EXHIBIT 1.1
$_____________
DEUTSCHE FLOORPLAN RECEIVABLES MASTER TRUST
$_________ Floating Rate Asset Backed Certificates, Series 1996-1, Class A
$_________ Floating Rate Asset Backed Certificates, Series 1996-1, Class B
UNDERWRITING AGREEMENT
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Dated October __, 1996
DEUTSCHE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.
as Representative of the
several Underwriters
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Section 1. Introductory. Deutsche Floorplan Receivables, L.P., a Delaware
limited partnership ("Deutsche FRLP"), proposes to sell $____________ Floating
Rate Asset Backed Certificates, Series 1996-1, Class A and $____________
Floating Rate Asset Backed Certificates, Series 1996-1, Class B (the "Offered
Certificates") of the Deutsche Floorplan Receivables Master Trust (the "Trust").
Each Offered Certificate will represent a fractional undivided interest in the
Trust. The assets of the Trust will include, among other things, a pool of
receivables (collectively, the "Receivables") transferred and sold by Deutsche
Financial Services Corporation, a Nevada corporation (together with its
successors in interest, "DFS"), and Deutsche Business Services Corporation, a
Missouri corporation (together with its successors in interest, "Deutsche BSC")
to Deutsche FRLP pursuant to a Receivables Contribution and Sale Agreement (as
supplemented and amended from time to time, the "Receivables Contribution and
Sale Agreement") amended and restated as of March 1, 1994 among DFS, Deutsche
BSC and Deutsche FRLP, and subsequently transferred and sold by Deutsche FRLP to
the Trust pursuant to a Pooling and Servicing Agreement (as supplemented and
amended from time to time, the "P&S"), amended and restated as of October 1,
1996, among Deutsche FRLP, as the Seller, DFS, as the Servicer, and Chase
Manhattan Bank, as trustee (the "Trustee"). The Offered Certificates will be
issued pursuant to the P&S and the Series 1996-1 Supplement to the P&S to be
dated as of October 1, 1996 (the "Supplement"), among Deutsche FRLP, DFS and the
Trustee. The P&S and the Supplement are collectively referred to as the
"Pooling and Servicing Agreement". In addition, $____________ Floating Rate
Asset Backed Certificates, Series 1996-1, Class C (the "Class C Certificates"
and, together with the Offered Certificates, the "Certificates"), will be issued
pursuant to the Pooling and Servicing Agreement. The
Receivables Contribution and Sale Agreement and the Pooling and Servicing
Agreement are collectively referred to as the "Designated Agreements".
Deutsche FRLP has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-10943), including
the related prospectus, for the registration under the Securities Act of 1933,
as amended (the "Act"), of the Offered Certificates, in the form heretofore
delivered to the Underwriters. The registration statement (including the
prospectus constituting a part thereof and the information, if any, deemed to be
part thereof pursuant to Rule 430A(b) of the rules and regulations of the
Commission under the Act (the "1933 Act Regulations")) in the form in which it
became effective under the Act on October __, 1996 (the "Effective Date"),
including the exhibits thereto, is referred to herein as the "Registration
Statement", and the prospectus dated October __, 1996 in the form in which it
was most recently filed with the Commission (including the information, if any,
deemed to be part thereof pursuant to Rule 430A(b) of the 1933 Act Regulations)
is referred to herein as the "Prospectus", except that if any revised prospectus
shall be provided to you by Deutsche FRLP for use in connection with the
offering of the Offered Certificates which differs from the Prospectus on file
at the Commission at the time the Registration Statement becomes effective
(whether or not such revised prospectus is required to be filed by Deutsche FRLP
pursuant to Rule 424(b) of the 1933 Act Regulations), the term "Prospectus"
shall refer to such revised prospectus from and after the time it is first
provided to you for such use.
Capitalized terms used herein and not otherwise defined shall have the
meanings given them in the Pooling and Servicing Agreement.
Section 2. Representations, Warranties and Covenants of DFS and Deutsche
FRLP. Each of DFS and Deutsche FRLP, as applicable, represents and warrants to,
and agrees with, Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/▇.▇. ▇▇▇▇▇▇▇▇ Inc., ("Deutsche ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇") and each of the other Underwriters named in Schedule A hereto
(collectively, the "Underwriters", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Deutsche
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is acting as representative (in such capacity, Deutsche ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ shall hereinafter be referred to as the "Representative"), as of the
date hereof that:
(i) On the Effective Date and on the date hereof, the Registration
Statement did and will comply, in all material respects, with the
requirements of the Act and the 1933 Act Regulations, and did not and will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, at the date hereof
(unless the term "Prospectus" refers to a prospectus which has been
provided to you by Deutsche FRLP which differs from the Prospectus on file
at the Commission at the time the Registration Statement becomes effective,
in which case at the time it is first provided to you for such use) and at
the Closing Date (as defined herein), will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that these
representations and warranties shall not apply to any statement or omission
made in reliance upon and in conformity with information furnished in
writing to Deutsche FRLP by the Representative expressly for use in the
Registration Statement or the Prospectus.
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(ii) DFS is a corporation duly incorporated, validly existing and
in good standing under the laws of the state of its incorporation, and is
duly qualified to transact business and is in good standing in each
jurisdiction in the United States of America in which the conduct of its
business or the ownership of its property requires such qualification, with
corporate power to own, lease and operate its property and conduct its
business as it is currently conducted.
(iii) Deutsche FRLP is a limited partnership duly organized,
validly existing and in good standing under the laws of the state of its
organization, and is duly qualified to transact business and is in good
standing in each jurisdiction in the United States of America in which the
conduct of its business or the ownership of its property requires such
qualification.
(iv) Each of DFS and Deutsche FRLP has the requisite power to
execute and deliver each of the Pooling and Servicing Agreement and this
Agreement and to perform their respective obligations under the Designated
Agreements and hereunder.
(v) Each of the Pooling and Servicing Agreement and this Agreement
has been duly and validly authorized, executed and delivered by each of DFS
and Deutsche FRLP, and each of the Designated Agreements constitutes the
valid, legal and binding obligation of each of DFS and Deutsche FRLP,
enforceable against each of DFS and Deutsche FRLP in accordance with its
terms.
(vi) The direction by Deutsche FRLP to the Trustee to authenticate
and deliver the Offered Certificates has been duly authorized by Deutsche
FRLP, and as of the Closing Date, the Offered Certificates will be duly and
validly authorized, and, when duly and validly executed by Deutsche FRLP
and authenticated by the Trustee and delivered to Deutsche FRLP in
accordance with the Pooling and Servicing Agreement, and following delivery
to and payment therefor by the Underwriters as provided herein, will be
validly issued and outstanding and entitled to the benefits of the Pooling
and Servicing Agreement.
(vii) The Offered Certificates will have been duly and validly
executed and authenticated by the Trustee in accordance with the Pooling
and Servicing Agreement on or before the Closing Date referred to below.
(viii) Neither the execution and delivery by DFS or Deutsche FRLP
of the Pooling and Servicing Agreement or of this Agreement nor the
consummation by DFS or Deutsche FRLP of the transactions contemplated in
the Designated Agreements or herein, nor the issuance of the Offered
Certificates by the Trust or the public offering thereof as contemplated in
the Prospectus, will conflict in any material respect with or result in a
material breach of, or constitute a material default (with notice or
passage of time or both) under, or result in the imposition of any lien,
pledge, charge, encumbrance, adverse claim or other security interest of
any other person (collectively, "Liens") upon any of the property or assets
of DFS or Deutsche FRLP (except as required or permitted pursuant thereto
or hereto), pursuant to any material mortgage, indenture, loan agreement,
contract or other instrument to which DFS or Deutsche FRLP is party or by
which either of them is bound, nor will such action result in any violation
of any provisions of any applicable law, administrative regulation or
administrative or court decree, the certificate of incorporation or by-laws
of DFS or the
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partnership agreement of Deutsche FRLP. Neither DFS nor Deutsche FRLP is
in violation of its certificate of incorporation or partnership agreement,
respectively, in default in any material respect in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease, pooling and servicing agreement or other instrument to which it is a
party or by which it may be bound, or to which any material portion of its
property or assets is subject.
(ix) No legal or governmental proceedings are pending to which DFS
or Deutsche FRLP is a party or of which any property of DFS or Deutsche
FRLP is the subject, which if determined adversely to DFS or Deutsche FRLP
would, individually or in the aggregate, have a material adverse effect on
the financial position, shareholders' equity or results of operations of
DFS or Deutsche FRLP; and to the best of DFS's or Deutsche FRLP's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(x) No consent, approval, authorization or order of, or
registration, filing or declaration with, any court or governmental agency
or body is required in connection with (i) the execution and delivery by
DFS or Deutsche FRLP of the Pooling and Servicing Agreement or this
Agreement or the performance by DFS or Deutsche FRLP of any Designated
Agreement or this Agreement or (ii) the offer, sale or delivery of the
Offered Certificates, except such as shall have been obtained or made, as
the case may be, or will be obtained or made, as the case may be, prior to
the Closing Date, or will not materially adversely affect the ability of
DFS or Deutsche FRLP to perform its obligations under any Designated
Agreement or this Agreement.
(xi) Each of DFS and Deutsche FRLP possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct the
business now conducted by it and as described in the Prospectus, except to
the extent that the failure to have such licenses, certificates,
authorities or permits does not have a material adverse effect on the
Offered Certificates or the financial condition of DFS or Deutsche FRLP,
and neither DFS nor Deutsche FRLP has received any notice of proceedings
relating to the revocation or modification of any such license,
certificate, authority or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of its business, operations or financial
condition.
(xii) On the Closing Date, Deutsche FRLP (i) will have good and
marketable title to the Receivables being transferred by it to the Trustee
pursuant thereto, free and clear of any Lien, except to the extent
permitted in the Pooling and Servicing Agreement, (ii) will not have
assigned to any person any of its right, title or interest in such
Receivables or in the Pooling and Servicing Agreement and (iii) will have
the power and authority to sell the Receivables to the Trustee, and upon
execution and delivery of the Pooling and Servicing Agreement by the
Trustee, the Trustee will have good and marketable title thereto, in each
case free of Liens other than any Lien created by an Underwriter.
(xiii) The properties and businesses of each of DFS and Deutsche
FRLP conform, in all material respects, to the descriptions thereof
contained in the Prospectus.
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Section 3. Purchase, Sale and Delivery of Offered Certificates. (a) On
the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, Deutsche FRLP agrees
to sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from Deutsche FRLP, on October __,
1996, or on such other date no later than seven business days thereafter as
shall be mutually agreed upon by Deutsche FRLP and the Representative (the
"Closing Date") the principal amount of the Offered Certificates set forth in
Schedule A opposite the name of such Underwriter. The Offered Certificates are
to be purchased at a purchase price equal to _____% of the aggregate principal
amount thereof.
(b) Against payment of the purchase price in same day funds drawn to the
order of Deutsche FRLP, Deutsche FRLP will deliver the Offered Certificates to
the Underwriters at the offices of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on the Closing Date. The Offered Certificates
to be so delivered will be initially represented by one or more Offered
Certificates registered in the name of Cede & Co., the nominee of The Depository
Trust Company ("DTC"). The interests of beneficial owners of the Offered
Certificates will be represented by book entries on the records of DTC and
participating members thereof. Definitive Certificates will be available only
under limited circumstances.
Section 4. Public Offering of the Certificates. It is understood by the
parties hereto that, after the Registration Statement becomes effective, the
Underwriters propose to offer the Offered Certificates for sale to the public
(which may include selected dealers), as set forth in the Prospectus.
Section 5. Covenants of DFS and Deutsche FRLP. Each of DFS and Deutsche
FRLP jointly and severally covenants and agrees with each Underwriter:
(a) If required, to file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b) not later than the time specified
therein. DFS and/or Deutsche FRLP will advise the Underwriters promptly of
any such filing pursuant to Rule 424(b).
(b) To make no amendment or any supplement to the Registration
Statement or the Prospectus as amended or supplemented, without furnishing
the Representative with a copy of the proposed form thereof and providing
the Representative with a reasonable opportunity to review the same and not
to file any such amendment or supplement to which the Representative shall
reasonably object; and to advise the Representative, promptly after it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus as amended or supplemented or any amended Prospectus has been
filed or mailed for filing, of the issuance of any stop order by the
Commission, of the suspension of the qualification of the Offered
Certificates for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the Registration
Statement or the Prospectus as amended or supplemented or for additional
information; and, in the event of the issuance of any such stop order or of
any order preventing or suspending the use of any Prospectus relating to
the Offered Certificates or suspending any such qualification, promptly to
use its best efforts to obtain its withdrawal.
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(c) Promptly from time to time to take such action as the
Representative may reasonably request in order to qualify the Offered
Certificates for offering and sale under the securities laws of such states
as the Representative may request and to continue such qualifications in
effect so long as necessary under such laws for the distribution of such
Offered Certificates; provided, that in connection therewith neither DFS
nor Deutsche FRLP shall be required to qualify as a foreign corporation or
partnership, respectively, to do business or to file a general consent to
service of process in any jurisdiction.
(d) To furnish the Representative with copies of the Registration
Statement (including exhibits) and copies of the Prospectus as amended or
supplemented in such quantities as the Representative may from time to time
reasonably request; and if the delivery of a Prospectus shall be at the
time required by law in connection with sales of any Offered Certificates,
either (i) any event shall have occurred as a result of which the
Prospectus would include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or (ii) for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus as amended or
supplemented, to notify the Representative and to prepare and furnish to
the Representative as the Representative may from time to time reasonably
request an amendment or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance.
(e) To make generally available to Certificateholders as soon as
practicable after the Effective Date of the Registration Statement (as such
date is defined in Rule 158(c) under the Act), an earnings statement of
Deutsche FRLP complying with Rule 158 under the Act and covering a period
of at least twelve consecutive months beginning after such Effective Date.
(f) To furnish to each Underwriter copies of the Registration
Statement (one of which will be signed and will include all exhibits), each
related preliminary prospectus, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as such Underwriter reasonably requests.
(g) So long as any of the Offered Certificates are outstanding, to
furnish each Underwriter copies of all reports or other communications
(financial or other) furnished to Certificateholders, and to deliver to the
Underwriters during such same period (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed with
the Commission and (ii) such additional information concerning the business
and financial condition of Deutsche FRLP as such Underwriter may from time
to time reasonably request.
(h) To pay all expenses incident to the performance of the obligations
under this Agreement, including:
(i) the word processing, printing and filing of the
Registration Statement as originally filed and of each amendment
thereto;
(ii) the reproduction of this Agreement;
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(iii) the preparation, printing, issuance and delivery of the
Offered Certificates to the Underwriters;
(iv) the fees and disbursements of counsel and accountants for
DFS and/or Deutsche FRLP;
(v) the qualification of the Offered Certificates under
securities laws in accordance with the provisions of Section 5(c)
hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey;
(vi) if requested by the Representative, the determination of
the eligibility of the Offered Certificates for investment and the
reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the
Legal Investment Memorandum;
(vii) the printing and delivery to the Underwriters of copies
of the Registration Statement as originally filed and of each
amendment thereto, of the preliminary prospectuses, and of the
Prospectus and any amendments or supplements thereto;
(viii) the printing and delivery to the Underwriters of
copies of the Blue Sky Survey and, if requested by the Representative,
the Legal Investment Memorandum, if any;
(ix) the fees of ▇▇▇▇▇'▇ Investors Service, Inc., Standard &
Poor's Ratings Services and Fitch Investors Service Inc. for rating
the Offered Certificates; and
(x) the fees and expenses of the Trustee and its counsel.
If the sale of the Offered Certificates is not consummated by reason of any
failure, refusal or inability on the part of DFS or Deutsche FRLP to
perform any agreement on its part to be performed, or because any condition
of the Underwriters' obligations hereunder required to be fulfilled shall
not have been fulfilled (other than as a result of any breach or default by
the Underwriters), each of DFS and Deutsche FRLP shall jointly and
severally be obligated to reimburse the Underwriters for all out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for
the Underwriters. For purposes of the preceding sentence, the conditions
in clauses (ii) and (iii) of Section 6(d) shall not be conditions required
to be fulfilled by DFS or Deutsche FRLP.
(i) For a period from the date of this Agreement until the retirement
of the Offered Certificates, or until such time as each Underwriter shall
cease to maintain a secondary market in the Offered Certificates, whichever
occurs first, to deliver to each Underwriter the annual statements of
compliance, the Annual Servicer's Certificate and the annual independent
certified public accountants' servicing reports furnished to the Trustee
pursuant to Section 3.5 and Section 3.6, respectively, of the Pooling and
Servicing Agreement
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and the monthly Distribution Date Statement pursuant to Section 5.2(a) of
the Series 1996-1 Supplement as soon as such statements and reports are
furnished to the Trustee.
(j) From and after the Closing Date, not to take any action
inconsistent with the Trust's ownership of the Receivables other than as
permitted by the Pooling and Servicing Agreement.
(k) To the extent, if any, that the rating provided with respect to
the Offered Certificates by the rating agency or agencies that initially
rate the Offered Certificates is conditional upon the furnishing of
documents or the taking of any other actions by DFS and/or Deutsche FRLP,
to furnish such documents and take any such other actions.
Section 6. Conditions Precedent to the Obligations of the Underwriter.
The obligation of the Underwriters to purchase and pay for the Offered
Certificates is subject to the accuracy of the representations and warranties on
the part of DFS and Deutsche FRLP herein, to the accuracy of the statements of
officers of DFS and Deutsche FRLP made pursuant to the provisions hereof, to the
performance by DFS and Deutsche FRLP of its obligations hereunder and to the
following additional conditions precedent:
(a) The Registration Statement shall have become effective not later
than 4:00 p.m., New York time, on the day following the date of this
Agreement or such later date as shall have been consented to by the
Representative; and prior to the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of DFS or Deutsche FRLP, shall be contemplated by the Commission.
If Deutsche FRLP has elected to rely upon Rule 430A of the 1933 Act
Regulations, the price of the Offered Certificates and any price-related
information previously omitted from the effective Registration Statement
pursuant to such Rule 430A shall have been transmitted to the Commission
for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the
prescribed time period, and prior to the Closing Date the Company shall
have provided evidence satisfactory to the Representative of such timely
filing, or a post-effective amendment providing such information shall have
been promptly filed and declared effective in accordance with the
requirements of Rule 430A of the 1933 Act Regulations.
(b) Each of DFS and Deutsche FRLP shall have delivered to the
Representative a certificate, dated the Closing Date, signed by its
president, a senior vice president or a vice president to the effect that
the signer of such certificate has carefully examined the Registration
Statement, the Prospectus, each Designated Agreement and this Agreement and
that:
(i) the representations and warranties of DFS and/or Deutsche
FRLP, as the case may be, in each Designated Agreement and this
Agreement are true and correct in all material respects at and as of
the Closing Date with the same effect as if made on the Closing Date;
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(ii) each of DFS and Deutsche FRLP, as the case may be, has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been initiated or, to DFS's or Deutsche FRLP's knowledge,
threatened as of the Closing Date; and
(iv) nothing has come to such person's attention that would
lead such person to believe that the Prospectus contains any untrue
statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the
Prospectus as amended or supplemented, there shall not have occurred any
material adverse change or any development involving a prospective material
adverse change, in or affecting particularly the business or assets of the
Trust, Deutsche FRLP or DFS or any material adverse change in the financial
position or results or operations of the Trust, Deutsche FRLP or DFS
otherwise than as set forth or contemplated in the Prospectus which in any
such case makes it impracticable to inadvisable in the Representative's
reasonable judgment to proceed with the public offering or the delivery of
the Offered Certificates on the terms and in the manner contemplated in the
Prospectus as amended or supplemented.
(d) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business, financial
condition or properties of DFS or Deutsche FRLP which, in the
Representative's judgment, materially impairs the investment quality of the
Offered Certificates, (ii) any material adverse change in the financial
markets in the United States or any outbreak of hostilities or other
calamity or crisis, the effect of which is such as to make it, in the
judgment of the Representative, impracticable to market the Offered
Certificates or to enforce contracts for the sale of the Offered
Certificates, (iii) the suspension of trading generally by either the
American Stock Exchange or the New York Stock Exchange, or the
establishment of minimum or maximum prices or ranges of prices, by either
of such exchanges or by order of the Commission or any other governmental
authority, or any banking moratorium declared by Federal, Missouri or New
York authorities or (iv) any event that would constitute a default under
this Agreement or default in the performance of DFS's or Deutsche FRLP's
obligations under any Designated Agreement or which, with the passage of
time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for DFS and Deutsche FRLP, an opinion,
dated the Closing Date and addressed to the Underwriters and satisfactory
in form and substance to the Representative and to counsel to the
Representative, with respect to the matters set forth in Exhibit A hereto.
(f) The Representative shall have received from ▇▇▇▇▇ ▇▇▇▇, special
counsel for Deutsche FRLP, an opinion, dated the Closing Date and
satisfactory in form and substance to the Representative and to counsel to
the Underwriters, to the effect that the information in the
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Prospectus under "State and Local Tax Consequences," to the extent it
constitutes matters of Missouri law or legal conclusions with respect
thereto, has been reviewed by such counsel and is correct in all material
respects and the opinions (addressed to the Underwriters) dated the Closing
Date and required by any rating agency.
(g) The Representative shall have received from ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇,
special counsel to DFS and Deutsche FRLP, an opinion, dated the Closing
Date, addressed to the Underwriters and satisfactory in form and substance
to the Representative and to counsel to the Underwriters, relating to
certain insolvency and bankruptcy matters and federal income tax matters.
(h) The Representative shall have received from Pryor, Cashman,
▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Trustee, an opinion, dated the Closing
Date and addressed to the Underwriters, DFS and Deutsche FRLP and
satisfactory in form and substance to the Representative and to counsel to
the Underwriters, in substantially the form of Exhibit B hereto.
(i) The Representative shall have received an officer's certificate
dated the Closing Date of the chairman of the board, the president, an
executive vice president or the treasurer of the Trustee in which such
officer shall state that, to the best of his/her knowledge after reasonable
investigation, the representations and warranties of the Trustee contained
in the Pooling and Servicing Agreement are true and correct in all material
respects, and that the Trustee has complied in all material respects with
all agreements and satisfied all conditions on its part to be performed or
satisfied under the Pooling and Servicing Agreement at or prior to the
Closing Date.
(j) The Representative shall have received a copy of a ratings letter
confirming that the Class A Certificates have been rated in the highest
rating category by at least one of ▇▇▇▇▇'▇ Investors Service, Inc.,
Standard & Poor's Ratings Services and Fitch Investors Service Inc., and
such ratings shall not have been reduced or withdrawn and that the Class B
Certificates have been rated in one of the three highest rating categories
by at least one of ▇▇▇▇▇'▇ Investors Service, Inc., Standard & Poor's
Ratings Services and Fitch Investors Service Inc., and such ratings shall
not have been reduced or withdrawn.
(k) The Trustee shall have furnished to the Representative a
certificate of the Trustee, signed by one or more duly authorized officers
of the Trustee, dated the Closing Date, as to the due acceptance of the
Pooling and Servicing Agreement by the Trustee and the due execution and
delivery of the Offered Certificates by the Trustee thereunder and such
other matters as the Representative shall reasonably request.
(l) Counsel to DFS and Deutsche FRLP shall have furnished to the
Representative any opinions supplied to the rating agencies relating to
certain matters with respect to the Certificates, which opinion shall also
be addressed to the Underwriters. Drafts of such opinions shall have been
furnished to the Representative no later than five business days prior to
the Closing Date.
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(m) The Representative shall have received a letter, dated the Closing
Date and addressed to the Underwriters, from KPMG Peat Marwick LLP
certified public accountants, substantially in the form heretofore approved
by the Representative and counsel to the Underwriters.
(n) The Representative shall have received a copy of (i) a file-
stamped acknowledgment copy of the UCC-1 financing statement on Form UCC-1
filed with the Secretary of State of the State of Missouri with respect to
the transfer of the Receivables and the Collateral Security by DFS to
Deutsche FRLP pursuant to the Receivables Contribution and Sale Agreement,
identifying the Receivables and the Collateral Security as collateral and
naming DFS as debtor and Deutsche FRLP as the secured party, and (ii) a
file-stamped acknowledgment copy of the UCC-1 financing statement on Form
UCC-1 filed with the Secretary of State of the State of Missouri with
respect to the transfer of the Receivables and the Collateral Security by
Deutsche FRLP to the Trustee pursuant to the Pooling and Servicing
Agreement, identifying the Receivables and the Collateral Security as
collateral and naming Deutsche FRLP as debtor and the Trustee as the
secured party.
(o) All documents incident to the Designated Agreements and this
Agreement shall be reasonably satisfactory in form and substance to the
Underwriters and counsel to the Underwriters; and all actions taken by
Deutsche FRLP to authorize the offering and sale of the Offered
Certificates, shall be reasonably satisfactory in form and substance to the
Underwriters and counsel to the Underwriters; and DFS and/or Deutsche FRLP
shall furnish the Underwriters and counsel to the Underwriters with such
other opinions, certificates, letters and documents as the Underwriters or
counsel to the Underwriters shall reasonably request.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representative by notice to the Seller at any time at or prior to Closing Time,
and such termination shall be without liability of any party to any other party
except as provided in Section 5 hereof.
Section 7. Indemnification and Contribution. (a) Each of DFS and
Deutsche FRLP shall, jointly and severally, indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the meaning of
Section 15 of the Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, or arising out of any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened,
-11-
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of Deutsche FRLP and DFS;
and
(iii) against any and all expense whatsoever (including, subject to
Section 7(c) hereof, the fees and disbursements of counsel chosen by you)
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, to the extent that any such expense is
not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to Deutsche FRLP by
the Representative expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless
Deutsche FRLP and DFS, each of their respective directors, each of their
respective officers who signed the Registration Statement, and each person, if
any, who controls Deutsche FRLP and DFS, respectively, within the meaning of
Section 15 of the Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section
7, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto, or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to Deutsche FRLP by such Underwriter through the
Representative expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it with
respect to which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. An indemnifying party
may participate at its own expense in the defense of any such action. In no
event shall the indemnifying parties be liable for the fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
SECTION 8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 7 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, Deutsche FRLP and DFS, jointly
and severally, on the one hand, and the Underwriters, on the other, shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by Deutsche FRLP,
DFS and one or more Underwriters, as incurred, in such proportions that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount bears to the initial public offering price,
-12-
and Deutsche FRLP and DFS shall be jointly and severally responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding the other provisions of this Section 8, an
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Offered Certificates were offered
to the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay in respect of such losses, liabilities, claims,
damages and expenses. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 16 of the Act shall have
the same rights to contribution as such Underwriter and each director or partner
of Deutsche FRLP, each officer of Deutsche FRI who signed the Registration
Statement, and each person, if any, who controls Deutsche FRLP or DFS within the
meaning of Section 16 of the Act shall have the same rights to contribution as
Deutsche FRLP and DFS.
Section 9. Survival of Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of each of DFS, Deutsche FRLP or its officers and of the Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation or statement as to the results thereof,
made by or on behalf of any Underwriter, DFS, Deutsche FRLP or any of their
respective representatives, officers or directors of any controlling person, and
will survive delivery of and payment for the Offered Certificates.
Section 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail on the Closing Date to purchase the Offered
Certificates which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representative shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not exceed
10% of the principal amount of Offered Certificates, each of the non-
defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of
all non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds 10% of the
principal amount of Offered Certificates, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representative or the Deutsche FRLP shall have the
right to postpone Closing Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements.
-13-
Section 11. Notices. All communications hereunder will be in writing
and:
(i) if sent to the Underwriters, will be mailed, delivered or
sent by facsimile transmission and confirmed to the Representative at:
Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
(ii) if sent to Deutsche FRLP, will be mailed, delivered or sent
by facsimile transmission, and confirmed to it at:
Deutsche Floorplan Receivables, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
(iii) if sent to DFS, will be mailed, delivered or sent by
facsimile transmission, and confirmed to it at:
Deutsche Financial Services Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
or to such other address as DFS, Deutsche FRLP or the Representative may
designate in writing to the other parties hereto.
Section 12. Successors. This Agreement will inure to the benefit of
and be binding upon the Underwriters, DFS and Deutsche FRLP and their respective
successors and the officers and directors and controlling persons referred to in
Section 7 hereof, and no other person will have any right or obligations
hereunder.
Section 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
-14-
Section 14. Counterparts. This Agreement may be executed by each of
the parties hereto in any number of counterparts, and by each of the parties
hereto on separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
-15-
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, whereupon this letter and your acceptance
hereof shall constitute a binding agreement between the Underwriters, Deutsche
FRLP and DFS.
Very truly yours,
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
By: DEUTSCHE FLOORPLAN RECEIVABLES, INC.,
General Partner
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
DEUTSCHE FINANCIAL SERVICES CORPORATION
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
-16-
Accepted in New York, New York,
as of the date hereof:
DEUTSCHE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
For itself and as Representative
of the other Underwriters named in
Schedule A hereto.
-17-
SCHEDULE A
Principal Amount of
Name of Underwriter Offered Certificate
-------------------
Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇......................
Citicorp Securities Markets Inc...............
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc......................
▇▇▇▇▇▇ Brothers, Inc...............................
Salomon Brothers Inc..........................
-----------------
Total $
-----------------
EXHIBIT A
TO UNDERWRITING AGREEMENT
1. DFS is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Nevada, and is duly qualified to
transact business and is in good standing in each jurisdiction in the United
States of America in which failure to so qualify would have a material adverse
effect on its business and financial condition.
2. Deutsche FRLP is duly qualified to transact business and is in
good standing in each jurisdiction in the United States of America in which the
conduct of its business or the ownership of its property requires such
qualification.
3. Deutsche FRI is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nevada and is duly qualified to
transact business and is in good standing in each jurisdiction in the United
States in which the conduct of its business or the ownership of its property
requires such qualification.
4. The partnership agreement of Deutsche FRLP has been duly and
validly authorized, executed and delivered by Deutsche FRI and constitutes the
valid and finding agreement of Deutsche FRI, enforceable against Deutsche FRI in
accordance with its terms.
5. Deutsche FRLP has been validly formed and is validly existing as a
limited partnership under the Delaware Revised Uniform Limited Partnership Act
(the "Delaware Act"), with full partnership power and authority under the
partnership agreement and the Delaware Act to conduct the business in which it
proposes to engage as described in the Prospectus.
6. The execution and delivery of the Pooling and Servicing Agreement
and the Underwriting Agreement and the performance of the Designated Agreements
and the Underwriting Agreement are permitted under the Delaware Act and will not
violate any applicable Delaware law or regulation.
7. DFS has the requisite power to execute and deliver each of the
Pooling and Servicing Agreement and the Underwriting Agreement and to perform
its obligations under each Designated Agreement and the Underwriting Agreement.
8. Each of the Pooling and Servicing Agreement and the Underwriting
Agreement has been duly and validly authorized, executed and delivered by each
of DFS and Deutsche FRLP, and each Designated Agreement constitutes the valid,
legal and binding obligation of each of DFS and Deutsche FRLP, enforceable
against each of DFS and Deutsche FRLP in accordance with its terms, except as
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or other similar laws relating to or affecting the enforcement of creditors'
rights generally and by general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
A-1
9. The direction of Deutsche FRLP to authenticate and deliver the
Offered Certificates has been duly authorized by Deutsche FRLP, and the Offered
Certificates have been duly and validly authorized, and, when duly and validly
executed by Deutsche FRLP and authenticated by the Trustee and delivered to
Deutsche FRLP in accordance with the Pooling and Servicing Agreement, and
following delivery to and payment therefor by the Underwriters as provided
herein, will be validly issued and outstanding and entitled to the benefits of
the Pooling and Servicing Agreement.
10. Neither the execution and delivery by DFS or Deutsche FRLP of the
Pooling and Servicing Agreement or the Underwriting Agreement nor the
consummation of DFS or Deutsche FRLP of the transactions therein contemplated by
the Designated Agreements or the Underwriting Agreement, nor the issuance of the
Offered Certificates by the Trust or the public offering thereof as contemplated
in the Prospectus, will conflict with or result in a breach of, or constitute a
default (with notice or passage of time or both) under, or result in the
imposition of any lien, charge or encumbrance upon any of the property or assets
of DFS or Deutsche FRLP (except as required or permitted pursuant thereto)
pursuant to any indenture, mortgage, contract or other instrument to which DFS
or Deutsche FRLP is party or by which any of them is bound, nor will such action
violate any provision of the certificate of incorporation or by-laws of DFS or
the partnership agreement of Deutsche FRLP. To the best of such counsel's
knowledge and information, the execution and delivery of the Pooling and
Servicing Agreement and the Underwriting Agreement and the consummation of the
transactions contemplated by the Designated Agreements or the Underwriting
Agreement will not result in the violation of the provisions of any applicable
federal or Missouri law, administrative regulation or court decree.
11. There are no legal or governmental proceedings pending or, to the
knowledge of such counsel, threatened which are required to be disclosed in the
Registration Statement, other than those disclosed therein, and all pending
legal or governmental proceedings to which DFS or Deutsche FRLP is a party or to
which any of its property is subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the business,
are, considered in the aggregate, not material. There are no legal or
governmental proceedings pending or, to the best of such counsel's knowledge and
information, threatened (A) asserting the invalidity of the Receivables
Contribution and Sale Agreement, the Pooling and Servicing Agreement or the
Certificates, (B) seeking to prevent the issuance of the Certificates or the
consummation by DFS or Deutsche FRLP of any of the transactions contemplated by
the Designated Agreements or the Underwriting Agreement or (C) which might
materially and adversely affect the performance by DFS or Deutsche FRLP of its
obligations under the Designated Agreements or the Underwriting Agreement.
12. No consent, approval, authorization or order of, or registration,
filing or declaration with, any court or governmental agency or body is required
in connection with (i) the execution and delivery by DFS or Deutsche FRLP of the
Pooling and Servicing Agreement or of the Underwriting Agreement or the
performance by DFS or Deutsche FRLP of any Designated Agreement or of the
Underwriting Agreement or (ii) the offer, sale or delivery of the Offered
Certificates, except such as shall have been obtained or made, as the case may
be, or will be obtained or made, as the case may be, prior to the Closing Date.
A-2
13. Each of DFS and Deutsche FRLP possesses all material licenses,
certificates, authorities or permits issued by the appropriate state or federal
regulatory agencies or bodies necessary to conduct the business now conducted by
it and as described in the Prospectus, except to the extent that the failure to
have such licenses, certificates, authorities or permits does not have a
material adverse effect on the Offered Certificates or the financial condition
of DFS or Deutsche FRLP, and neither DFS nor Deutsche FRLP has received any
notice of proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of its business, operations or financial condition.
14. The Registration Statement has become effective under the Act
and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted or threatened by the Commission. The
Registration Statement and the Prospectus (other than the financial statements
and other accounting information contained in the Registration Statement or the
Prospectus, or omitted therefrom, as to which such counsel does not express any
opinion) comply as to form in all material respects with the requirements of the
Act and the rules and regulations thereunder.
15. There are no contracts or other documents required to be filed as
an exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not so filed or described as
required.
16. The Offered Certificates, each Designated Agreement and the
Underwriting Agreement each conform in all material respects with the
descriptions thereof contained in the Registration Statement and the Prospectus.
17. Each of DFS and Deutsche FRLP has full power and authority to
sell and assign the Receivables and the Collateral Security and has duly
authorized its sale and assignment of such property by all necessary corporate
action.
18. Immediately prior to the transfer of the Receivables to Deutsche
FRLP, DFS owned the Receivables and Collateral Security free and clear of any
lien, security interest or charge. With respect to each Receivable (other than
an Unsecured Receivable) constituting part of the Trust, such Receivable is, to
the best of such counsel's knowledge or information, secured by a validly
perfected first priority security interest in the related security property in
favor of DFS as a secured party, other than as permitted by the Pooling and
Servicing Agreement. Each such Receivable and Collateral Security has been duly
and validly assigned to Deutsche FRLP by DFS.
19. All filings necessary under applicable law to perfect the
transfer of the Receivables and Collateral Security by DFS to Deutsche FRLP
pursuant to the Receivables Contribution and Sale Agreement have been made and,
provided that DFS does not relocate its principal place of business in a state
other than Missouri, no other filings (other than the filing of continuation
statements) need be made to maintain the perfection of the sale of the
Receivables and Collateral Security to Deutsche FRLP pursuant to the Receivables
Contribution and Sale Agreement.
20. Immediately prior to the transfer of the Receivables to the
Trustee, Deutsche FRLP is the sole owner of all right, title and interest in,
and has good and marketable title to, the
A-3
Receivables and the Collateral Security to be transferred by it to the Trust.
The assignment of the Receivables and the Collateral Security, all documents and
instruments relating thereto and all proceeds thereof to the Trustee, pursuant
to the Pooling and Servicing Agreement, vest in the Trustee all interests which
are purported to be conveyed thereby, free and clear of all liens, security
interests, encumbrances or other rights of others, except as specifically
permitted pursuant to the Pooling and Servicing Agreement.
21. Immediately prior to the transfer of the Receivables to the
Trustee, Deutsche FRLP's interest in the Receivables and the Collateral Security
and the proceeds of each of the foregoing were perfected, to the extent any
filing was necessary to effect such perfection, upon the filing of the UCC-1
financing statement, the form of which is attached to such opinion, with the
Secretary of State of the State of Missouri and constituted a perfected
ownership interest therein, free and clear of all liens, security interests,
encumbrances and other rights of others, except as specifically permitted
pursuant to the Pooling and Servicing Agreement. If a court concludes that the
transfer of the Receivables from Deutsche FRLP to the Trustee is a sale, the
interest of the Trustee in the Receivables and the Collateral Security and the
proceeds of each of the foregoing was perfected, to the extent any filing was
necessary to effect such perfection, upon the filing of the UCC-1 financing
statement, the form of which is attached to such opinion, with the Secretary of
State of the State of Missouri and constitutes a perfected ownership interest
therein, free and clear of all liens, security interests, encumbrances and other
rights of others, except as specifically permitted pursuant to the Pooling and
Servicing Agreement. If a court concludes that such transfer is not a sale, the
Pooling and Servicing Agreement constitutes a grant by Deutsche FRLP to the
Trustee of a valid security interest in the Receivables and the Collateral
Security and the proceeds of each of the foregoing, which security interest was
perfected upon the filing of the UCC-1 financing statement, the form of which is
attached to such opinion, with the Secretary of State of the State of Missouri
and constitutes a first priority perfected security interest therein. No filing
or other action, other than the filing of the UCC-1 financing statements with
the Secretary of State of the State of Missouri referred to above, is necessary
to perfect and maintain the ownership interest or the security interest of the
Trustee in the Receivables and the Collateral Security and the proceeds of each
of the foregoing against third parties.
22. The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended. Neither Deutsche
FRLP nor the Trust is or will as a result of the offer and sale of the Offered
Certificates as contemplated by the Underwriting Agreement, become an
"investment company" as defined in the Investment Company Act of 1940, as
amended.
23. The statements in the Prospectus under the headings "Prospectus
Summary - Tax Matters", "Prospectus Summary-ERISA Considerations", "Special
Considerations - Certain Risks Relating to the Insolvency of DFS, Deutsche BSC
or the Seller", "Special Considerations - Effect of Insolvency Laws on
Enforceability of Receivables" and "ERISA Considerations", to the extent that
they constitute matters of law or legal conclusions with respect thereto, were
prepared or reviewed by such counsel and are correct in all material respects.
24. The Receivables are either chattel paper, accounts or general
intangibles under the Missouri Uniform Commercial Code.
A-4
25. Nothing has come to such counsel's attention that would lead such
counsel to believe that the Registration Statement, at the time it became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, at the date thereof or
on the Closing Date, included or includes an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
A-5
EXHIBIT B
TO UNDERWRITING AGREEMENT
1. The Trustee has been duly incorporated and is validly existing as
a corporation in good standing under the laws of New York with full corporate
trust power and authority to enter into and perform its obligations under the
Pooling and Servicing Agreement.
2. The Pooling and Servicing Agreement has been duly executed and
delivered by the Trustee, and, insofar as the laws governing the trust powers of
the Trustee are concerned and assuming due authorization, execution and delivery
thereof by each of DFS and Deutsche FRLP, the Pooling and Servicing Agreement
constitutes a legal, valid and binding obligation of the Trustee, enforceable
against the Trustee in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganizations or other
similar laws relating to or affecting the enforcement of creditor' rights
generally and by general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
3. The Offered Certificates have been duly executed, authenticated
and delivered by the Trustee.
4. Neither the execution nor delivery by the Trustee of the Pooling
and Servicing Agreement, nor the consummation of any of the transactions by the
Trustee contemplated thereby required the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action with respect
to, any governmental authority or agency under any existing federal or New York
State law governing the trust powers of the Trustee, except such as have been
obtained, made or taken.
B-1
