EXHIBIT 1.1
DISTRIBUTION FINANCIAL SERVICES [RV/BOAT] TRUST 199_-_
$__________ (____%) Asset Backed Notes, Class A
$__________ (____%) Asset Backed Notes, Class B
$____________ (____%) Asset Backed Certificates
UNDERWRITING AGREEMENT
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___________ ___, 199_
DEUTSCHE BANK SECURITIES INC.
as Representative of the several Underwriters
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Section 1. Introductory. Deutsche Recreational Asset Funding Corporation,
a Nevada corporation (the "Depositor"), proposes to sell $_____________ (___%)
Asset Backed Notes, Class A and $_______ (____%) Asset Backed Notes, Class B
(the "Offered Notes") and $_________ (___%) Asset Backed Certificates (the
"Offered Certificates") (the Offered Certificates and the Offered Notes are
referred to herein collectively as the "Securities") issued by Distribution
Financial Services [RV/BOAT] Trust 199_-_ (the "Trust"). The Offered Notes will
be secured by the assets of the Trust. Each Offered Certificate will represent
a fractional undivided interest in the Trust. The assets of the Trust will
include, among other things, Receivables [transferred by Deutsche Financial
Services Corporation, a Nevada corporation ("DFS") to Ganis Credit Corporation,
a Delaware corporation ("Ganis"; the Depositor, DFS and Ganis may be referred to
herein individually as a "Participating Entity" and collectively as the
"Participating Entities") pursuant to the DFS/Ganis Transfer Agreement dated as
of _______, 199_ between DFS and Ganis (as amended, amended and restated or
otherwise modified from time to time, the "DFS/Ganis Transfer Agreement"),
Receivables transferred by Ganis to the Depositor pursuant to the
Ganis/Depositor Transfer Agreement dated as of _____, 199_ (as amended, amended
and restated or otherwise modified from time to time, the "Ganis/Depositor
Transfer Agreement"), and Receivables transferred by the Depositor to the Trust
pursuant to the Transfer and Servicing Agreement (as amended, amended and
restated or otherwise modified from time to time, the "Transfer and Servicing
Agreement") dated as of ________________, 199_ among
the Trust, DFS, and the Depositor. The Offered Notes will be issued pursuant to
the Indenture dated as of ___________, 199_ (as amended, amended and restated or
otherwise modified from time to time, the "Indenture"), between the Trust and
_______________________, as indenture trustee (the "Indenture Trustee"). The
Offered Certificates will be issued pursuant to the Trust Agreement dated as of
, 199_ (as amended, amended and restated or otherwise modified from time to
time, the "Trust Agreement") between the Depositor and _________________, as
owner trustee (the "Owner Trustee"). The Transfer and Servicing Agreement, the
DFS/Ganis Transfer Agreement, the Ganis/Depositor Transfer Agreement, the Trust
Agreement and the Indenture are collectively referred to herein as the
"Designated Agreements".
The Depositor has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-56303), including a
related prospectus, for the registration under the Securities Act of 1933, as
amended (the "Act"), of the Securities, in the form heretofore delivered to the
Underwriters. The registration statement (including each prospectus constituting
a part thereof and the information, if any, deemed to be part thereof pursuant
to the rules and regulations of the Commission under the Act (the "1933 Act
Regulations")) as amended at the time it became effective, or, if any post-
effective amendment has been filed with respect thereto, as amended by the most
recent post-effective amendment at the time of its effectiveness, including the
exhibits thereto, is referred to herein as the "Registration Statement". The
form of base prospectus included in the Registration Statement as most recently
filed with the Commission is referred to as the "Base Prospectus" and the form
of the prospectus which includes the Base Prospectus and a prospectus supplement
describing the Securities and the offering thereof which prospectus is first
filed on or after the date of this Agreement in accordance with Rule 424(b) of
the 1933 Act Regulations, is referred to in this Agreement as the "Prospectus",
except that if any revised prospectus or prospectus supplement shall be provided
to you by the Depositor for use in connection with the offering of the
Securities which differs from such Prospectus (whether or not such revised
prospectus or prospectus supplement is required to be filed by the Depositor
pursuant to Rule 424(b) of the 1933 Act Regulations), the term "Prospectus"
shall refer to such revised prospectus and prospectus supplement, as the case
may be, from and after the time it is first provided to you for such use.
Capitalized terms used herein and not otherwise defined herein shall have
the meanings given them in the Transfer and Servicing Agreement.
Section 2. Representations, Warranties and Covenants Participating
Entities. Each Participating Entity, severally but not jointly, represents and
warrants to, and agrees with, Deutsche Bank Securities Inc. ("Deutsche Bank
Securities") and each of the other Underwriters named in Schedule A hereto
(collectively, the "Underwriters", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Deutsche
Bank Securities is acting as representative (in such capacity, Deutsche Bank
Securities shall hereinafter be referred to as the "Representative"), as of the
date hereof that:
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(i) The Registration Statement, including amendments thereto as may have
been required on or prior to the date hereof, has been filed with the
Commission and has become effective. The conditions to the use by the
Depositor of a Registration Statement on Form S-3 under the Act, as set
forth in the General Instructions to Form S-3, have been satisfied with
respect to the Registration Statement and the Prospectus.
(ii) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of any Participating Entity, threatened by
the Commission, and (i) on the Effective Date, the Registration Statement
conformed in all material respects to the requirements of the Act and the
1933 Act Regulations, and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein, or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, (ii) on the date
of this Agreement, the Prospectus conforms in all material respects to the
requirements of the Act and the 1933 Act Regulations, and does not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein, or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading,
and (iii) at the time of filing of the Prospectus pursuant to Rule 424(b)
of the 1933 Act Regulations and on the Closing Date the Registration
Statement and the Prospectus will conform in all material respects to the
requirements of the Act and the 1933 Act Regulations, and neither the
Registration Statement nor the Prospectus will include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein, or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
however, that these representations and warranties shall not apply to any
statement or omission made in reliance upon and in conformity with
information furnished in writing to the Depositor by the Representative
expressly for use in the Registration Statement or the Prospectus and set
forth in [(x) the chart immediately following the first paragraph set forth
under the heading "Underwriting" and (y) the third textual paragraph set
forth under the heading "Underwriting."] "Effective Date" means the latest
of the dates that the Registration Statement or the most recent post-
effective amendment thereto became effective.
(iii) Such Participating Entity 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.
(iv) Such Participating Entity has the requisite power to execute and
deliver each Designated Agreement to which it is a party and this Agreement
and to perform its obligations under the Designated Agreements and
hereunder.
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(v) Each of the Designated Agreements to which it is a party and this
Agreement has been duly and validly authorized, executed and delivered by
such Participating Entity, and each of the Designated Agreements to which
it is a party and this Agreement constitutes the valid, legal and binding
obligation of such Participating Entity, enforceable against such
Participating Entity in accordance with its terms.
(vi) The direction by the Depositor to the Owner Trustee to
authenticate and deliver the Offered Certificates has been duly authorized
by the Depositor, and as of the Closing Date, the Offered Certificates will
be duly and validly authorized, and, when duly and validly executed by the
Trust and authenticated by the Owner Trustee and delivered to the Depositor
in accordance with the Trust Agreement, and following delivery to and
payment therefor by the Underwriters as provided herein, will be validly
issued and outstanding and entitled to the benefits of the Trust Agreement.
(vii) The direction by the Depositor to the Indenture Trustee to
authenticate and deliver the Offered Notes has been duly authorized by the
Depositor, and as of the Closing Date, the Offered Notes will be duly and
validly authorized, and, when duly and validly executed by the Trust and
authenticated by the Indenture Trustee and delivered to the Depositor in
accordance with the Indenture, and following delivery to and payment
therefor by the Underwriters as provided herein, will be validly issued and
outstanding and entitled to the benefits of the Indenture.
(viii) The Offered Certificates will have been duly and validly
executed and authenticated by the Owner Trustee in accordance with the
Trust Agreement on or before the Closing Date. The Offered Notes will have
been duly and validly executed and authenticated by the Indenture Trustee
in accordance with the Indenture on or before the Closing Date.
(ix) Neither the execution and delivery by such Participating Entity
of any Designated Agreement to which it is a party or of this Agreement nor
the consummation by such Participating Entity of the transactions
contemplated in the Designated Agreements or herein, nor the issuance of
the Securities by the Trust or the public offering thereof as contemplated
in the Prospectus, will conflict in any material respect with or result in
a material breach of, or constitute a material default (with notice or
passage of time or both) under, or result in the imposition of any lien,
pledge, charge, encumbrance, adverse claim or other security interest of
any other person (collectively, "Liens") upon any of the property or assets
of such Participating Entity (except as required or permitted pursuant
thereto or hereto), pursuant to any material mortgage, indenture, loan
agreement, contract or other instrument to which such Participating Entity
is party or by which such Participating Entity 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 such Participating Entity. Such
Participating Entity is not in violation of its certificate of
incorporation or in default in any material respect in the performance or
observance of
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any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease, pooling and
servicing agreement or other instrument to which it is a party or by which
it may be bound, or to which any material portion of its property or assets
is subject.
(x) No legal or governmental proceedings are pending to which such
Participating Entity is a party or of which any property of such
Participating Entity is the subject, which if determined adversely to such
Participating Entity would, individually or in the aggregate, have a
material adverse effect on the financial position, shareholders' equity or
results of operations of such Participating Entity; and to the best
knowledge of such Participating Entity, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others.
(xi) 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 such
Participating Entity of any Designated Agreement to which it is a party or
this Agreement or the performance by such Participating Entity of any
Designated Agreement to which it is a party or this Agreement or (ii) the
offer, sale or delivery of the Securities, except such as shall have been
obtained or made, as the case may be, or will be obtained or made, as the
case may be, prior to the Closing Date, or will not materially adversely
affect the ability of such Participating Entity to perform its obligations
under any Designated Agreement to which it is a party or this Agreement.
(xii) Such Participating Entity possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct the
business now conducted by it and as described in the Prospectus, except to
the extent that the failure to have such licenses, certificates,
authorities or permits does not have a material adverse effect on the
Securities or the financial condition of such Participating Entity, and
such Participating Entity has not 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.
(xiii) On the Closing Date, the Depositor (i) will have good and
marketable title to the Receivables being transferred by it to the Trust
pursuant to the Transfer and Servicing Agreement, free and clear of any
Lien, except to the extent permitted in the Transfer and Servicing
Agreement, (ii) will not have assigned to any Person (other than the Trust)
any of its right, title or interest in such Receivables or in the Transfer
and Servicing Agreement and (iii) will have the power and authority to
contribute the Receivables to the Trust, and upon execution and delivery of
the Transfer and Servicing Agreement by the Trust, the Trust will have good
and marketable title thereto, in each case free of Liens other than any
Lien created by an Underwriter.
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(xiv) The properties and businesses of such Participating Entity
conform, in all material respects, to the descriptions thereof contained in
the Prospectus.
Section 3. Purchase, Sale and Delivery of Securities. (a) On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, 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, on __________, 199_, or on such
other date no later than seven Business Days thereafter as shall be mutually
agreed upon by the Depositor and the Representative (the "Closing Date") the
principal amount of the Securities set forth in Schedule A hereto opposite the
name of such Underwriter. The Class A Notes are to be purchased at a purchase
price equal to [ ]% of the aggregate principal amount thereof, the Class B Notes
are to be purchased at a purchase price equal to [ ]% of the aggregate amount
thereof and the Offered Certificates are to be purchased at a purchase price
equal to [ ]% of the aggregate amount thereof.
(b) Against payment of the purchase price in same day funds drawn to the
order of the Depositor, the Depositor will deliver the Securities to the
Underwriters at the offices of Xxxxx, Brown & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 on the Closing Date. The Securities to be so delivered
(other than the Offered Certificate registered in the name of the Depositor,
which shall be a definitive certificate) will be initially represented by one or
more Securities registered in the name of Cede & Co., the nominee of The
Depository Trust Company ("DTC"). The interests of beneficial owners of the
Securities (other than the Offered Certificate registered in the name of the
Depositor, which shall be a definitive certificate) will be represented by book
entries on the records of DTC and participating members thereof.
Section 4. Public Offering of the 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 Each Participating Entity. Each Participating
Entity covenants and agrees severally and not jointly, with each Underwriter:
(a) If required, to file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b) of the 1933 Act Regulations not later
than the time specified therein. DFS and/or the Depositor will advise the
Underwriters promptly of any such filing pursuant to Rule 424(b).
(b) To make no amendment or any supplement to the Registration
Statement or the Prospectus as amended or supplemented, without furnishing
the Representative with a copy of the proposed form thereof and providing
the Representative with a reasonable opportunity to review the same and not
to file any such amendment or supplement to which the Representative shall
reasonably object; and to advise the Representative, promptly after it
receives notice thereof, of the time when any
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amendment to the Registration Statement has been filed or becomes effective
or any supplement to the Prospectus as amended or supplemented or any
amended Prospectus has been filed or mailed for filing, of the issuance of
any stop order by the Commission, of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the Registration
Statement or the Prospectus as amended or supplemented or for additional
information; and, in the event of the issuance of any such stop order or of
any order preventing or suspending the use of any Prospectus relating to
the Securities or suspending any such qualification, promptly to use its
best efforts to obtain its withdrawal.
(c) Promptly from time to time to take such action as the
Representative may reasonably request in order to qualify the Securities
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 no Participating Entity 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 the Representative with copies of the Registration
Statement (including exhibits) and copies of the Prospectus as amended or
supplemented in such quantities as the Representative may from time to time
reasonably request; and if the delivery of a Prospectus shall be at the
time required by law in connection with sales of any Securities, either (i)
any event shall have occurred as a result of which the Prospectus would
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
(ii) for any other reason it shall be necessary during such same period to
amend or supplement the Prospectus as amended or supplemented, to notify
the Representative and to prepare and furnish to the Representative as the
Representative may from time to time reasonably request an amendment or a
supplement to the Prospectus which will correct such statement or omission
or effect such compliance.
(e) To make generally available to Noteholders and Certificateholders
as soon as practicable after the effective date of the Registration
Statement (as such date is defined in Rule 158(c) under the Act), an
earnings statement of the Depositor complying with Rule 158 under the Act
and covering a period of at least twelve consecutive months beginning after
such effective date.
(f) To furnish to each Underwriter copies of the Registration
Statement (one of which will be signed and will include all exhibits), each
related preliminary prospectus, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as such Underwriter reasonably requests.
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(g) So long as any of the Securities are outstanding, to furnish each
Underwriter copies of all reports or other communications (financial or
other) furnished to Noteholders or Certificateholders, and to deliver to
the Underwriters during such same period (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed with
the Commission and (ii) such additional information concerning the business
and financial condition of the Depositor and the Trust as such Underwriter
may from time to time reasonably request.
(h) To pay all expenses incident to the performance of the obligations
under this Agreement, including:
(i) the word processing, printing and filing of the Registration
Statement as originally filed and of each amendment thereto;
(ii) the reproduction of this Agreement;
(iii) the preparation, printing, issuance and delivery of the
Securities to the Underwriters;
(iv) the fees and disbursements of counsel and accountants for
such Participating Entity;
(v) the qualification of the Securities 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 a 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 a legal investment
memorandum;
(vii) the printing and delivery to the Underwriters of copies of
the Registration Statement as originally filed and of each amendment
thereto, of the preliminary prospectuses, and of the Prospectus and
any amendments or supplements thereto;
(viii) the printing and delivery to the Underwriters of copies of
a blue sky survey and, if requested by the Representative, a legal
investment memorandum, if any;
(ix) the fees of [Xxxxx'x Investors Service, Inc. and Standard &
Poor's Ratings Services] for rating the Securities; and
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(x) the fees and expenses of the Owner Trustee, the Indenture
Trustee and their respective counsel.
If the sale of the Securities is not consummated by reason of any failure,
refusal or inability on the part of any Participating Entity 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 Participating Entity 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 any Participating Entity.
(i) For a period from the date of this Agreement until the retirement
of the Securities, or until such time as each Underwriter shall cease to
maintain a secondary market in the Securities, whichever occurs first, to
deliver to each Underwriter the annual statements of compliance, the
Officer's Certificate and the annual independent certified public
accountants' servicing reports furnished pursuant to the Transfer and
Servicing Agreement and the monthly Servicer's Certificate pursuant to the
Transfer and Servicing Agreement as soon as such statements and reports are
furnished to the Indenture Trustee.
(j) From and after the Closing Date, not to take any action
inconsistent with the Trust's ownership of the Receivables other than as
permitted by the Transfer and Servicing Agreement.
(k) To the extent, if any, that the rating provided with respect to
the Securities by the rating agency or agencies that initially rate the
Securities is conditional upon the furnishing of documents or the taking of
any other actions by such Participating Entity, to furnish such documents
and take any such other actions.
Section 6. Conditions Precedent to the Obligations of the Underwriters. The
obligation of the Underwriters to purchase and pay for the Securities is subject
to the accuracy of the representations and warranties on the part of each
Participating Entity herein, to the accuracy of the statements of officers of
each Participating Entity made pursuant to the provisions hereof, to the
performance by each Participating Entity of its obligations hereunder and to the
following additional conditions precedent:
(a) The Registration Statement shall have become effective; and prior
to the Closing Date no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of any
Participating Entity, shall be contemplated by the Commission. If the
Depositor has elected to rely upon Rule 430A of the 1933 Act Regulations,
the price of the Securities and any price-related information previously
omitted from the effective Registration Statement pursuant to such Rule
430A shall have been transmitted
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to the Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations within the prescribed time period, and prior to the Closing
Date the Depositor shall have provided evidence satisfactory to the
Representative of such timely filing, or a post-effective amendment
providing such information shall have been promptly filed and declared
effective in accordance with the requirements of Rule 430A of the 1933 Act
Regulations.
(b) Each Participating Entity shall have delivered to the
Representative a certificate, dated the Closing Date, signed by its
president, a senior vice president or a vice president to the effect that
the signer of such certificate has carefully examined the Registration
Statement, the Prospectus, each Designated Agreement and this Agreement and
that:
(i) the representations and warranties of such Participating
Entity in each Designated Agreement and this Agreement are true and
correct in all material respects at and as of the Closing Date with
the same effect as if made on the Closing Date;
(ii) such Participating Entity has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been initiated or, to knowledge of such Participating
Entity, threatened as of the Closing Date; and
(iv) nothing has come to such Xxxxxx's attention that would lead
such person to believe that the Prospectus contains any untrue
statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in
the Prospectus as amended or supplemented, there shall not have occurred
any material adverse change or any development involving a prospective
material adverse change, in or affecting particularly the business or
assets of the Trust or any Participating Entity or any material adverse
change in the financial position or results or operations of the Trust or
any Participating Entity otherwise than as set forth or contemplated in the
Prospectus which in any such case makes it impracticable to inadvisable in
the Representative's reasonable judgment to proceed with the public
offering or the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented.
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(d) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business, financial
condition or properties of any Participating Entity or the Trust which, in
the Representative's judgment, materially impairs the investment quality of
the Securities, (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 the Securities or to
enforce contracts for the sale of the Securities, (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, California or New York authorities or (iv) any event
that would constitute a default under this Agreement or default in the
performance of the obligations of any Participating Entity under any
Designated Agreement to which it is a party 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 may be
an employee of a Participating Entity) to the Participating Entities, one
or more opinions, dated the Closing Date and addressed to the Underwriters
and satisfactory in form and substance to the Representative and to counsel
to the Representative.
(f) The Representative shall have received from special counsel for
the Participating Entities an opinion, dated the Closing Date and
satisfactory in form and substance to the Representative and to counsel to
the Underwriters.
(g) The Representative shall have received from special counsel to
the Depositor, an opinion, dated the Closing Date, addressed to the
Underwriters and satisfactory in form and substance to the Representative
and to counsel to the Underwriters, relating to certain bankruptcy matters
and federal income tax matters.
(h) The Representative shall have received from counsel for the Owner
Trustee, an opinion, dated the Closing Date and addressed to the
Underwriters and each Participating Entity and satisfactory in form and
substance to the Representative and to counsel to the Underwriters.
[(i) The Representative shall have received an officer's certificate
dated the Closing Date of the chairman of the board, the president, an
executive vice president or the treasurer of the Owner Trustee in which
such officer shall state that, to the best of his/her knowledge after
reasonable investigation, the representations and warranties of the Owner
Trustee contained in the Trust Agreement are true and correct in all
material respects, and that the Owner Trustee has complied in all material
respects with all
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agreements and satisfied all conditions on its part to be performed or
satisfied under the Trust Agreement at or prior to the Closing Date.]
(j) The Representative shall have received from counsel for the
Indenture Trustee, an opinion, dated the Closing Date and addressed to the
Underwriters, each Participating Entity and satisfactory in form and
substance to the Representative and to counsel to the Underwriters.
[(k) The Representative shall have received an officer's certificate
dated the Closing Date of the chairman of the board, the president, an
executive vice president or the treasurer of the Indenture Trustee in which
such officer shall state that, to the best of his/her knowledge after
reasonable investigation, the representations and warranties of the
Indenture Trustee contained in the Indenture are true and correct in all
material respects, and that the Indenture Trustee has complied in all
material respects with all agreements and satisfied all conditions on its
part to be performed or satisfied under the Indenture at or prior to the
Closing Date.]
(l) The Representatives shall have received a copy of a ratings
letter confirming that the Offered Notes have been rated in the highest
rating category by at least one of [Xxxxx'x Investors Service, Inc. and
Standard & Poor's Ratings Services], and such ratings shall not have been
reduced or withdrawn and that the Offered Certificates have been rated in
[one of the four highest rating categories] by at least one of [Xxxxx'x
Investors Service, Inc. and Standard & Poor's Ratings Service], and such
ratings shall not have been reduced or withdrawn.
(m) The Owner Trustee shall have furnished to the Representative a
certificate of the Owner Trustee, signed by one or more duly authorized
officers of the Owner Trustee, dated the Closing Date, as to the due
acceptance of the Trust Agreement by the Owner Trustee and the due
execution and delivery of the Offered Certificates by the Owner Trustee
thereunder and such other matters as the Representative shall reasonably
request.
(n) The Indenture Trustee shall have furnished to the Representative
a certificate of the Indenture Trustee, signed by one or more duly
authorized officers of the Indenture Trustee, dated the Closing Date, as to
the due acceptance of the Indenture by the Indenture Trustee and the due
execution and delivery of the Offered Notes by the Indenture Trustee
thereunder and such other matters as the Representative shall reasonably
request.
(o) Counsel to each Participating Entity shall have furnished to the
Representative any opinions supplied to the rating agencies relating to
certain matters with respect to the Securities, 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 Closing Date.
-12-
(p) The Representative shall have received a letter, dated the
Closing Date and addressed to the Underwriters, from KPMG Peat Marwick LLP
certified public accountants, substantially in the form heretofore approved
by the Representative and counsel to the Underwriters.
(q) The Representative shall have received a copy of [(i) a file-
stamped acknowledgment copy of the UCC-1 financing statement on Form UCC-1
filed with the Secretary of State of the State of Missouri with respect to
the transfer of Receivables (and related items) by DFS to Ganis pursuant to
the DFS/Ganis Transfer Agreement, naming DFS as debtor/transferor and Ganis
as the secured party/transferee,] (ii) a file-stamped acknowledgment copy
of the UCC-1 financing statement on Form UCC-1 filed with the Secretary of
State of the State of California with respect to the transfer of
Receivables (and related items) by Ganis to the Depositor pursuant to the
Ganis/Depositor Transfer Agreement, naming Ganis as debtor/transferor and
the Depositor as the secured party/transferee, (iii) a file-stamped
acknowledgment copy of the UCC-1 financing statement on Form UCC-1 filed
with the Secretary of State of the State of Missouri with respect to the
transfer of Receivables (and related items) by the Depositor to the Trust
pursuant to the Transfer and Servicing Agreement, naming the Depositor as
debtor/transferor and the Trust as secured party/transferee, and (iv) a
file-stamped acknowledgment copy of the UCC-1 financing statement on Form
UCC-1 filed with the Secretary of State of the State of [ ]
with respect to the pledge of Receivables (and related items) by the
Trust to the Indenture Trustee pursuant to the Indenture, naming the Trust
as debtor and the Indenture Trustee as secured party.
(r) All documents incident to the Designated Agreements and this
Agreement shall be reasonably satisfactory in form and substance to the
Underwriters and counsel to the Underwriters; and all actions taken by the
Depositor to authorize the offering and sale of the Securities shall be
reasonably satisfactory in form and substance to the Underwriters and
counsel to the Underwriters; and each Participating Entity shall furnish
the Underwriters and counsel to the Underwriters with such other opinions,
certificates, letters and documents as the Underwriters or counsel to the
Underwriters shall reasonably request.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representative by notice to the Depositor at any time on or prior to 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. (a) Each Participating Entity 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
-13-
fact contained in the Registration Statement (or any amendment thereto), or
the omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading, or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any amendment
or supplement thereto) or any preliminary prospectus, 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 such Participating Entity; and
(iii) against any and all expense whatsoever (including, subject to
Section 7(c) hereof, the fees and disbursements of counsel chosen by you)
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, to the extent that any such expense is
not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to 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 [(x) the chart immediately
following the first paragraph set forth under the heading "Underwriting" and (y)
the third textual paragraph set forth under the heading "Underwriting."]
(b) Each Underwriter severally agrees to indemnify and hold harmless
each Participating Entity, each of their respective directors, each of their
respective officers who signed the Registration Statement, and each person, if
any, who controls each Participating Entity, respectively, within the meaning of
Section 15 of the Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section
7, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto, or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Depositor by such Underwriter through the
Representative expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
-14-
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it with respect to which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve it from any liability which
it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any such
action. In no event shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
Section 8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 7 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, each Participating Entity,
jointly and severally, on the one hand, and the Underwriters, on the other,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by any
such Participating Entity and one or more Underwriters, as incurred, in such
proportions that the Underwriters are responsible for that portion represented
by the percentage that the underwriting discount bears to the initial public
offering price, and each Participating Entity shall be jointly and severally
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Notwithstanding the other provisions of this
Section 8, an Underwriter shall not be required to contribute any amount in
excess of the amount by which the total price at which the 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. 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 director
of the Depositor, each officer of the Depositor who signed the Registration
Statement, and each person, if any, who controls any Participating Entity within
the meaning of Section 15 of the Act shall have the same rights to contribution
as each Participating Entity.
Section 9. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
each Participating Entity or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation or statement as to the results thereof, made by
or on behalf of any Underwriter, any Participating Entity or any of their
respective representatives, officers or directors of any controlling person, and
will survive delivery of and payment for the Securities.
Section 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail on the Closing Date to purchase the Securities which
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-
-15-
defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not exceed
10% of the principal amount of the Securities, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all non-
defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds 10% of
the principal amount of the Securities, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representative or the Depositor shall have the right
to postpone Closing Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements.
Section 11. Notices. All communications hereunder will be in writing and:
(i) if sent to the Underwriters, will be mailed, delivered or
sent by facsimile transmission and confirmed to the Representative at:
Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone: 212/000-0000
Facsimile: 212/469-7185;
(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
000 Xxxxxxxxx Xxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: President
Telephone:
Facsimile:
-16-
[(iii) if sent to DFS, will be mailed, delivered or sent by
facsimile transmission, and confirmed to it at:
Deutsche Financial Services Corporation
000 Xxxxxxxxx Xxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Senior Vice President
Telephone: 314/000-0000
Facsimile: 314/523-3993]
(iv) if sent to Ganis, will be mailed, delivered or sent by
facsimile transmission, and confirmed to it at:
Ganis Credit Corporation
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Executive Vice President
Telephone:
Facsimile:
or to such other address as any Participating Entity or the Representative may
designate in writing to the other parties hereto.
Section 12. Successors. This Agreement will inure to the benefit of and
be binding upon the Underwriters, each Participating Entity and their respective
successors and the officers and directors and controlling persons referred to in
Section 7 hereof, and no other Person will have any right or obligations
hereunder.
Section 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 14. Counterparts. This Agreement may be executed by each of the
parties hereto in any number of counterparts, and by each of the parties hereto
on separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
-17-
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 among the Underwriters and each
Participating Entity.
Very truly yours,
DEUTSCHE RECREATIONAL ASSET
FUNDING CORPORATION
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
[DEUTSCHE FINANCIAL SERVICES CORPORATION
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title: ]
-18-
GANIS CREDIT CORPORATION
By:
--------------------------------
Name:
Title:
Accepted in New York, New York,
as of the date first above written:
DEUTSCHE BANK SECURITIES INC.
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
For itself and as Representative
of the other Underwriters named in
Schedule A hereto.
-19-
SCHEDULE A
Principal Principal Principal
Amount of Amount of Amount of
Name of Underwriter Class A Notes Class B Notes Certificates
Deutsche Bank Securities Inc................ $ $ $
________________________.................... $ $ $
________________________.................... $ $ $
________________________.................... $ $ $
________________________.................... $ $ $
--------------------------------------------------------------------------------------------------
Total $ $ $
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