EXHIBIT 1.1
EXECUTION
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
Asset Backed Certificates
UNDERWRITING AGREEMENT
April 20, 2000
DEUTSCHE BANK SECURITIES 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")
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Section 1. Introductory. Deutsche Floorplan Receivables, L.P., a Delaware
limited partnership (the "Seller"), proposes to sell Asset Backed Certificates
(the "Certificates") from time to time in one or more series (each, a "Series").
Each Series, which may include one or more classes of Certificates, will be
issued by the Distribution Financial Services Floorplan Master Trust (the
"Trust") formed pursuant to the Pooling and Servicing Agreement as amended and
restated as of April 1, 2000 (as the same may be supplemented, amended, amended
and restated or otherwise modified from time to time, and including the
supplement for the related Series, the "Pooling and Servicing Agreement") among
the Seller, Deutsche Financial Services Corporation ("DFS") as Servicer, and the
trustee specified therein (the "Trustee"). Each Certificate will represent a
fractional undivided interest in the assets of the Trust. The assets of the
Trust (the "Trust Property") will include, among other things, a pool of dealer
floorplan receivables (the "Receivables").
The Certificates are more fully described in the Registration Statement (as
defined herein). Each Series of Certificates and any classes of Certificates
(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 Certificates, 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 Certificates of such Series.
Each offering of the Certificates 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 Seller
determines to make such an offering of Certificates 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
Certificates 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
Certificates, 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 Certificates, 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 Certificates to be issued, the Classes of Certificates subject
to this Underwriting Agreement, the price at which such Classes of Certificates
are to be purchased by the Underwriters from the Seller and the initial public
offering price or prices or the method by which the price or prices at which
such Certificates are to be sold will be determined.
Each such offering of Certificates as to which Deutsche Bank Securities
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 Certificates. This Underwriting Agreement
is non-exclusive, and the Seller may enter into any other underwriting agreement
with any other underwriter with respect to the offering and sale of Certificates
of a Series.
Section 2. Representations, Warranties and Covenants of DFS and the Seller.
Each of DFS and the Seller, 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 Certificates, 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 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 Certificates 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
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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 Seller 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 Seller 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) DFS is a corporation duly incorporated, validly existing and in good
standing under the laws of the state of its incorporation, the Seller is a
limited partnership duly formed, validly existing and in good standing under the
laws of its state of formation, and each of DFS and the Seller 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 power to own, lease and operate its
property and conduct its business as it is currently conducted.
(d) Each of DFS and the Seller has, and will have, the requisite power to
execute and deliver the Pooling and Servicing Agreement, any series supplement
thereto relating to a Series of Certificates, and any other agreement or
document executed by either of them in connection with the issuance and sale of
the related Certificates (each, an "Agreement"), this Underwriting Agreement and
the Terms Agreement and to perform their respective obligations hereunder and
thereunder.
(e) Each of the Agreements, Terms Agreements and this Underwriting
Agreement has been, or will be, duly and validly authorized, executed and
delivered by each of DFS and the Seller, and each of the Agreements, Terms
Agreements and this Underwriting Agreement constitutes, or will constitute, the
valid, legal and binding obligation of each of DFS and the Seller, enforceable
against each of DFS and the Seller in accordance with its terms.
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(f) The Certificates 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
Certificates of such Series, on the related Closing Date, will have been duly
and validly authorized and, when such Certificates are duly and validly
executed, issued and delivered in accordance with the Agreements, 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 the
Agreements.
(g) Neither the execution and delivery by DFS or the Seller of any
Agreement, Terms Agreement or this Underwriting Agreement nor the consummation
by DFS or the Seller of the transactions contemplated herein or therein, nor the
issuance of the Certificates of a Series by the 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 or the Seller
(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 the Seller 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 certificate of limited partnership of the
Seller. Neither DFS nor the Seller is in violation of its certificate of
incorporation or certificate of limited partnership, as applicable, 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 or the
Seller is a party or of which any property of DFS or the Seller is the subject,
which if determined adversely to DFS or the Seller would, individually or in the
aggregate, have a material adverse effect on the financial position,
shareholders' equity or results of operations of DFS or the Seller; and to the
best of DFS's or the Seller's 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 or the Seller of any Agreement, Terms Agreement or this Underwriting
Agreement or the performance by DFS or the Seller of any Agreement, Terms
Agreement or this Underwriting Agreement or (ii) the offer, sale or delivery of
the Certificates 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 or the Seller to perform its obligations under any Agreement, Terms
Agreement or this Underwriting Agreement.
(j) Each of DFS and the Seller possesses, and will possess, all material
licenses, certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory
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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 Certificates of any Series or the
financial condition of DFS or the Seller, and neither DFS nor the Seller 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 Seller or the Trust will have good
and marketable title to the related Receivables, free and clear of any Lien,
except to the extent permitted in the Agreements, (ii) the Seller will not have
assigned to any person any of its right, title or interest in such Receivables
or in the Agreements, (iii) the Seller will have the power and authority to sell
such Receivables to the Trust.
(l) The properties and businesses of each of DFS and the Seller 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 Seller or DFS.
Section 3. Purchase, Sale and Delivery of Certificates. (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 Certificates,
but subject to the terms and conditions set forth in this Underwriting Agreement
and subject to the execution of such Terms Agreement, the Seller agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Seller, the respective original
principal amounts of the related Certificates set forth in the related Terms
Agreement opposite the name of such Underwriter, plus any additional original
principal amount of Certificates 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 Certificates 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 Seller (or paid by such
other manner as may be agreed upon by the Seller and the Representative), the
Seller will deliver the related Certificates 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 Seller shall agree upon, each
such time being herein referred to as a "Closing Date." The Certificates 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.
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Section 4. Public Offering of Certificates. It is understood by the parties
hereto that, after the Registration Statement becomes effective, the
Underwriters propose to offer the Certificates for sale to the public (which may
include selected dealers), as set forth in the Prospectus.
Section 5. Covenants of DFS and the Seller. Each of DFS and the Seller
jointly and severally covenants and agrees with each Underwriter:
(a) That immediately following the execution of each Terms Agreement, the
Seller shall prepare a Prospectus Supplement setting forth the amount of
Certificates covered thereby and the terms thereof not otherwise specified in
the Prospectus, the price at which such Certificates are to be purchased by the
Underwriters from the Seller, either the initial public offering price or the
method by which the price at which such Certificates are to be sold will be
determined, the selling concessions and reallowances, if any, and such other
information as the Representative and the Seller deem appropriate in connection
with the offering of such Certificates; provided, however, that each of DFS and
the Seller shall make no amendment or supplement to the Registration Statement
affecting or relating to any material extent to the Certificates of a Series to
which this Underwriting Agreement relates, and shall make no 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 Seller 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 Certificates 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 Certificates of a Series or suspending any
such qualification, promptly shall use its best efforts to obtain its
withdrawal.
(b) That the Seller shall cause any Computational Materials and any
Structural Term Sheets (each as defined herein) with respect to the Certificates
of a Series that are delivered by an Underwriter to the Seller pursuant to
Section 9 to be filed with the Commission on a Current Report on Form 8-K (an
"ABS Filing") pursuant to Rule 13a-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 Seller 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 Seller
shall cause any Collateral Term Sheet with respect to the Certificates of a
Series that is delivered by the Representative to the Seller in accordance with
the provisions of Section 10 to be filed with the Commission on an ABS Filing
pursuant to Rule 13a-11 under the Exchange Act on the business day immediately
following the day on which such Collateral Term Sheet is delivered to counsel
for the Seller by the Representative.
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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 Certificates 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 Certificates; provided, that in
connection therewith neither DFS nor the Seller 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 Certificates 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 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 Seller 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 Seller
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 Seller by the Underwriters pursuant to Section 9(c) hereof or
any amendments or supplements of such Collateral Term Sheets that are furnished
to the Seller 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 Certificates of a Series are outstanding, to
furnish each Underwriter copies of all reports or other communications
(financial or other) furnished to holders of such Certificates, 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 Seller as such Underwriter may from time to time
reasonably request.
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(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, the related Terms
Agreement and the Pooling and Servicing Agreement, including the
supplement for the related Series;
(iii) the preparation, printing, issuance and delivery of the Certificates
of each Series to the Underwriters;
(iv) the fees and disbursements of counsel and accountants for DFS and/or
the Seller;
(v) the qualification of the Certificates of a Series 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 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
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 Certificates of a Series; and
(x) the fees and expenses of the Trustee and its counsel.
If the sale of the Certificates of a Series is not consummated by reason of
any failure, refusal or inability on the part of DFS or the Seller 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 Seller 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
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clauses (ii) and (iii) of Section 6(d) shall not be conditions required to be
fulfilled by DFS or the Seller.
(h) So long as the Certificates of a Series are outstanding, or until such
time as each Underwriter shall cease to maintain a secondary market in such
Certificates, whichever occurs first, to deliver to each Underwriter all
statements and reports furnished to the Trustee pursuant the Agreements, as soon
as such statements and reports are furnished to the Trustee.
(i) From and after the related Closing Date, not to take any action
inconsistent with the Trust's ownership of the related Receivables other than as
permitted by the Agreements.
(j) To the extent, if any, that the rating provided with respect to any
Class of Certificates of a Series by a rating agency or agencies that initially
rate such Certificates is conditional upon the furnishing of documents or the
taking of any other actions by DFS and/or the Seller, to furnish such documents
and take any such other actions.
(k) That during the period when a prospectus is required by law to be
delivered in connection with the sale of the Certificates of a Series pursuant
to this Underwriting Agreement and the related Terms Agreement, the Seller will
file, or cause the Trustee to file on behalf of the Trust, on a timely and
complete basis, all documents that are required to be filed by the Trust with
the Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
Section 6. Conditions Precedent to the Obligations of the Underwriters. The
obligation of the Underwriters to purchase and pay for the Certificates of a
Series is subject to the accuracy of the representations and warranties on the
part of DFS and the Seller 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 Seller made pursuant to the provisions
hereof and thereof, to the performance by each of DFS and the Seller of its
obligations hereunder and thereunder 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 Underwriting
Agreement or such later date as shall have been consented to by the
Representative; and 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 Seller, shall be contemplated by the Commission. If the Seller has
elected to rely upon Rule 430A of the Rules and Regulations, the price of the
Certificates of a Series 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
Rules and Regulations within the prescribed time period, and prior to the
related Closing Date the Seller 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 Rules and Regulations.
(b) Each of DFS and the Seller shall have delivered on or before the
related Closing Date to the Representative a certificate, dated as of such
Closing Date, signed by the president, a
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senior vice president or a vice president of DFS or of the general partner of
the Seller, as the case may be, to the effect that the signer of such
certificate has carefully examined the Registration Statement, the Prospectus,
each 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 Seller, 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 Seller, 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 Seller's knowledge, threatened as
of such Closing Date; and
(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 Trust, the
Seller or DFS or any material adverse change in the financial position or
results or operations of the Trust, the Seller 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 Certificates
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 the business, financial condition or
properties of DFS or the Seller which, in the Representative's judgment,
materially impairs the investment quality of the related 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 or
inadvisable to market such Certificates or to enforce contracts for the sale of
such 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 such Terms Agreement or this
Underwriting Agreement or default in the performance of DFS's or the Seller's
10
obligations under any 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 Seller, 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 the Seller, an opinion, dated the
related 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 Prospectus Supplement under the heading "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.
(g) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for DFS and the Seller, 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.
(h) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for the Trustee, an opinion, dated the
related Closing Date, addressed to the Underwriters, DFS and the Seller and
satisfactory in form and substance to the Representative and to counsel to the
Underwriters, in substantially the form of Exhibit C hereto.
(i) 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 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
any 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 each related
Agreement at or prior to such Closing Date.
(j) 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 related Closing Date, as to the due acceptance of the Agreements by
the Trustee and the due execution and delivery of the Certificates of such
Series by the Trustee thereunder and such other matters as the Representative
shall reasonably request.
(k) Counsel to DFS and the Seller shall have furnished to the
Representative any opinions supplied to the rating agencies relating to certain
matters with respect to the Certificates 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.
(l) 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
11
Representative), substantially in the form approved by the Representative and
counsel to the Underwriters.
(m) 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 the Seller, identifying such Receivables as collateral and naming DFS as
debtor and the Seller as the secured party and (ii) 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
the Seller to the Trust pursuant to the Agreements, identifying such Receivables
as collateral and naming the Seller as debtor and the Trust as the secured
party.
(n) 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
Seller to authorize the offering and sale of the Certificates of a Series shall
be reasonably satisfactory in form and substance to the Representative and
counsel to the Underwriters; and DFS and/or the Seller 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.
(o) The Certificates of the related Series shall have received the ratings
specified in the related Terms Agreement.
(p) 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 Seller relating to any previously issued asset-backed
securities of the Trust by any "nationally recognized statistical rating
organization" (as such term is defined for purposes of the Exchange Act).
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 Certificates) and the related Terms Agreement may be terminated
by the Representative by notice to the Seller 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 Seller
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
12
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, if such settlement is
effected with the written consent of the Seller and DFS (which consent
shall not be unreasonably withheld); 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 Seller 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
Seller 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).
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Seller 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 Seller 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 Seller 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 Seller by such Underwriter through the Representative pursuant to Section 9
or Section 10, or directly by such Underwriter, to the extent
13
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).
(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 held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Seller and DFS, jointly
and severally, on the one hand, and the Underwriters (as applicable), on the
other, shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by said Section 7 incurred by the
Seller, DFS and one or more Underwriters, as incurred, in such proportions that
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 Certificates, and the Seller 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 of the underwriting discount
received by it. 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
Seller or DFS who signed the Registration Statement, and each person, if any,
who controls the Seller or DFS within the meaning of Section 15 of the Act shall
have the same rights to contribution as the Seller 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 Certificates of a Series is required
to be filed by the Seller with the Commission pursuant to Section 5(b) hereof,
the Representative shall deliver to the Seller a complete copy of all materials
provided by the Underwriters to prospective investors in such Certificates 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, Peabody & Co.
Incorporated and ▇▇▇▇▇▇ Structured 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
14
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 Seller of such materials, the
Representative shall notify, or cause to be notified, the Seller 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 Seller,
as of the date of the related Terms Agreement and as of the related Closing
Date, that:
(i) the Computational Materials furnished to the Seller 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 Seller that are required to be filed with the Commission with
respect to the related Certificates 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 Seller 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 Seller that are required to be filed with the Commission as
"Structural Term Sheets" with respect to the related Certificates 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 Certificates 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 Seller 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 Structural Term
Sheets, referred to herein as "ABS Term Sheets"), to a prospective investor in
Certificates of a Series, the Representative shall, in order to facilitate the
timely filing of such material with the Commission, notify the Seller 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
15
immediately following the date on which any Collateral Term Sheet was first
delivered to a prospective investor in such Certificates, the Representative
shall deliver to the Seller a complete copy of all materials provided by the
Underwriters to prospective investors in the Certificates 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 Seller
as of the date of the related Terms Agreement and as of the related Closing
Date, that the Collateral Term Sheets furnished to the Seller 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 Seller that are
required to be filed with the Commission as "Collateral Term Sheets" with
respect to the related Certificates 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 Certificates 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 Seller 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 Seller 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 Seller or any of their respective representatives, officers or
directors of any controlling person, and will survive delivery of and payment
for the related Certificates.
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
Certificates which it or they are obligated to purchase under this Underwriting
Agreement and the applicable Terms Agreement (the "Defaulted Certificates"), 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
Certificates 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 Certificates does not exceed 10%
of the principal amount of such Series of Certificates to be purchased pursuant
to such Terms
16
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 Certificates exceeds 10% of the
principal amount of such Series of Certificates 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 Seller 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 Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
with a copy to:
▇▇▇▇▇ & Wood LLP
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
17
(ii) if sent to the Seller, 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: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
or to such other address as DFS, the Seller 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 Seller 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 Seller or the general
partner of the Seller or the Trust to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Seller or the general partner of the Seller or the Trust under any federal
or state bankruptcy, insolvency or similar law, or appointing a receiver,
liquidator, assignee, trustee,
18
custodian, sequestrator or other similar official of the Seller or the general
partner of the Seller or the Trust or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Seller, of the
general partner of the Seller or the 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.
19
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 Seller
and DFS.
Very truly yours,
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
By: Deutsche Floorplan Receivables, Inc.,
its general partner
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
DEUTSCHE FINANCIAL SERVICES CORPORATION
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
Accepted in New York, New York, as of the date hereof:
DEUTSCHE BANK SECURITIES INC.
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
Acting on behalf of itself and, if applicable, as the
Representative of the Underwriters named in the
related Terms Agreement.
EXHIBIT A
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
Asset Backed Certificates
TERMS AGREEMENT
---------------
[Date]
To: Deutsche Floorplan Receivables, L.P.
Re: Underwriting Agreement dated as of April [[ ]], 2000 (the "Standard
Terms," and together with this Terms Agreement, the "Agreement").
Series Designation: Series ____.
Terms of the Series Certificates: Distribution Financial Services
Floorplan Master Trust, Asset Backed Certificates, Class __, Class __, Class __,
Class __, Class __, Class __ and Class __ Certificates (the "Certificates") 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 __ Certificates
(collectively, the "Offered Certificates") are being sold pursuant to the terms
hereof.
Registration Statement: File Number 333-74457.
Ratings: It is a condition of Closing that at the Closing Date the
Class __ and Class __ Certificates be rated "____" by _______________ ("____")
and "___" by _____________ ("_____"); that the Class __ Certificates be rated
"___" by ____ and "___" by ____; that the Class __ Certificates be rated "__" by
____ and "__" by _______.
Terms of Sale of Offered Certificates: The Seller 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 Seller the
Offered Certificates 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 Certificates 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 Seller will deliver the Offered Certificates to the
Underwriters against payment therefor.
Underwriter-Provided Information: The Seller 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 Certificates, 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.
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 Floorplan Receivables, L.P. and
Deutsche Financial Services Corporation.
Very truly yours,
DEUTSCHE BANK SECURITIES 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 FLOORPLAN RECEIVABLES, L.P.
By: Deutsche Floorplan Receivables, Inc.,
its general partner
By:______________________________
Name:
Title:
By:______________________________
Name:
Title:
DEUTSCHE FINANCIAL SERVICES CORPORATION
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
Schedule 1
----------
Approximate
Amount Approximate
Initial Purchase Purchased by Amount
Interest Principal Price Deutsche Bank Purchased by
Class Rate Amount (1) Percentage Securities Inc. [ ]
-------- ---------- ---------- --------------- ------------
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Total/ $ % $ $
Wtd Avg
(1) Approximate.
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 Seller is a limited partnership duly organized, validly existing and
in good standing under the laws of the State of Delaware 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 Seller has the power and authority to carry on its business as
described in the Prospectus and to own its own assets in connection therewith.
4. DFS and the Seller each has the requisite power to execute and deliver
each Agreement, 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 Seller, and each constitutes the valid, legal
and binding obligation of each of DFS and the Seller, enforceable against each
of DFS and the Seller 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 Certificates of the applicable Series have been duly and validly
authorized, and, when duly and validly executed and delivered in accordance with
the Agreements, 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 Agreements.
7. Neither the execution and delivery by DFS or the Seller of any Agreement
(as applicable), a Terms Agreement or the Underwriting Agreement nor the
consummation of DFS or the Seller of the transactions therein contemplated, nor
the issuance of the Certificates of a Series by the 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 Seller (except
as required or permitted pursuant thereto) pursuant to any indenture, mortgage,
contract or other instrument to which DFS or the Seller 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 certificate of limited partnership of
the Seller. 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 Seller 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
Certificates of a Series, (B) seeking to prevent the issuance of such
Certificates or the consummation by DFS or the Seller 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
Seller 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 Seller of the
Agreements (as applicable), a Terms Agreement or of the Underwriting Agreement
or the performance by DFS or the Seller of any of its obligations therein or
(ii) the offer, sale or delivery of the Certificates 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 Seller 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 Certificates of a Series
or the financial condition of DFS or the Seller, and neither DFS nor the Seller
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 Certificates, 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 Seller 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 action.
15. All filings necessary under applicable law to perfect the transfer of
the related Receivables by DFS to the Seller pursuant to the Agreements 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 such Receivables to the Seller pursuant to the Agreements.
16. Immediately prior to the transfer of the related Receivables to the
Trust, the Seller 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
Agreements, 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 Agreements.
17. Immediately prior to the transfer of the related Receivables to the
Trust, the Seller'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
Agreements. If a court concludes that the transfer of the related Receivables
from the Seller 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 Agreements. If a court
concludes that such transfer is not a sale, the Agreements constitute a grant by
the Seller 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-1 financing statements, is 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.
B-3
18. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended.
19. Neither the Seller nor the Trust is (and neither of them will, as a
result of the offer and sale of the Certificates of a Series, be) an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
20. If applicable, the Class or Classes of Certificates 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.
21. The statements in the Prospectus Supplement under the headings "Summary
- Tax Matters," "Summary - ERISA Considerations," "Description of the
Certificates, " "Federal Income Tax Considerations," "State and Local Tax
Consequences" and "ERISA Considerations" and in the Prospectus under the
headings "Description of the Certificates," "The Trust," "Description of the
Receivables Contribution and Sale Agreement" and "Certain Legal Aspects of the
Receivables," 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.
22. 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-4
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 Agreements.
2. Each 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 Seller
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 Certificates have been duly executed, authenticated and
delivered by the Trustee.
4. Neither the execution nor delivery by the Trustee of the Agreements, 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.