EXHIBIT 1.1
DEUTSCHE RECREATIONAL ASSET FUNDING CORPORATION
DISTRIBUTION FINANCIAL SERVICES RV TRUSTS
Asset Backed Notes and Asset Backed Certificates
UNDERWRITING AGREEMENT
November 20, 2001
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
Acting on behalf of itself and, if applicable, as the Representative of the
several Underwriters named in Schedule 1 to the Terms Agreement (in either
such capacity sometimes herein the "Representative")
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Section 1. Introductory. Deutsche Recreational Asset Funding
Corporation, a Nevada corporation (the "Depositor"), proposes to sell Asset
Backed Notes (the "Notes") and Asset Backed Certificates (the "Certificates" and
together with the Notes, the "Securities") from time to time in one or more
series (each, a "Series"). Each Series, which may include one or more classes of
Notes and/or one or more classes of Certificates, will be issued by a trust
formed with respect to such Series (each, a "Trust"). Each Trust will be formed
pursuant to a Trust Agreement (including any related Amended and Restated Trust
Agreement, each a "Trust Agreement") to be entered into between the Depositor
and the trustee specified therein (the "Owner Trustee"). Each Series of Notes
will be issued and secured pursuant to an Indenture (an "Indenture") between the
Trust and the indenture trustee specified therein (the "Indenture Trustee" and
together with the Owner Trustee, the "Trustees") and will represent indebtedness
of the related Trust. Each Certificate will represent a fractional undivided
interest in the related Trust. The assets of the Trust (the "Trust Property")
will include, among other things, a pool of retail installment sale contracts,
installment loans, or notes (the "Receivables") secured by new or used
recreational vehicles and/or recreational sport and power boats (including any
boat motors and accompanying trailers) and yachts (both power and sail), certain
monies due or received thereunder, security interests in the items financed
thereby and certain other property that shall have secured a Receivable and that
shall be obtained by the applicable Trust incidental to a foreclosure or
repossession in the event of a payment default.
The Securities are more fully described in the Registration Statement
(as defined herein). Each Series of Securities and any classes of Securities
(each, a "Class") within such Series may
vary as to, among other things, number and types of Classes, principal or
notional amount, interest rate, the percentage interest, if any, evidenced by
each Class in the payments of principal of and interest on, or with respect to,
the Trust Property, priority of payment among Classes, credit enhancement with
respect to the related Trust Property or Securities, the Classes of such Series
subject to this Underwriting Agreement, and any other terms contemplated by the
Terms Agreement (as defined herein) with respect to the Securities of such
Series.
Each offering of the Securities to which this Underwriting Agreement
applies will be made pursuant to the Registration Statement through the
Representative or through an underwriting syndicate managed by the
Representative. Whenever the Depositor determines to form a Trust and to make
such an offering of Securities of a Series, it will enter into an appropriate
agreement (the "Terms Agreement"), a form of which is attached hereto as Exhibit
A, providing for the sale of certain classes of such Securities to, and the
purchase and offering thereof by, the Representative and such other
underwriters, if any, as have authorized the Representative to enter into such
Terms Agreement on their behalf (the "Underwriters," which term shall include
the Representative, whether acting alone in the sale of such Securities, in
which case any reference herein to the Representative shall be deemed to refer
to the Representative in its individual capacity as Underwriter of the
Securities, or as a member of an underwriting syndicate). Such Terms Agreement
shall specify the undivided interest, principal or notional amount of each Class
of the Securities to be issued, the Classes of Securities subject to this
Underwriting Agreement, the price at which such Classes of Securities are to be
purchased by the Underwriters from the Depositor and the initial public offering
price or prices or the method by which the price or prices at which such
Securities are to be sold will be determined.
Each such offering of Securities as to which Deutsche Banc Alex. ▇▇▇▇▇
Inc. is the sole underwriter or acts as the Representative of the several
Underwriters will be governed by this Underwriting Agreement, as supplemented by
the applicable Terms Agreement, and this Underwriting Agreement and such Terms
Agreement shall inure to the benefit of and be binding upon each Underwriter
participating in the offering of such Securities. This Underwriting Agreement is
non-exclusive, and the Depositor may enter into any other underwriting agreement
with any other underwriter with respect to the offering and sale of Securities
of a Series.
Section 2. Representations, Warranties and Covenants of DFS and the
Depositor. Each of Deutsche Financial Services Corporation ("DFS") and the
Depositor, as applicable, represents and warrants to, and agrees with, each
Underwriter, as of the date of the related Terms Agreement, that:
(a) The registration statement specified in the related Terms
Agreement, on Form S-3, including a prospectus, has been filed with the
Securities and Exchange Commission (the "Commission") for the registration under
the Securities Act of 1933, as amended (the "Act"), of the Securities, which
registration statement has been declared effective by the Commission. Such
registration statement, as amended to the date of the related Terms Agreement,
including any documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Act which were filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on or before the effective date of the
Registration Statement (as such date is defined in Rule
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158(c) under the Act, the "Effective Date"), is hereinafter called the
"Registration Statement," and such prospectus, as such prospectus is
supplemented by a prospectus supplement relating to the Securities of the
related Series, each in the form first filed after the date of the related Terms
Agreement pursuant to Rule 424(b) under the Act, including any documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act
which were filed under the Exchange Act on or before the date of such prospectus
supplement (such prospectus supplement, including such incorporated documents,
in the form first filed after the date of the related Terms Agreement pursuant
to Rule 424(b) is hereinafter called the "Prospectus Supplement"), is
hereinafter called the "Prospectus" (except where the context requires
otherwise). Any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Prospectus or the
Prospectus Supplement shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date or the issue date of
the Prospectus or Prospectus Supplement, as the case may be, deemed to be
incorporated therein by reference pursuant to Item 12 of Form S-3 under the Act.
(b) The related Registration Statement, at the time it became
effective, and the prospectus contained therein, and any amendments thereof and
supplements thereto filed prior to the date of the related Terms Agreement,
conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder (the "Rules and Regulations"); on
the date of the related Terms Agreement and on the related Closing Date, the
Registration Statement, the Prospectus and the related Prospectus Supplement,
and any amendments thereof and supplements thereto, will conform in all material
respects to the requirements of the Act and the Rules and Regulations; such
Registration Statement, at the time it became effective, did 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;
such Prospectus and Prospectus Supplement, on the date of any filing pursuant to
Rule 424(b) and on the related Closing Date, will not include any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they are
made, not misleading; provided, however, that neither DFS nor the Depositor
makes any representations or warranties as to the information contained in or
omitted from (A) such Registration Statement or such Prospectus (or any
supplement thereto) in reliance upon and in conformity with written information
furnished to the Depositor by or on behalf of the Underwriters specifically for
use in the preparation thereof as specified in the related Terms Agreement or
(B) any ABS Filing (as defined herein), or in any amendment thereof or
supplement thereto, incorporated by reference in such Registration Statement or
such Prospectus (or any amendment thereof or supplement thereto).
(c) Each of DFS, Ganis Credit Corporation ("Ganis") and the Depositor
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.
(d) Each of DFS, Ganis and the Depositor has, and will have, the
requisite power to execute and deliver each this Underwriting Agreement and each
Trust Agreement, Indenture,
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transfer and servicing agreement, transfer agreement or other document executed
by any of them in connection with the issuance and sale of the related
Securities (each, an "Agreement") (as applicable) and Terms Agreement and to
perform their respective obligations hereunder and thereunder.
(e) Each of the Agreements (as applicable), Terms Agreements and this
Underwriting Agreement has been, or will be, duly and validly authorized,
executed and delivered by each of DFS, Ganis and the Depositor, and each of the
Agreements (as applicable), Terms Agreements and this Underwriting Agreement
constitutes, or will constitute, the valid, legal and binding obligation of each
of DFS, Ganis and the Depositor, enforceable against each of DFS, Ganis and the
Depositor in accordance with its terms.
(f) The Securities of each Series conform, or will conform as of the
related Closing Date, to the description thereof contained in the Registration
Statement, the Prospectus, and the related Prospectus Supplement; and the
Securities of such Series, on the related Closing Date, will have been duly and
validly authorized and, when such Securities are duly and validly executed,
issued and delivered in accordance with the related Agreement, and sold to the
Underwriters as provided herein and in the related Terms Agreement, will each be
validly issued and outstanding and entitled to the benefits of such Agreement.
(g) Neither the execution and delivery by DFS, Ganis or the Depositor
of any Agreement (as applicable), Terms Agreement or this Underwriting Agreement
nor the consummation by DFS, Ganis or the Depositor of the transactions
contemplated herein or therein, nor the issuance of the Securities of a Series
by a Trust or the public offering thereof as contemplated in the Prospectus and
the applicable Prospectus Supplement, 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,
Ganis or the Depositor (except as required or permitted pursuant thereto or
hereto), pursuant to any material mortgage, indenture, loan agreement, contract
or other instrument to which DFS, Ganis or the Depositor 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, Ganis or the
Depositor. None of DFS, Ganis or the Depositor is in violation of its
certificate of incorporation, 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, trust agreement, transfer 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.
(h) No legal or governmental proceedings are pending to which DFS,
Ganis or the Depositor is a party or of which any property of DFS, Ganis or the
Depositor is the subject, which if determined adversely to DFS, Ganis or the
Depositor would, individually or in the aggregate, have a material adverse
effect on the financial position, shareholders' equity or results of operations
of DFS, Ganis or the Depositor; and to the best of DFS's or the Depositor's
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knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(i) No consent, approval, authorization or order of, or registration,
filing or declaration with, any court or governmental agency or body is
required, or will be required, in connection with (i) the execution and delivery
by DFS, Ganis or the Depositor of any Agreement (as applicable), Terms Agreement
or this Underwriting Agreement or the performance by DFS, Ganis or the Depositor
of any Agreement (as applicable), Terms Agreement or this Underwriting Agreement
or (ii) the offer, sale or delivery of the Securities of any Series, 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 applicable Closing Date, or will not
materially adversely affect the ability of DFS, Ganis or the Depositor to
perform its obligations under any Agreement (as applicable), Terms Agreement or
this Underwriting Agreement.
(j) Each of DFS, Ganis and the Depositor possesses, and will possess,
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 and
Prospectus Supplement, except to the extent that the failure to have such
licenses, certificates, authorities or permits does not have a material adverse
effect on the Securities of any Series or the financial condition of DFS, Ganis
or the Depositor, and none of DFS, Ganis or the Depositor has received, nor will
have received as of each Closing Date, 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.
(k) On the related Closing Date, (i) the Depositor will have good and
marketable title to the related Receivables being transferred by it to the Trust
pursuant thereto, free and clear of any Lien, except to the extent permitted in
the applicable Agreement, (ii) the Depositor will not have assigned to any
person any of its right, title or interest in such Receivables or in the
applicable Agreement, (iii) the Depositor will have the power and authority to
sell such Receivables to the Trust, and upon execution and delivery of the
applicable Agreement by the Owner Trustee, the Trust will have good and
marketable title thereto, in each case free of Liens other than any Lien created
by an Underwriter, and (iv) if applicable, the related Trust shall have the
power and authority to assign such Receivables to the related Indenture Trustee,
and, upon execution and delivery of the related Indenture, such Indenture
Trustee will have all the interest in such Receivables conveyed thereby, free of
Liens other than any Lien created by an Underwriter.
(l) The properties and businesses of each of DFS, Ganis and the
Depositor conform, and will conform, in all material respects, to the
descriptions thereof contained in the Prospectus and the Prospectus Supplements.
(m) Since the date as of which information is given in the Registration
Statement, there has not been any material adverse change in the business or net
worth of the Depositor, Ganis or DFS.
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(n) None of the Trust, Ganis or the Depositor is an "investment
company" and none is required to be registered as an "investment company," as
such term is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
Section 3. Purchase, Sale and Delivery of Securities. (a) On the basis
of the representations, warranties and agreements contained in this Underwriting
Agreement and in the Terms Agreement for a particular offering of Securities,
but subject to the terms and conditions set forth in this Underwriting Agreement
and subject to the execution of such Terms Agreement, the Depositor agrees to
sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Depositor, the respective
original principal amounts of the related Securities set forth in the related
Terms Agreement opposite the name of such Underwriter, plus any additional
original principal amount of Securities which such Underwriter may be obligated
to purchase pursuant to Section 12 hereof, at the purchase price therefor set
forth in such Terms Agreement.
The parties hereto agree that settlement for all securities sold
pursuant to this Underwriting Agreement shall take place on the terms set forth
herein and not as set forth in Rule 15c6-1(a) under the Exchange Act.
(b) Against payment of the purchase price specified in the applicable
Terms Agreement in same day funds drawn to the order of the Depositor (or paid
by such other manner as may be agreed upon by the Depositor and the
Representative), the Depositor will deliver the related Securities of a Series
to the Underwriters at the offices of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at such time as shall be specified in such Terms
Agreement, or at such other place and time as the Representative and the
Depositor shall agree upon, each such time being herein referred to as a
"Closing Date." The Securities of each Series will initially be in definitive,
fully registered form or will be maintained through the facilities of The
Depository Trust Company, as indicated in the applicable Prospectus Supplement.
Section 4. Public Offering of Securities. It is understood by the
parties hereto that, after the Registration Statement becomes effective, the
Underwriters propose to offer the Securities for sale to the public (which may
include selected dealers), as set forth in the Prospectus.
Section 5. Covenants of DFS and the Depositor. Each of DFS and the
Depositor jointly and severally covenants and agrees with each Underwriter:
(a) That immediately following the execution of each Terms Agreement,
the Depositor shall prepare a Prospectus Supplement setting forth the amount of
Securities covered thereby and the terms thereof not otherwise specified in the
Prospectus, the price at which such Securities are to be purchased by the
Underwriters from the Depositor, either the initial public offering price or the
method by which the price at which such Securities are to be sold will be
determined, the selling concessions and reallowances, if any, and such other
information as the Representative and the Depositor deem appropriate in
connection with the offering of such Securities; provided, however, that each of
DFS and the Depositor shall make no amendment or supplement to the Registration
Statement affecting or relating to any material extent to the Securities of a
Series to which this Underwriting Agreement relates, and shall make no
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amendment or supplement to the Prospectus or the Prospectus Supplement 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 shall not file any such amendment or supplement to which the Representative
shall reasonably object; and, provided further, that each of DFS and the
Depositor shall 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 or the Prospectus
Supplement or any amended Prospectus or Prospectus Supplement 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 Securities of a Series 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, the Prospectus or the Prospectus
Supplement 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 or Prospectus Supplement relating to the Securities of a Series or
suspending any such qualification, promptly shall use its best efforts to obtain
its withdrawal.
(b) That the Depositor shall cause any Computational Materials and any
Structural Term Sheets (each as defined herein) with respect to the Securities
of a Series that are delivered by an Underwriter to the Depositor pursuant to
Section 9 to be filed with the Commission on a Current Report on Form 8-K (an
"ABS Filing") pursuant to Rule l3a-11 under the Exchange Act on the business day
immediately following the later of (i) the day on which such Computational
Materials and Structural Term Sheets are delivered to counsel for the Depositor
by an Underwriter prior to 1:00 p.m. New York time and (ii) the date on which
the related Prospectus Supplement is first made available to the public. The
Depositor shall cause any Collateral Term Sheet with respect to the Securities
of a Series that is delivered by the Representative to the Depositor in
accordance with the provisions of Section 10 to be filed with the Commission on
an ABS Filing pursuant to Rule l3a-l1 under the Exchange Act on the business day
immediately following the day on which such Collateral Term Sheet is delivered
to counsel for the Depositor by the Representative. Each such ABS Filing shall
be incorporated by reference in the related Prospectus and the related
Registration Statement.
(c) Promptly from time to time to take such action as the
Representative may reasonably request in order to qualify the Securities of a
Series 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 Securities; provided,
that in connection therewith neither DFS nor the Depositor shall be required to
qualify as a foreign corporation to do business or to file a general consent to
service of process in any jurisdiction.
(d) 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 may from time to time reasonably request; and, if the delivery of a
Prospectus or Prospectus Supplement shall be at the time required by law in
connection with sales of the Securities of a Series and either (i) any event
shall have occurred as a result of which the Prospectus or Prospectus Supplement
would include any untrue statement
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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 or Prospectus Supplement,
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 or Prospectus Supplement which will correct such
statement or omission or effect such compliance, or if it is necessary at any
time to amend or supplement the Prospectus or Prospectus Supplement to comply
with the Act or the Rules and Regulations, the Depositor will promptly prepare
and file with the Commission an amendment or supplement that will correct such
statement or omission or an amendment that will effect such compliance;
provided, however, that the Depositor will not be required to file any such
amendment or supplement with respect to any Computational Materials, Structural
Term Sheets or Collateral Term Sheets incorporated by reference in the
Prospectus other than any amendments or supplements of such Computational
Materials or Structural Term Sheets that are furnished to the Depositor by the
Underwriters pursuant to Section 9(c) hereof or any amendments or supplements of
such Collateral Term Sheets that are furnished to the Depositor by the
Underwriters pursuant to Section 10(c) hereof which are required to be filed in
accordance therewith.
(e) To file or cause to be filed with the Commission all reports
required to be filed with respect to each Series pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act.
(f) So long as any of the Securities of a Series are outstanding, to
furnish each Underwriter copies of all reports or other communications
(financial or other) furnished to holders of such Securities, 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 the Depositor as such Underwriter may from time to time
reasonably request.
(g) To pay all expenses (other than fees of counsel for the
Underwriters, except as provided below) incident to the performance of the
obligations under this Underwriting Agreement and the related Terms 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 Underwriting Agreement and the
related Terms Agreement;
(iii) the preparation, printing, issuance and delivery of the
Securities of each Series to the Underwriters;
(iv) the fees and disbursements of counsel and accountants for
DFS and/or the Depositor;
(v) the qualification of the Securities of a Series under
securities laws in accordance with the provisions of Section 5(c)
hereof, including filing fees and the
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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 Securities 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
Prospectus Supplement 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 any rating agency rating the Securities of a
Series; and
(x) the fees and expenses of each Trustee and its counsel.
If the sale of the Securities of a Series is not consummated by reason
of any failure, refusal or inability on the part of DFS or the Depositor 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 the Depositor 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 the
Depositor.
(h) So long as the Securities of a Series are outstanding, or until
such time as each Underwriter shall cease to maintain a secondary market in such
Securities, whichever occurs first, to deliver to each Underwriter all
statements and reports furnished to the related Trustee pursuant the applicable
Agreement, as soon as such statements and reports are furnished to such Trustee.
(i) From and after the related Closing Date, not to take any action
inconsistent with the related Trust's ownership of the related Receivables other
than as permitted by the applicable Agreement.
(j) To the extent, if any, that the rating provided with respect to any
Class of Securities of a Series by a rating agency or agencies that initially
rate such Securities is conditional upon the furnishing of documents or the
taking of any other actions by DFS and/or the Depositor, to furnish such
documents and take any such other actions.
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(k) That during the period when a prospectus is required by law to be
delivered in connection with the sale of the Securities of a Series pursuant to
this Underwriting Agreement and the related Terms Agreement, the Depositor will
file, or cause the related Trustee to file on behalf of the related Trust, on a
timely and complete basis, all documents that are required to be filed by such
Trust with the Commission pursuant to Sections 13, 14 or 15(d) of the Exchange
Act.
(l) The Depositor will file the Prospectus, with the Commission
pursuant to and in accordance with subparagraph (2) (or, if applicable and if
consented to by the Representative, subparagraph (5)) of Rule 424(b) no later
than the second business day following the date it is first used. The Depositor
will advise the Representative promptly of any such filing pursuant to Rule
424(b).
Section 6. Conditions Precedent to the Obligations of the Underwriters.
The obligation of the Underwriters to purchase and pay for the Securities of a
Series is subject to the accuracy of the representations and warranties on the
part of DFS and the Depositor herein and in the related Terms Agreement as of
the respective dates thereof and the related Closing Date, to the accuracy of
the statements of officers of DFS and the Depositor made pursuant to the
provisions hereof and thereof, to the performance by each of DFS and the
Depositor of its obligations hereunder and thereunder and to the following
additional conditions precedent:
(a) Prior to the related 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 the Depositor, shall be contemplated by the Commission. The Prospectus
shall have been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) hereof.
(b) Each of DFS and the Depositor shall have delivered on or before the
related Closing Date to the Representative a certificate, dated as of such
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 related Agreement and
this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the
representations and warranties of DFS and/or the Depositor, as the case
may be, in this Underwriting Agreement and the related Terms Agreement
are true and correct in all material respects at and as of such Closing
Date with the same effect as if made on such Closing Date;
(ii) each of DFS and the Depositor, 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 such 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 the Depositor's knowledge,
threatened as of such Closing Date; and
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(iv) nothing has come to such person's attention that would
lead such person to believe that the Prospectus as amended and
supplemented as of such Closing Date 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 and Prospectus Supplement, 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 related Trust,
the Depositor or DFS or any material adverse change in the financial position or
results or operations of such Trust, the Depositor or DFS otherwise than as set
forth or contemplated in the Prospectus and Prospectus Supplement, which in any
such case makes it impracticable or inadvisable in the Representative's judgment
to proceed with the public offering or the delivery of the related Securities on
the terms and in the manner contemplated in the related Terms Agreement and
Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms 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, Ganis or the Depositor which, in the
Representative's judgment, materially impairs the investment quality of the
related Securities, (ii) any material adverse change in the financial markets in
the United States or any outbreak or escalation of hostilities, any declaration
of war or national emergency by Congress, or any other substantial national or
international calamity emergency, calamity or crisis, the effect of which is
such as to make it, in the sole judgment of the Representative, impracticable or
inadvisable to market such Securities or to enforce contracts for the sale of
such Securities, (iii) the suspension of trading generally by either the
American Stock Exchange, NASDAQ National Market 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 such Terms
Agreement or this Underwriting Agreement or default in the performance of DFS's
or the Depositor's obligations under any related 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 the Depositor, an opinion, dated
the related Closing Date, addressed to the Underwriters and satisfactory in form
and substance to the Representative and to counsel to the Underwriters, with
respect to the matters set forth in Exhibit B hereto.
(f) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for Ganis, an opinion, dated the related
Closing Date, addressed to the Underwriters and satisfactory in form and
substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for the Depositor, an opinion, dated the
related Closing Date and satisfactory
-11-
in form and substance to the Representative and to counsel to the Underwriters,
to the effect that the information in the Prospectus and Prospectus Supplement
under the heading "State and Local Tax Consequences," to the extent it
constitutes matters of Missouri, Illinois, California or New York law or legal
conclusions with respect thereto, has been reviewed by such counsel and is
correct in all material respects.
(h) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for DFS and the Depositor, an opinion, dated
the related 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.
(i) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for each Trustee, an opinion, dated the
related Closing Date, addressed to the Underwriters, DFS and the Depositor and
satisfactory in form and substance to the Representative and to counsel to the
Underwriters, in substantially the form of Exhibit C hereto.
(j) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for each Trust, an opinion, dated the
related Closing Date, addressed to the Underwriters and satisfactory in form and
substance to the Representative and to counsel to the Underwriters.
(k) The Representative shall have received from counsel to the
Underwriters, an opinion with respect securities law matters, dated the related
Closing Date, addressed to the Underwriters and satisfactory in form and
substance to the Representative.
(l) The Representative shall have received an officer's certificate
dated the related Closing Date of the chairman of the board, the president, an
executive vice president or the treasurer of each Trustee in which such officer
shall state that, to the best of his/her knowledge after reasonable
investigation, the representations and warranties of such Trustee contained in
the related Agreement are true and correct in all material respects, and that
such Trustee has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied under the
related Agreement at or prior to such Closing Date.
(m) Each Trustee shall have furnished to the Representative a
certificate of the Trustee, signed by one or more duly authorized officers of
such Trustee, dated the related Closing Date, as to the due acceptance of the
related Agreement by such Trustee and the due execution and delivery of the
Securities of such Series by such Trustee thereunder and such other matters as
the Representative shall reasonably request.
(n) Counsel to DFS and the Depositor shall have furnished to the
Representative any opinions supplied to the rating agencies relating to certain
matters with respect to the Securities of a Series, which opinions 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 related
Closing Date.
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(o) The Representative shall have received a letter, dated the related
Closing Date and addressed to the Underwriters, from certified public
accountants (who shall be satisfactory to the Representative), substantially in
the form approved by the Representative and counsel to the Underwriters.
(p) The Representative shall have received a copy of (i) a file-stamped
acknowledgment copy of each UCC-1 financing statement on Form UCC-1
appropriately filed with respect to the transfer of the related Receivables by
DFS to Ganis and by Ganis to the Depositor, identifying such Receivables as
collateral, (ii) a file-stamped acknowledgment copy of each UCC-1 financing
statement on Form UCC-l appropriately filed with respect to the transfer of the
related Receivables by the Depositor to the Owner Trustee pursuant to the
related Agreement, identifying such Receivables as collateral and naming the
Depositor as debtor and the Trust as the secured party, and (iii) if applicable,
a file-stamped acknowledgment copy of each UCC-1 financing statement on Form
UCC-1 appropriately filed with respect to the grant of the related Receivables
by the Trust to the Indenture Trustee pursuant to the related Indenture,
identifying such Receivables as collateral and naming the Trust as debtor and
the Indenture Trustee as the secured party.
(q) All documents incident to the Agreements, Terms Agreements and this
Underwriting Agreement shall be reasonably satisfactory in form and substance to
the Representative and counsel to the Underwriters; and all actions taken by the
Depositor to authorize the offering and sale of the Securities of a Series shall
be reasonably satisfactory in form and substance to the Representative arid
counsel to the Underwriters; and DFS and/or the Depositor shall furnish the
Representative and counsel to the Underwriters with such other opinions,
certificates, letters and documents as the Representative or counsel to the
Underwriters shall reasonably request.
(r) The Securities of the related Series shall have received the
ratings specified in the related Terms Agreement without any negative outlook.
(s) On or prior to the related Closing Date, there has been no
downgrading, nor has any notice been given of (i) any intended or possible
downgrading or (ii) any review or possible changes in rating the direction of
which has not been indicated, in the rating accorded and originally requested by
and paid for by or on behalf of the Depositor relating to any previously issued
asset-backed securities of any Trust by any "nationally recognized statistical
rating organization" (as such terms is defined for purposes of the Exchange
Act).
(t) On the Closing Date, each of the Agreements and the Securities
shall have been duly authorized, executed and delivered by the parties thereto,
shall be in full force and effect and no default shall exist thereunder. The
Agreements and the Securities shall be substantially in the forms heretofore
provided to the Representative.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Underwriting Agreement
(with respect to the related Securities) and the related Terms Agreement may be
terminated by the Representative by notice to the Depositor
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at any time at or prior to the related Closing Date, 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 the
Depositor 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 or Section 20 of the Exchange 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 an ABS Filing, 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,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; and
(iii) against any and all expense whatsoever (including,
subject to Section 7(c) hereof, the reasonable fees and disbursements
of counsel chosen by the Representative) 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 Section 7 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 (A) in reliance upon and
in conformity with written information furnished to the Depositor 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) and set forth in the Prospectus and in the Prospectus
Supplement, in each case as specified in the related Terms Agreement, or (B) in
any ABS Filing or any amendment or supplement thereof, except to the extent that
any untrue statement or alleged untrue statement therein or omission therefrom
results (or is alleged to have resulted) from an error (a "Pool Error") in the
information concerning the characteristics of the Receivables furnished by the
Depositor to the Underwriter in writing or by electronic transmission that was
used in the preparation of any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) included in such ABS Filing (or amendment or
supplement thereof). The indemnity provided for in this Section 7 shall be in
addition to any liability which DFS and the Depositor may otherwise have.
Neither DFS nor the Depositor will, without the prior written
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consent of the Representative, settle or compromise or consent to the entry of
any judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not the
Representative or any person who controls the Representative is a party to such
claim, action, suit or proceeding), unless such settlement, compromise or
consent (i) includes an unconditional release of all of the Underwriters and
such controlling persons from all liability arising out of such claim, action,
suit or proceeding and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(b) Each Underwriter severally, and not jointly, agrees to indemnify
and hold harmless the Depositor and DFS, each of their respective directors,
each of their respective officers who signed the Registration Statement, and
each person, if any, who controls the Depositor 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 (i) 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 the Depositor 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), in each case as specified in the related Terms Agreement,
or (ii) any Computational Materials or ABS Term Sheets (or amendments or
supplements thereof) furnished to the Depositor by such Underwriter through the
Representative pursuant to Section 9 or Section 10, or directly by such
Underwriter, to the extent that such materials were delivered to investors by
such Underwriter, and incorporated by reference in such Registration Statement
or the related Prospectus or any amendment or supplement thereof (except that no
such indemnity shall be available for any losses, claims, damages or
liabilities, or actions in respect thereof, resulting from any Pool Error). The
remedies provided for in this Section 7 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified party
at law or in equity.
(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 Section 7. 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 unavailable or insufficient, to hold harmless an
indemnified party in respect of any losses, claims, damages or liabilities (or
actions in respect thereof), the Depositor and DFS, jointly and severally, on
the one hand, and the Underwriters (as applicable), on the other, in order to
provide
-15-
for just and equitable contribution, shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
Section 7 incurred by the Depositor, DFS and one or more Underwriters, as
incurred, in such proportions that (i) each applicable Underwriter is
responsible for that portion represented by the percentage that the underwriting
discount received by it bears to the initial public offering price of the
related Series of Securities, and the Depositor and DFS shall be jointly and
severally responsible for the balance or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, not only such
proportion but also the relative fault of the indemnifying party or parties on
the one hand and the indemnified party on the other in connection with the
statements or omissions or alleged statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations; 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. The relative fault of the parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Depositor, DFS
or the Underwriters, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
and any other equitable considerations appropriate in the circumstances. The
Depositor, DFS and the Underwriters agree that it would not be equitable if the
amount of such contribution were determined by pro rata or per capita allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take into account the equitable
considerations referred to above in this Section 8. 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 such
Securities 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 and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
hereunder are several in proportion to their respective underwriting
obligations, and not joint, and contributions among Underwriters shall be
governed by the provisions of the Deutsche Banc Alex. ▇▇▇▇▇ Inc. Master
Agreement Among Underwriters. For purposes of this Section 8, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the Act
shall have the same rights to contribution as such Underwriter and each officer
of the Depositor or DFS who signed the Registration Statement, and each person,
if any, who controls the Depositor or DFS within the meaning of Section 15 of
the Act shall have the same rights to contribution as the Depositor and DFS.
Section 9. Computational Materials and Structural Term Sheets. (a) Not
later than 5 p.m., New York time, on the business day before the date on which
the applicable ABS Filing relating to the Securities of a Series is required to
be filed by the Depositor with the Commission pursuant to Section 5(b) hereof,
the Representative shall deliver to the Depositor a complete copy of all
materials provided by the Underwriters to prospective investors in such
Securities that constitute (i) "Computational Materials" within the meaning of
the no-action letter dated May 20, 1994, issued by the Division of Corporation
Finance of the Commission to ▇▇▇▇▇▇, Peabody Acceptance Corporation I, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇ Structured
-16-
Asset Corporation and the no-action letter dated May 27, 1994, issued by the
Division of Corporation Finance of the Commission to the Public Securities
Association (together, the "▇▇▇▇▇▇ Letters"), the filing of which material is a
condition of the relief granted in such letters (such materials being the
"Computational Materials") and (ii) "Structural Term Sheets" within the meaning
of the no-action letter dated February 17, 1995, issued by the Division of
Corporation Finance of the Commission to the Public Securities Association (the
"PSA Letter"), the filing of which material is a condition of the relief granted
in such letter (such materials being the "Structural Term Sheets"); prior to
such delivery by the Representative to the Depositor of such materials, the
Representative shall notify, or cause to be notified, the Depositor or its
counsel by telephone of its intention to deliver such materials and the
approximate date on which such delivery of such materials is expected to occur.
(b) Each Underwriter represents and warrants to and agrees with the
Depositor, as of the date of the related Terms Agreement and as of the related
Closing Date, that:
(i) the Computational Materials furnished to the Depositor
pursuant to Section 9(a) constitute (either in original, aggregated or
consolidated form) all of the materials furnished to prospective
investors by such Underwriter prior to the time of delivery thereof to
the Depositor that are required to be filed with the Commission with
respect to the related Securities in accordance with the ▇▇▇▇▇▇
Letters, and such Computational Materials comply with the requirements
of the ▇▇▇▇▇▇ Letters; and
(ii) the Structural Term Sheets furnished to the Depositor
pursuant to Section 9(a) constitute all of the materials furnished to
prospective investors by the Underwriter prior to the time of delivery
thereof to the Depositor that are required to be filed with the
Commission as "Structural Term Sheets" with respect to the related
Securities in accordance with the PSA Letter, and such Structural Term
Sheets comply with the requirements of the PSA Letter.
(c) If, at any time when a prospectus relating to the Securities of a
Series is required to be delivered under the Act, it shall be necessary to amend
or supplement the related Prospectus and Prospectus Supplement as a result of an
untrue statement of a material fact contained in any Computational Materials or
Structural Term Sheets provided by the Underwriters pursuant to this Section 9
or the omission to state therein a material fact required, when considered in
conjunction with the related Prospectus and Prospectus Supplement, to be stated
therein or necessary to make the statements therein, when read in conjunction
with the related Prospectus and Prospectus Supplement, not misleading, or if it
shall be necessary to amend or supplement any ABS Filing relating to any
Computational Materials or Structural Term Sheets to comply with the Act or the
Rules and Regulations, the Representative promptly will prepare and furnish to
the Depositor for filing with the Commission an amendment or supplement that
will correct such statement or omission or an amendment which will effect such
compliance.
Section 10. Collateral Term Sheets. (a) Prior to the delivery of any
"Collateral Term Sheet" within the meaning of the PSA Letter, the filing of
which material is a condition of the relief granted in such letter (such
material being the "Collateral Term Sheets" and together with
-17-
Structural Term Sheets, referred to herein as "ABS Term Sheets"), to a
prospective investor in Securities of a Series, the Representative shall, in
order to facilitate the timely filing of such material with the Commission,
notify the Depositor and its counsel by telephone of its intention to deliver
such materials and the approximate date on which the first such delivery of such
materials is expected to occur. Not later than 2 p.m., New York time, on the
business day immediately following the date on which any Collateral Term Sheet
was first delivered to a prospective investor in such Securities, the
Representative shall deliver to the Depositor a complete copy of all materials
provided by the Underwriters to prospective investors in the Securities that
constitute "Collateral Term Sheets." At the time of each such delivery, the
Representative shall indicate in writing that the materials being delivered
constitute Collateral Term Sheets.
(b) Each Underwriter represents and warrants to and agrees with the
Depositor as of the date of the related Terms Agreement and as of the related
Closing Date, that the Collateral Term Sheets furnished to the Depositor
pursuant to Section 10(a) constitute all of the materials furnished to
prospective investors by such Underwriter prior to time of delivery thereof to
the Depositor that are required to be filed with the Commission as "Collateral
Term Sheets" with respect to the related Securities in accordance with the PSA
Letter, and such Collateral Term Sheets comply with the requirements of the PSA
Letter.
(c) If, at any time when a prospectus relating to the Securities of a
Series is required to be delivered under the Act, it shall be necessary to amend
or supplement the related Prospectus and Prospectus Supplement as a result of an
untrue statement of a material fact contained in any Collateral Term Sheets
provided by the Underwriters pursuant to this Section 10 or the omission to
state therein a material fact required, when considered in conjunction with the
related Prospectus and Prospectus Supplement, to be stated therein or necessary
to make the statements therein, when read in conjunction with the related
Prospectus and Prospectus Supplement, not misleading, or if it shall be
necessary to amend or supplement any ABS Filing relating to any Collateral Term
Sheets to comply with the Act or the Rules and Regulations, the Representative
promptly will prepare and furnish to the Depositor for filing with the
Commission an amendment or supplement that will correct such statement or
omission or an amendment which will effect such compliance.
Section 11. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
each of DFS, the Depositor or its officers and of the Underwriters set forth in
or made pursuant to this Underwriting Agreement and the related Terms 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, the Depositor or any of their respective representatives, officers or
directors of any controlling person, and will survive delivery of and payment
for the related Securities.
Section 12. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail on a Closing Date to purchase the related
Securities which it or they are obligated to purchase under this Underwriting
Agreement and the applicable Terms 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
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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 and under the applicable Terms Agreement; 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 such Series of Securities to be purchased pursuant to
such Terms Agreement, each of the non-defaulting Underwriters named in such
Terms Agreement shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations thereunder 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 such Series of Securities to be purchased pursuant to such
Terms Agreement, the applicable Terms Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 12 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 the related Terms Agreement, either the Representative or the Depositor shall
have the right to postpone the related Closing Date for a period not exceeding
seven days in order to effect any required changes in the Registration
Statement, Prospectus or Prospectus Supplement or in any other documents or
arrangements.
Section 13. 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 Banc Alex. ▇▇▇▇▇ Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇)-▇▇▇-▇▇▇▇
(ii) if sent to the Depositor, will be mailed, delivered or
sent by facsimile transmission, and confirmed to it at:
Deutsche Recreational Asset Funding Corporation
c/o Deutsche Financial Services Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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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: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
or to such other address as DFS, the Depositor or the Representative may
designate in writing to the other parties hereto.
Section 14. Successors. This Underwriting Agreement will inure to the
benefit of and be binding upon the Underwriters, DFS and the Depositor 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 15. Governing Law. THIS UNDERWRITING AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK, NEW YORK OVER ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS UNDERWRITING AGREEMENT AND ANY TERMS
AGREEMENT, AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF THE ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE OR FEDERAL COURT, AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE
OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OF PROCEEDING.
Section 16. Nonpetition Covenant. Notwithstanding any prior termination
of this Underwriting Agreement or any Terms Agreement, the Underwriters shall
not acquiesce, petition or otherwise invoke or cause the Depositor or any Trust
to invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Depositor or any Trust under any
federal or state bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Depositor or any Trust or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Depositor or any Trust.
Section 17. Counterparts. This Underwriting 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.
-20-
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, the
Depositor and DFS.
Very truly yours,
DEUTSCHE RECREATIONAL ASSET FUNDING
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
DEUTSCHE FINANCIAL SERVICES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Accepted in New York, New York,
as of the date hereof:
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇ ▇▇▇▇
-------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Acting on behalf of itself and, if applicable,
as the Representative of the Underwriters
named in the related Terms Agreement.
EXHIBIT A
DEUTSCHE RECREATIONAL ASSET FUNDING CORPORATION
DISTRIBUTION FINANCIAL SERVICES RV TRUST _____-__
Asset Backed Securities
TERMS AGREEMENT
[Date]
To: Deutsche Recreational Asset Funding Corporation, as Depositor under the
Trust Agreement dated as of [Date] (the "Trust Agreement").
Re: Underwriting Agreement dated as of November __, 2001 (the "Standard Terms,"
and together with this Terms Agreement, the "Agreement").
Series Designation: Series _____.
Terms of the Series Securities: Distribution Financial Services RV
Trust _____-___ Asset Backed [Notes][Certificates], Class __, Class __, Class
__, Class __, Class __, Class __ and Class __ [Notes][Certificates] (the
"Securities") will evidence beneficial ownership interest in a pool of
Receivables having the characteristics described in the Prospectus Supplement
dated the date hereof. Only the Class __, Class __, Class __, Class __ and Class
__ (Notes] [Certificates] (collectively, the "Offered Securities") are being
sold pursuant to the terms hereof.
Registration Statement: File Number 333-________.
Ratings: It is a condition of Closing that at the Closing Date the
Class __ and Class __ Securities be rated "___" by _________________ ("___") and
"___" by _________________ ("____"); that the Class __ Securities be rated "__"
by __ and "___" by _____; that the Class __ Securities be rated "__" by ___ and
"__" by ________.
Terms of Sale of Offered Securities: The Depositor agrees to sell to
Deutsche Bank Securities Inc. [and _______________________________ (the
"Underwriter[s]")] and Deutsche Bank Securities Inc. [and _____________________
each] agree[s][, severally and not jointly,] to purchase from the Depositor the
Offered Securities in the principal amounts and prices set forth beneath their
[respective] name[s] on Schedule 1. The purchase price for each class of the
Offered Securities shall be the applicable Purchase Price Percentage set forth
in Schedule 1 multiplied by the applicable principal amount.
Cut-off Date: [Date]
Closing Date: 10:00 A.M., New York time, on or about [Date]. On the
Closing Date, the Depositor will deliver the Offered Securities to the
Underwriters against payment therefor.
Underwriter-Provided Information: The Depositor and DFS each
acknowledge and agree that the information set forth in (i) the table
immediately following the ________ paragraph under the caption "Underwriting" in
the Prospectus Supplement dated [Date], (ii) the ______ and _______ paragraphs
under such caption in such Prospectus Supplement and (iii) the table immediately
following the _______ paragraph under such caption in such Prospectus
Supplement, as such information relates to the Securities, constitute the only
information furnished in writing by or on behalf of the Underwriters for
inclusion in the Registration Statement, the Prospectus or the Prospectus
Supplement, and the Underwriters confirm that such statements are correct.
Incorporation of the Standard Terms: Each of the provisions of the
Standard Terms is incorporated herein by reference in its entirety and shall be
deemed to be a part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein and each of the representations and
warranties set forth therein shall be deemed to have been made on and as of the
date of this Terms Agreement, and the Standard Terms and this Terms Agreement
shall be construed as, together, one and the same agreement. Without limiting
the foregoing, Sections 14 through 17 of the Standard Terms are incorporated
herein by reference in their entirety.
A-2
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement among the Underwriters, Deutsche Recreational Asset Funding
Corporation and Deutsche Financial Services Corporation.
Very truly yours,
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
[Acting on behalf of itself and as the
Representative of the Underwriters
named herein.]
Accepted in New York, New York,
as of the date hereof:
DEUTSCHE RECREATIONAL ASSET FUNDING
CORPORATION
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
DEUTSCHE FINANCIAL SERVICES CORPORATION
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
A-3
Schedule 1
Class Interest Initial Purchase Approximate Approximate
----- Rate Principal Price Amount Amount
---- Amount Percentage Purchased by Purchased
(1) ---------- Deutsche Banc by
Alex. ▇▇▇▇▇ Inc. [ ]
---------- ---------------- -------
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Total/ $ % $ $
Wtd Avg
(1) Approximate.
A-4
EXHIBIT B
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. The Depositor 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 in which the conduct of its business or the ownership of its property
requires such qualification.
3. The Depositor has the corporate power and corporate authority to
carry on its business as described in the Prospectus and to own its own assets
in connection therewith.
4. DFS and the Depositor each has the requisite power to execute and
deliver each Agreement (as applicable), Terms Agreement and the Underwriting
Agreement and to perform its obligations thereunder.
5. Each of the Agreements (as applicable), Terms Agreement and the
Underwriting Agreement has been duly and validly authorized, executed and
delivered by each of DFS and the Depositor, and each constitutes the valid,
legal and binding obligation of each of DFS and the Depositor, enforceable
against each of DFS and the Depositor 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.
6. The Securities of the applicable Series have been duly and validly
authorized, and, when duly and validly executed and delivered in accordance with
the related Agreement, and following delivery to and payment therefor by the
Underwriters as provided in the related Terms Agreement, will be validly issued
and outstanding and entitled to the benefits of the related Agreement.
7. Neither the execution and delivery by DFS or the Depositor of any
Agreement (as applicable), a Terms Agreement or the Underwriting Agreement nor
the consummation of DFS or the Depositor of the transactions therein
contemplated, nor the issuance of the Securities of a Series by a Trust or the
public offering thereof as contemplated in the Prospectus and Prospectus
Supplement, 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 the
Depositor (except as required or permitted pursuant thereto) pursuant to any
indenture, mortgage, contract or other instrument to which DFS or the Depositor
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
Depositor. To the best of such counsel's knowledge and information, the
execution and delivery of the Agreements, a Terms Agreement and the Underwriting
Agreement and the consummation of the transactions
contemplated thereby will not result in the violation of the provisions of any
applicable federal or Missouri law, administrative regulation or court decree.
8. 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 the Depositor 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 an Agreement or the
Securities of a Series, (B) seeking to prevent the issuance of such Securities
or the consummation by DFS or the Depositor of any of the transactions
contemplated by the Agreements, a Terms Agreement or the Underwriting Agreement
or (C) which might materially and adversely affect the performance by DFS or the
Depositor of its obligations under the Agreements (as applicable), a Terms
Agreement or the Underwriting Agreement.
9. 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 the Depositor of the
Agreements (as applicable), a Terms Agreement or of the Underwriting Agreement
or the performance by DFS or the Depositor of any of its obligations therein or
(ii) the offer, sale or delivery of the Securities of a Series, 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 applicable Closing Date.
10. Each of DFS and the Depositor 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 as amended and supplemented, except to the
extent that the failure to have such licenses, certificates, authorities or
permits does not have a material adverse effect on the Securities of a Series or
the financial condition of DFS or the Depositor, and neither DFS nor the
Depositor 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.
11. 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 as amended and supplemented (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.
B-2
12. 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.
13. The Securities, each Agreement and the Underwriting Agreement each
conform in all material respects with the descriptions thereof contained in the
Registration Statement and the Prospectus.
14. Each of DFS and the Depositor has full power and authority to sell
and assign the related Receivables and has duly authorized its sale and
assignment of such property by all necessary corporate action.
15. All filings necessary under applicable law to perfect the transfer
of the related Receivables by DFS to the Depositor pursuant to the related
Agreement have been made and, provided that DFS does not change its name or its
jurisdiction of incorporation to a state other than Nevada, no other filings
(other than the filing of continuation statements) need be made to maintain the
perfection of the sale of such Receivables to the Depositor pursuant to the
related Agreement.
16. Immediately prior to the transfer of the related Receivables to the
Trust, the Depositor is the sole owner of all right, title and interest in, and
has good and marketable title to, such Receivables to be transferred by it to
the Trust. The assignment of the related Receivables, all documents and
instruments relating thereto and all proceeds thereof to the Trust, pursuant to
the related Agreement, vest in the Trust 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
related Agreement.
17. Immediately prior to the transfer of the related Receivables to the
Trust, the Depositor's interest in such Receivables and the proceeds of each of
the foregoing were perfected, to the extent any filing was necessary to effect
such perfection, upon the appropriate filing of the UCC-1 financing statement,
the form of which is attached to such opinion, 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 related Agreement. If a court concludes that the transfer of the
related Receivables from the Depositor to the Trust is a sale, the interest of
the Trust in such Receivables and the proceeds of each of the foregoing was
perfected, to the extent any filing was necessary to effect such perfection,
upon the appropriate filing of the UCC-1 financing statement, the form of which
is attached to such opinion, 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 related
Agreement. If a court concludes that such transfer is not a sale, the related
Agreement constitutes a grant by the Depositor to the Trust of a valid security
interest in the related Receivables and the proceeds of each of the foregoing,
which security interest was perfected upon the appropriate filing of the UCC-1
financing statement, the form of which is attached to such opinion, and
constitutes a first priority perfected security interest therein. No filing or
other action, other than the appropriate filing of the UCC-l financing
statements, is
B-3
necessary to perfect and maintain the ownership interest or the security
interest of the Trust in the related Receivables and the proceeds of each of the
foregoing against third parties.
18. If applicable, immediately prior to the grant of the related
Receivables to the Indenture Trustee, the related Trust is the sole owner of all
right, title and interest in, and has good and marketable title to, such
Receivables to be granted by it to the Indenture Trustee. The assignment of the
related Receivables, all documents and instruments relating thereto and all
proceeds thereof to the Indenture Trustee, pursuant to the related Indenture,
vest in the Indenture 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 related
Indenture.
19. If applicable, immediately prior to the grant of the related
Receivables to the Indenture Trustee, the related Trust's interest in such
Receivables and the proceeds of each of the foregoing were perfected, to the
extent any filing was necessary to effect such perfection, upon the appropriate
filing of the UCC-1 financing statement, the form of which is attached to such
opinion, 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 related Indenture. The related
Indenture constitutes a grant by the related Trust to the Indenture Trustee of a
valid security interest in the related Receivables and the proceeds of each of
the foregoing, which security interest was perfected upon the appropriate filing
of the UCC-1 financing statement, the form of which is attached to such opinion,
and constitutes a first priority perfected security interest therein. No filing
or other action, other than the appropriate filing of the UCC-l financing
statements, is necessary to perfect and maintain the security interest of the
Indenture Trustee in the related Receivables and the proceeds of each of the
foregoing against third parties.
20. The related Trust Agreement is not required to be qualified under
the Trust Indenture Act of 1939, as amended. If applicable, the related
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended.
21. None of DFS, the Transferor, the Depositor or the related Trust is
(and none of them will, as a result of the offer and sale of the Securities of a
Series, be) an "investment company" or "controlled" by an "investment company"
as such terms are defined in the Investment Company Act of 1940, as amended.
22. If applicable, the Class or Classes of Securities of a Series so
designated in the related Prospectus Supplement will be "eligible securities"
within the meaning of paragraph (a) of Rule 2a-7 under the Investment Company
Act of 1940, as amended.
23. The statements in the Prospectus Supplement under the headings
"Summary of Terms -- Tax Status," "Summary of Terms -- ERISA Considerations,"
"Summary of Terms --Legal Investment," "Description of the Notes," "Description
of the Transfer and Servicing Agreements," "Federal Income Tax Consequences,"
"State and Local Tax Consequences" and "ERISA Considerations" and in the
Prospectus under the heading "Description of the Notes," "Description of the
Certificates," "Certain Information Regarding the Securities," "Description of
B-4
the Transfer and Servicing Agreements," "Certain Legal Aspects of the
Receivables," "Federal Income Tax Consequences," "State and Local Tax
Consequences" 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. 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 and Prospectus
Supplement, at the date thereof or on the applicable 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.
B-5
EXHIBIT C
1. The Trustee has been duly incorporated, formed or organized and is
validly existing in good standing under the laws of the jurisdiction governing
its incorporation, formation or organization with full trust power and authority
to enter into and perform its obligations under the related Agreement.
2. The related 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 the Depositor and DFS (as applicable), such 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 related Securities have been duly executed, authenticated and
delivered by the Trustee.
4. Neither the execution nor delivery by the Trustee of the related
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 related state
law governing the trust powers of the Trustee, except such as have been
obtained, made or taken.
