents in execution form, and
take all actions (including (i) entering into amendments, modifications or
replacements of Assignments and Supplements and (ii) making filings with the
U.S. Coast Guard) that any Initial Beneficiary, Collateral Beneficiary, the
Servicer or other Person contemplated by Section 6.2, if applicable, may request
-----------
in writing, (i) to perfect, protect, enforce or more fully evidence the Liens
and Boat Receivables, (ii) to cause any Assignment to be in a recordable form,
or (iii) to enable any Initial Beneficiary, any Collateral Beneficiary, the
Servicer or such other Person to enforce its rights and remedies under this
Agreement or a Supplement, or enforce its rights and remedies or perform its
duties under any documents or agreements relating to a Financing Transaction
(including in connection with sales of Boat Receivables by a Collateral
Beneficiary). Without limiting the foregoing, the Trustee shall cooperate with
the Initial Beneficiaries, the Collateral Beneficiaries and the Servicer in
connection with any legal proceedings to enforce Liens and Boat Receivables.
ARTICLE VII
TERMINATION
Section 7.1 Termination of the Trust.
------------------------
The Trust shall dissolve, windup and terminate upon written notice, to the
effect that such notice is intended to terminate this Agreement, from: (i) the
Initial Beneficiaries to the Trustee (provided that such notice from the Initial
Beneficiaries shall not be given or effective unless and until all of the
outstanding Asset Backed Securities have been paid in full); or (ii) all of the
Collateral Beneficiaries, subject to Section 8.5. In connection with such
-----------
termination, the Trustee agrees that from time to time, at the expense of the
Initial Beneficiaries, it shall promptly execute and deliver all mortgages,
instruments and documents, and take all actions, that may be necessary or
desirable, or that any Initial Beneficiary or Collateral Beneficiary may
request, to evidence such termination.
12
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Amendment.
---------
Any amendment, modification, replacement or waiver of this Agreement or any
Assignment shall require a written agreement among the Initial Beneficiaries,
the Trustee and all of the Collateral Beneficiaries, provided that the
Collateral Beneficiaries need not be party to any such amendment, modification,
replacement or waiver if such amendment, modification, replacement or waiver is
only for the purpose of causing an Assignment to be in a form that may be
recorded with the Coast Guard (e.g., an amendment, modification, replacement or
waiver that involves completing and attaching Schedule 1 to an Assignment). Any
amendment, modifica tion, replacement or waiver of a Supplement shall require a
written agreement among the Initial Beneficiaries, the Trustee and the
particular Collateral Beneficiaries relating to the Financing Transaction
covered by such Supplement. Prior to the Trustee's execution of any amendment,
modification, replacement or waiver of this Agreement, any Supplement or any
Assignment, the Trustee shall be entitled to receive and rely upon an opinion of
counsel (which may be from an employee of an Initial Beneficiary) stating that
the execution of such amendment, replacement, modification or waiver is
authorized or permitted by this Agreement and that all conditions precedent, if
any, to such execution and delivery have been satisfied. The Trustee may, but
shall not be obligated to, enter into any such amendment, modification,
replacement or waiver which adversely affects the Trustee's own rights, duties
or immunities under this Agreement, any Supplement or any Assignment.
The Initial Beneficiaries shall provide prior notice of any such amendment
to any rating agencies then rating the Asset Backed Securities and shall provide
copies of such amendment to such rating agencies promptly following the
execution of any such amendment.
Section 8.2 Governing Law.
-------------
EACH OF THIS AGREEMENT AND EACH ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES, EXCEPT TO THE EXTENT THAT THE PERFECTION (AND THE EFFECT OF
PERFECTION OR NON-PERFECTION) OF THE INTERESTS OF ANY PERSON IN ANY PROPERTY ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF DELAWARE.
Section 8.3 Notices.
-------
All demands, notices and communications under this Agreement shall be in
writing and shall be delivered or mailed by registered or certified first class
United States mail, postage prepaid, return receipt requested; hand delivery;
prepaid courier service; or facsimile transmission, and addressed in each case
as follows: (a) if to DFS, Ganis or the Servicer (so long
13
as the Servicer is DFS), at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attn.: Senior Vice President, telephone (▇▇▇) ▇▇▇-▇▇▇▇, facsimile (949)
729-1535; (b) if to the Trustee, at 1100 N. Market Street, ▇▇▇▇▇▇ Square North,
Wilmington, Delaware 19890, Attn.: Vice President, telephone (▇▇▇) ▇▇▇-▇▇▇▇,
facsimile (▇▇▇) ▇▇▇-▇▇▇▇; and (c) if to a Collateral Beneficiary, at the
applicable address determined in accordance with the related Supplement; or at
such other address as shall be designated by the applicable Person in a written
notice to the other parties to this Agreement or the applicable Supplement.
Section 8.4 Severability of Provisions.
--------------------------
If any one or more of the covenants, agreements, provisions or terms of
this Agreement or any Assignment shall be for any reason whatsoever held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement or such Assignment and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or such Assignment.
Section 8.5 Third Party Beneficiaries.
-------------------------
The Collateral Beneficiaries are intended third party beneficiaries of this
Agreement; provided, however, that a Collateral Beneficiary shall not have any
rights under this Agreement from and after the date on which all of the loans
made or securities (including Asset Backed Securities) issued in connection with
the related Financing Transaction shall have been paid in full.
Section 8.6 Nonpetition Covenant.
--------------------
Notwithstanding any prior termination of this Agreement, the Trustee shall
not (and shall not permit or cause the Trust to) acquiesce, petition or
otherwise invoke or cause the Trust, the Depositor, or any Securitization Trust
to invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Trust, the Depositor, or any
Securitization 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 Trust, the Depositor, or any
Securitization Trust or any substantial part of the property of the Trust, the
Depositor or any Securitization Trust, or ordering the winding up or liquidation
of the affairs of the Trust, the Depositor, or any Securitization Trust.
Section 8.7 Waiver.
------
Each party hereto hereby (a) acknowledges that ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
represents (i) DFS, Ganis and the Depositor in connection with the transactions
contemplated by this Agreement and the Financing Transactions, (ii) Affiliates
of DFS, Ganis and the Depositor in other matters, (iii) underwriters of Asset
Backed Securities (and Affiliates of such underwriters) in other matters, and
(iv) the institutions which are the Trustee, the Securitization Trustees and
14
other Collateral Beneficiaries (or Affiliates of such institutions) in other
transactions, and (b) waives any conflict of interest relating thereto.
Notwithstanding any other provision of this Agreement, ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ is
entitled to rely on this Section.
Section 8.8 Construction.
------------
For all purposes of this Agreement (and the Exhibits hereto), unless the
context otherwise requires or as otherwise expressly provided: (a) all defined
terms shall include both the singular and the plural forms thereof; (b)
reference to any gender shall include all other genders; (c) all references to
words such as "herein," "hereof" and the like shall refer to this Agreement as a
whole and not to any particular Section within this Agreement; (d) the term
"including" means "including without limitation", and other forms of the verb
"to include" have correlative meanings; and (e) the term "or" is intended to
include the term "and/or."
Section 8.9 Separate Entity.
---------------
The Trustee and the Initial Beneficiaries shall in all transactions with
third parties hold the Trust out as a separate entity from the Initial
Beneficiaries and any Affiliate of the Initial Beneficiaries.
Section 8.10 Successors and Assigns.
----------------------
This Agreement and each Assignment shall benefit and bind the successors
and assigns of each party hereto and thereto; provided that this Section shall
not limit the other provisions of this Agreement or any Assignment. The Trustee
acknowledges that the transaction documents relating to a Financing Transaction
may provide for each Initial Beneficiary to transfer its right, title and
interest in, to and under (but none of its obligations under) this Agreement to
the extent relating to the applicable Documented Boats.
Section 8.11 Counterparts.
------------
Each of this Agreement and each Assignment may be executed, acknowledged
and delivered in any number of counterparts, each of such counterparts
constituting an original but all together only one Agreement or Assignment.
Section 8.12 Headings.
--------
The table of contents of this Agreement and the headings or captions
preceding the text of the sections of this Agreement and each Assignment are
intended solely for convenience of reference and shall not constitute a part of
this Agreement or such Assignment nor shall they affect its meaning,
construction or effect.
15
Section 8.13 Entire Agreement.
----------------
This Agreement embodies the entire agreement and understanding among the
parties hereto relating to the subject matter hereof, and supersedes all prior
agreements and understandings with respect thereto.
Section 8.14 Submission to Jurisdiction.
--------------------------
Each of the parties hereto hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Agreement (or any Assignment, any Supplement, any Financing
Transaction or other agreement, instrument or document relating to this
Agreement, any Assignment, any Supplement or any Financing Transaction) 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 8.3 or at such other address notified to the other
parties to this Agreement pursuant thereto; and
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to ▇▇▇ in
any other jurisdiction.
Section 8.15 Servicing of Boat Receivables.
-----------------------------
Notwithstanding any other provision of this Agreement, the Boat Receivables
shall be managed, serviced, administered and collected in accordance with the
terms of the transaction documents applicable to the related Financing
Transaction. Without limiting the generality of the foregoing, in the event of
any conflict or inconsistency between the provisions of a Transfer and Servicing
Agreement and this Agreement with respect to the Servicer and the rights and
obligations of the Servicer, such Transfer and Servicing Agreement shall
control.
[SIGNATURES FOLLOW]
16
IN WITNESS WHEREOF, each of the undersigned have caused this Boat Mortgage
Trust Agreement to be duly executed by their respective officers as of the day
and year first above written.
DEUTSCHE FINANCIAL SERVICES CORPORATION, as
Settlor and Initial Beneficiary
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
GANIS CREDIT CORPORATION, as Settlor and Initial
Beneficiary
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
S-1
EXHIBIT A
DEFINITIONS
"Affiliate" means, with respect to any specified Person, any other Person
---------
that directly or indirectly controls, is controlled by or is under common
control with such specified Person.
"Agreement" means the Boat Mortgage Trust Agreement to which this Exhibit
---------
is attached.
"Asset Backed Securities" means notes or certificates issued by a
-----------------------
Securitization Trust.
"Assignment" means an instrument of assignment substantially in the form of
----------
Exhibit C to the Agreement.
---------
"Boat Receivables" means retail installment sales contracts, loan contracts
----------------
or notes relating to Documented Boats.
"Collateral Beneficiary" means, with respect to a Financing Transaction,
----------------------
any Person identified as a "Collateral Beneficiary" in the Supplement relating
thereto.
"Depositor" means any special purpose corporation or other Person or
---------
Persons created for the purpose of acquiring Boat Receivables and transferring
Boat Receivables to one or more Securitization Trusts. Deutsche Recreational
Asset Funding Corporation, a Nevada corporation, is the initial Depositor.
"DFS" is defined in the Preamble.
---
"Documented Boats" means boats that are or were financed (directly or
----------------
indirectly) by DFS or Ganis that are documented (or are eligible for
documentation) under Chapter 121 of Title 46 of the United States Code.
"Financing Transaction" means a transaction, including a Securitization
---------------------
Transaction, pursuant to which one or more Persons provides financing to DFS,
Ganis, a Depositor, or a Securitization Trust, directly or indirectly, with
respect to Boat Receivables. The term "Financing Transaction" includes one or
more "whole loan" sales of Boat Receivables by DFS or Ganis to one or more banks
or other Persons on a "servicing retained" basis.
"Ganis" is defined in the Preamble.
-----
"Initial Beneficiaries" is defined in the Preamble.
---------------------
A-1
"Lien" means a lien, mortgage or security interest in a Documented Boat,
----
including the lien, mortgage or security interest granted by a Preferred
Mortgage.
"Person" means any individual, corporation, partnership, joint venture,
------
association, joint stock company, trust, bank, limited liability company, trust
company, estate (including any beneficiaries thereof), unincorporated
organizations or government or any agency or political subdivision thereof.
"Preamble" means the first paragraph of the Agreement.
--------
"Preferred Mortgage" means a mortgage covering a Documented Boat which is a
------------------
"preferred mortgage" within the meaning of Section 31322 of Title 46 of the
United States Code.
"Securitization Transaction" means a transaction in which certain
--------------------------
receivables (including Boat Receivables) are transferred directly or indirectly
by an Initial Beneficiary to the Depositor and by the Depositor to a
Securitization Trust.
"Securitization Trust" means a trust (which may be a business trust or a
--------------------
common law trust) established to acquire and hold certain receivables (including
Boat Receivables) and to issue notes or certificates.
"Securitization Trustees" means, collectively, with respect to any
-----------------------
Securitization Transaction, the owner trustee and the indenture trustee (or in
the case of a Securitization Trust which is a grantor trust, the trustee under
the applicable pooling and servicing agreement) appointed from time to time in
connection with the issuance of the related Asset Backed Securities. The
initial Securitization Trustees with respect to a Securitization Transaction
shall be identified in the related Supplement.
"Servicer" means the Person acting as a "Servicer" of the Boat Receivables
--------
financed in any Financing Transaction.
"Settlors" is defined in the Preamble.
--------
"State of Qualification" is defined in Section 4.7 of the Agreement.
---------------------- -----------
"Supplement" means an agreement substantially in the form of Exhibit B to
---------- ---------
the Agreement.
"Transfer and Servicing Agreement" means a Transfer and Servicing Agreement
--------------------------------
among a Securitization Trust, a Depositor, and DFS, as Servicer, as the same may
be amended, amended and restated or otherwise modified from time to time.
"Trust" is defined in Section 1.1 of the Agreement.
----- -----------
"Trustee" is defined in the Preamble.
-------
A-2
EXHIBIT B
FORM OF SUPPLEMENT
Supplement (this "Supplement"), dated as of [ ] among Deutsche Financial
----------
Services Corporation, a Nevada corporation, ("DFS"), Ganis Credit Corporation, a
---
Delaware corporation ("Ganis"), Wilmington Trust Company, a Delaware banking
-----
corporation, as trustee (the "Trustee"), and [[ ], as owner trustee (the "Owner
------- -----
Trustee"), and [ ], as indenture trustee (the "Indenture Trustee")].
------- -----------------
WHEREAS, pursuant to the Boat Mortgage Trust Agreement dated as of May 1,
1999 (as amended, amended and restated or otherwise modified from time to time
in accordance with its terms, the "Boat Mortgage Trust Agreement") among DFS,
-----------------------------
Ganis and the Trustee, the Trustee holds Liens in Documented Boats; and
[WHEREAS, Boat Receivables relating to Documented Boats are being
transferred into a Securitization Trust to be known as "Distribution Financial
Services Marine Trust [199_- ]" (the "Securitization Trust") pursuant to a
--------------------
Transfer and Servicing Agreement dated as of [ ] (the "Specified Transfer
------------------
and Servicing Agreement") among the Securitization Trust, DFS and Deutsche
-----------------------
Recreational Asset Funding Corporation.] [Describe other Financing Transaction,
if applicable.]
Section 1. Definitions. Capitalized terms used and not otherwise
-----------
defined herein are used as defined in the Boat Mortgage Trust Agreement.
Section 2. Liens Transferred; Collateral Beneficiaries.
-------------------------------------------
(a) [The "Schedule of Receivables" referred to in the Specified
Transfer and Servicing Agreement lists Boat Receivables secured by Documented
Boats as well as receivables which are not secured by Documented Boats].
[Alternative: Schedule 1 attached hereto lists the Documented Boats relating to
----------
Boat Receivables being [transferred into the Securitization Trust] [financed in
such Financing Transaction]]. Subject to the terms of the Boat Mortgage Trust
Agreement, the Trustee agrees to hold the Liens relating to such Documented
Boats for the benefit of the Collateral Beneficiaries identified in Annex 1
-------
attached hereto.
(b) For the avoidance of doubt, Collateral Beneficiaries with respect
to [Financing Transactions] [Securitization Trusts] other than [the Financing
Transaction] [Securitization Trust] identified in the recitals hereto shall have
no interest in the Liens in the Documented Boats referred to in Section 2(a) of
------------
this Supplement.
B-1
Section 3. Miscellaneous.
-------------
(a) The Collateral Beneficiaries agree to comply with the terms of
the Boat Mortgage Trust Agreement as if they were parties thereto.
(b) Sections 6.3, 8.2, 8.4, 8.7, 8.8, 8.10, 8.11, 8.12 and 8.14 of
the Boat Mortgage Trust Agreement are hereby incorporated by reference in this
Supplement as if set forth in full herein, with the references in such Sections
to the Boat Mortgage Trust Agreement applying with equal force instead to this
Supplement.
(c) All demands, notices and communications under this Supplement
shall be in writing and shall be delivered or mailed by registered or certified
first class United States mail, postage prepaid, return receipt requested; hand
delivery; prepaid courier service; or facsimile transmission, and addressed in
each case as follows: (a) if to DFS, Ganis or the Servicer (so long as the
Servicer is DFS), at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attn.: Senior Vice President, telephone (▇▇▇) ▇▇▇-▇▇▇▇, facsimile (949) 729-
1535; (b) if to the Trustee, at 1100 N. Market Street, ▇▇▇▇▇▇ Square North,
Wilmington, Delaware 19890, Attn.: Vice President, telephone (▇▇▇) ▇▇▇-▇▇▇▇,
facsimile (▇▇▇) ▇▇▇-▇▇▇▇; [(c) if to the Securitization Trust or the Owner
Trustee, at [ ]; and if to the Indenture Trustee, at [
];] [identify different Collateral Beneficiary, if applicable;] or at such other
address as shall be designated by the applicable Person in a written notice to
the other parties to this Supplement.
[SIGNATURES FOLLOW]
B-2
IN WITNESS WHEREOF, each of the undersigned have caused this Supplement to
be duly executed by their respective officers as of the day and year first above
written.
DEUTSCHE FINANCIAL SERVICES
CORPORATION, as Settlor and Initial Beneficiary
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
GANIS CREDIT CORPORATION, as Settlor and
Initial Beneficiary
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
WILMINGTON TRUST COMPANY, as Trustee
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
B-3
[____________________________________________],
not individually but solely in its capacity
as Owner Trustee
By:___________________________________________
Name:_________________________________________
Title:________________________________________
[____________________________________________],
not individually but solely in its capacity
as Indenture Trustee
By:___________________________________________
Name:_________________________________________
Title:________________________________________
B-4
[SCHEDULE 1
to Supplement]
FINANCED BOATS
Filing Data Recording Data
------------- --------------
Vessel Name Official No. Mortgagor Mortgagee Date Time Book Page
------------- ------------ --------- --------- ---- ---- ---- ----
ANNEX 1
to Supplement
COLLATERAL BENEFICIARIES
[Securitization Trust]
--------------------
[Distribution Financial Services Marine Trust [199_ - ]]
[Securitization Trustees]
-----------------------
[ ], as Owner Trustee
[ ], as Indenture Trustee
EXHIBIT C
FORM OF ASSIGNMENT
Assignment (this "Assignment"), dated as of [ ],
----------
between [Deutsche Financial Services Corporation, a Nevada corporation
("Assignor"),] [Ganis Credit Corporation, a Delaware corporation ("Assignor"),]
---------- --------
and Wilmington Trust Company, a Delaware banking corporation, as trustee (the
"Trustee" or "Assignee") under that certain Boat Mortgage Trust Agreement, dated
-------- --------
as of May 1, 1999, among Deutsche Financial Services Corporation, Ganis Credit
Corporation and the Trustee, as such Boat Mortgage Trust Agreement may be
amended, amended and restated or otherwise modified from time to time.
Section 1. Names and Addresses of Parties.
------------------------------
a. The name and address of the Assignor is as follows:
______________________________
______________________________
______________________________
______________________________
b. The name and address of the Assignee is as follows:
Mortgagee: Wilmington Trust Company, as Trustee
(Servicer: Deutsche Financial Services Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ 92660)
The address of the Mortgagee is: 1100 N. Market Street,
▇▇▇▇▇▇ Square North, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Section 2. Interest in Vessels and Mortgages. The Assignor is the
---------------------------------
mortgagee under preferred mortgages (the "Mortgages") covering one hundred
---------
percent (100%) of [the vessels identified on Schedule 1 hereto] [the "Documented
Boats" (as defined in the Boat Mortgage Trust Agreement referred to above)
securing the [DFS/Transferor] Receivables listed on the "Schedule of
Receivables" referred to in the Transfer and Servicing Agreement dated as of [
] among Distribution Financial Services Marine Trust [ ], Deutsche Recreational
Asset Funding Corporation and Deutsche Financial Services Corporation. The
"[DFS/Transferor] Receivables" are defined in
C-1
such Transfer and Servicing Agreement.] The Assignor is the holder of a one
hundred percent (100%) interest in the Mortgages.
Section 3. Assignment. For good and valuable consideration, the
----------
receipt and adequacy of which are hereby acknowledged, the Assignor hereby
sells, transfers, assigns, sets over and conveys to the Assignee one hundred
percent (100%) of the Assignor's interest in, to and under the Mortgages.
C-2
IN WITNESS WHEREOF, each of the undersigned have caused this Assignment to
be duly executed by their respective officers as of the day and year first above
written.
[DEUTSCHE FINANCIAL SERVICES
CORPORATION, as Assignor]
By:________________________________
Name:______________________________
Title:_____________________________
By:________________________________
Name:______________________________
Title:_____________________________
[GANIS CREDIT CORPORATION,
as Assignor]
By:________________________________
Name:______________________________
Title:_____________________________
By:________________________________
Name:______________________________
Title:_____________________________
WILMINGTON TRUST COMPANY, as
Trustee and as Assignee
By:________________________________
Name:______________________________
Title:_____________________________
C-3
STATE OF ____________ )
) SS.
COUNTY OF __________ )
On this ___ day of _________, ______, before me personally came
____________, to me personally known, who being by me duly sworn, did depose and
say that (s)he is ____________ of _____________, a _____________ corporation,
that the foregoing instrument was signed in behalf of said corporation by
authority of its Board of Directors and said __________, acknowledged said
instrument to be the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal at my office in said County and State the day and year last above written.
My term expires _______, _____.
_______________________
Notary Public
(Seal)
C-4
STATE OF ____________ )
) SS.
COUNTY OF __________ )
On this ___ day of _________, ______, before me personally came
____________, to me personally known, who being by me duly sworn, did depose and
say that (s)he is ______________ of _____________, a _____________ corporation,
that the foregoing instrument was signed in behalf of said corporation by
authority of its Board of Directors and said __________, acknowledged said
instrument to be the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal at my office in said County and State the day and year last above written.
My term expires _______, _____.
_______________________
Notary Public
(Seal)
C-5
STATE OF ____________ )
) SS.
COUNTY OF __________ )
On this ___ day of _________, ______, before me personally came
____________, to me personally known, who being by me duly sworn, did depose and
say that (s)he is ______________ of _____________, a _____________ corporation,
that the foregoing instrument was signed in behalf of said corporation by
authority of its Board of Directors and said __________, acknowledged said
instrument to be the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal at my office in said County and State the day and year last above written.
My term expires _______, _____.
_______________________
Notary Public
(Seal)
C-6
[SCHEDULE 1
to Assignment]
FINANCED BOATS
Filing Data Recording Data
----------- --------------
Vessel Name Official No. Mortgagor Mortgagee Date Time Book Page
------------- ------------ --------- --------- ---- ---- ---- ----
