Exhibit 1.1
CDF FINANCING, L.L.C.
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
Asset Backed Certificates
UNDERWRITING AGREEMENT
April 8, 2003
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. CDF Financing, L.L.C., a Delaware limited
liability company (the "Transferor"), 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 Amended and Restated Pooling and Servicing
Agreement dated as of April 1, 2000, as amended by the First Omnibus Amendment
thereto dated as of December 31, 2002, and as further amended by the Second
Omnibus Amendment thereto dated as of April 1, 2003, among the Transferor, GE
Commercial Distribution Finance Corporation, as servicer ("CDF" or the
"Servicer"), and the trustee specified therein (the "Trustee") (as the same may
be supplemented, amended or otherwise modified from time to time, and including
the supplement for the related Series, the "Pooling and Servicing Agreement").
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 Transferor
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 Transferor 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 Transferor 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 CDF and the
Transferor. Each of CDF and the Transferor, 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 (No. 333-84458), including a prospectus and any
amendments thereto, has been filed with the Securities and Exchange Commission
(the "Commission") for 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
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the Exchange Act after the Effective Date or the issue date of the Prospectus or
Prospectus Supplement, as the case may be, deemed to be incorporated therein by
reference pursuant to Item 12 of Form S-3 under the Act.
(b) The related Registration Statement, at the time it became
effective, and the prospectus contained therein, and any amendments thereof and
supplements thereto filed prior to the date of the related Terms Agreement,
conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder (the "Rules and Regulations"); on
the date of the related Terms Agreement and on the related Closing Date, the
Registration Statement, the Prospectus and the related Prospectus Supplement,
and any amendments thereof and supplements thereto, will conform in all material
respects to the requirements of the Act and the Rules and Regulations; such
Registration Statement, at the time it became effective, did not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
such Prospectus and Prospectus Supplement, on the date of any filing pursuant to
Rule 424(b) and on the related Closing Date, will not include any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they are
made, not misleading; provided, however, that neither CDF nor the Transferor
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 Transferor 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) CDF is a corporation duly incorporated, validly existing and
in good standing under the laws of the state of its incorporation, the
Transferor is a limited liability company duly formed, validly existing and in
good standing under the laws of its state of formation, and each of CDF and the
Transferor 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 CDF and the Transferor 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" and collectively, the
"Agreements"), this Underwriting Agreement and the related Terms Agreement and
to perform their respective obligations hereunder and thereunder.
(e) Each of the Agreements, the related Terms Agreement and this
Underwriting Agreement has been, or will be, duly and validly authorized,
executed and delivered by each of CDF and the Transferor, and each of the
Agreements, the related Terms Agreement and this Underwriting Agreement
constitutes, or will constitute, the valid, legal and binding obligation of each
of CDF and the Transferor, enforceable against each of CDF and the Transferor 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
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 CDF or the Transferor of
any Agreement or Terms Agreement or this Underwriting Agreement nor the
consummation by CDF or the Transferor 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 CDF or the
Transferor (except as required or permitted pursuant thereto or hereto),
pursuant to any material mortgage, indenture, loan agreement, contract or other
instrument to which CDF or the Transferor 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 CDF or the certificate of formation
or limited liability company agreement of the Transferor. Neither CDF nor the
Transferor is in violation of its certificate of incorporation or certificate of
formation, 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 CDF
or the Transferor is a party or of which any property of CDF or the Transferor
is the subject, which if determined adversely to CDF or the Transferor would,
individually or in the aggregate, have a material adverse effect on the
financial position, shareholders' equity or results of operations of CDF or the
Transferor; and to the best of CDF's or the Transferor'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 CDF or the Transferor of any Agreement, Terms Agreement or this
Underwriting Agreement or the performance by CDF or the Transferor 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 CDF or the Transferor to perform its obligations
under any Agreement, Terms Agreement or this Underwriting Agreement.
(j) Each of CDF and the Transferor 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 CDF or the Transferor, and neither CDF nor the Transferor
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) Neither the Transferor nor the Trust is now, and following the
issuance of the Certificates of a Series, neither the Transferor nor the Trust
will be, an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
(l) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
(m) On the related Closing Date, (i) the Transferor 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
Transferor will not have assigned to any person any of its right, title or
interest in such Receivables or in the Agreements other than pursuant to the
Agreements, (iii) the Transferor will have the power and authority to sell such
Receivables to the Trust.
(n) The properties and businesses of each of CDF and the
Transferor conform, and will conform, in all material respects, to the
descriptions thereof contained in the Prospectus and the Prospectus Supplements.
(o) 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 Transferor or CDF.
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
Transferor agrees to sell to each Underwriter, severally and not jointly, and
each Underwriter, severally and not jointly, agrees to purchase from the
Transferor, 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.
(b) Against payment of the purchase price specified in the
applicable Terms Agreement in same day funds drawn to the order of the
Transferor (or paid by such other manner as may be agreed upon by the Transferor
and the Representative), the Transferor will deliver the related Certificates of
a Series to the Underwriters at the offices of ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ & Maw,
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▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at such time as shall be
specified in such Terms Agreement, or at such other place and time as the
Representative and the Transferor 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.
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 CDF and the Transferor. Each of CDF and the
Transferor, jointly and severally, covenants and agrees with each Underwriter:
(a) That immediately following the execution of each Terms
Agreement, the Transferor 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 Transferor, 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 Transferor deem
appropriate in connection with the offering of such Certificates; provided,
however, that each of CDF and the Transferor 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 relating to such Certificates 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 with the Commission any such amendment or supplement to which the
Representative shall reasonably object; and, provided further, that each of CDF
and the Transferor 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 Transferor 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 Transferor
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
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Materials or Structural Term Sheets are delivered to counsel for the Transferor
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
Transferor shall cause any Collateral Term Sheet with respect to the
Certificates of a Series that is delivered by the Representative to the
Transferor 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 Transferor by the Representative. Each
such ABS Filing shall be incorporated by reference in the related Prospectus and
the related Registration Statement.
(c) Promptly from time to time to take such action as the
Representative may reasonably request in order to qualify the 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 CDF nor the Transferor 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 Transferor 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 Transferor 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 Transferor by the
Underwriters pursuant to Section 9(c) hereof or any amendments or supplements of
such Collateral Term Sheets that are furnished to the Transferor 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, on a timely
and complete basis, 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.
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(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 Transferor as such Underwriter may from
time to time reasonably request.
(g) To pay all expenses (other than fees of counsel for the
Underwriters, except as provided below) incident to the performance of the
obligations under this Underwriting Agreement and the related Terms Agreement,
including:
(i) the word processing, printing and filing of the
Registration Statement as originally filed and of each amendment
thereto;
(ii) the reproduction of this Underwriting Agreement, 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 CDF and/or the Transferor;
(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.
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If the sale of the Certificates of a Series is not consummated by
reason of any failure, refusal or inability on the part of CDF or the Transferor
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 CDF and the Transferor 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 CDF or the
Transferor.
(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 CDF and/or the Transferor, 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 Certificates of a
Series is subject to the accuracy of the representations and warranties on the
part of CDF and the Transferor 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 or managers of CDF and the Transferor made pursuant
to the provisions hereof and thereof, to the performance by each of CDF and the
Transferor of its respective 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
CDF or the Transferor, shall be contemplated by the Commission. If the
Transferor 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 Transferor 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.
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(b) Each of CDF and the Transferor 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, senior vice president, vice
president, manager, or other officer or authorized person of CDF or the
Transferor, as applicable, 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 person's knowledge, the
representations and warranties of CDF and/or the Transferor, 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 CDF and the Transferor, 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 CDF's or the Transferor'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 Transferor, CDF or General Electric Capital Corporation ("GECC") or any
material adverse change in the financial position or results or operations of
the Trust, the Transferor, CDF or GECC 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 CDF or the Transferor 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 or escalation 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
10
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 CDF's or the Transferor's 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 CDF and the Transferor, 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 Transferor, 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 CDF and the Transferor, 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 (or its agent, as
applicable), an opinion, dated the related Closing Date, addressed to the
Underwriters, CDF and the Transferor 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, the treasurer or other officer
acceptable to the Representative of the Trustee (or its agent, as applicable) 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 (and its agent, as applicable) shall have
furnished to the Representative a certificate of the Trustee, signed by one or
more duly authorized officers of the Trustee (and its agent, as applicable),
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 (or its agent, as applicable) thereunder and such other
matters as the Representative shall reasonably request.
11
(k) Counsel to CDF and the Transferor 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 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
CDF to the Transferor, identifying such Receivables as collateral and naming CDF
as debtor and the Transferor 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 Transferor to the Trust pursuant to the Agreements, identifying such
Receivables as collateral and naming the Transferor as debtor and the Trust as
the secured party.
(n) All documents incident to the Agreements, the related Terms
Agreement 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 Transferor 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 CDF and/or the
Transferor 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 shall have been
no downgrading, nor shall any notice have 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 Transferor 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 Transferor 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.
12
Section 7. Indemnification and Contribution. (a) Each of CDF and the
Transferor shall, jointly and severally, indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the meaning of
Section 15 of the Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
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 Transferor and
CDF (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 Transferor or CDF 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
Transferor 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 Transferor and CDF, each of their respective directors, each of
their respective officers or managers who signed the Registration Statement, and
each person, if any, who controls the Transferor and CDF, respectively, within
the meaning of Section 15 of the Act, against any and all loss, liability,
13
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 Transferor or CDF
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 Transferor or CDF by such Underwriter
through the Representative pursuant to Section 9 or Section 10, or directly by
such Underwriter, to the extent that such materials were delivered to investors
by such Underwriter, and incorporated by reference in such Registration
Statement or the related Prospectus or any amendment or supplement thereof
(except that no such indemnity shall be available for any losses, claims,
damages or liabilities, or actions in respect thereof, resulting from any Pool
Error).
(c) Each indemnified party shall give prompt notice 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 on account of
this Section 7 except to the extent that such indemnifying party is materially
prejudiced by the indemnified party's failure to provide such notification. An
indemnifying party may participate at its own expense in the defense of such
action. If it so elects within a reasonable time after receipt of such notice,
an indemnifying party, jointly with any other indemnifying parties receiving
such notice, may assume the defense of such action with counsel chosen by it and
approved by the indemnified parties defendant in such action, unless such
indemnified parties reasonably object to such assumption on the ground that
there may be legal defenses available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the indemnifying parties
shall not be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action other than reasonable
costs of investigation. In no event shall the indemnifying parties be liable for
the fees and expenses of more than one 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,
unless (i) if the defendants in any such action include one or more of the
indemnified parties and the indemnifying party, one or more of the indemnified
parties shall have employed separate counsel after having reasonably concluded
that there may be legal defenses available to it or them that are different from
or additional to those available to the indemnifying party or to one or more of
the other indemnified parties, or (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the commencement
of the action. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened action
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from all
liability from any claims that are the subject matter of such action.
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
14
to be unenforceable by the indemnified parties although applicable in accordance
with its terms, the Transferor and CDF, 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 Transferor, CDF 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 Transferor and CDF 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 or manager of the Transferor
or CDF who signed the Registration Statement, and each person, if any, who
controls the Transferor or CDF within the meaning of Section 15 of the Act shall
have the same rights to contribution as the Transferor and CDF.
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 Transferor with the Commission pursuant to Section 5(b)
hereof, the Representative shall deliver to the Transferor and its counsel 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 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 Transferor and its counsel of such
materials, the Representative shall notify, or cause to be notified, the
Transferor 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 Transferor, as of the date of the related Terms Agreement and as of the
related Closing Date, that:
(i) the Computational Materials furnished to the
Transferor 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 Transferor that are required to be filed with the
Commission
15
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
Transferor pursuant to Section 9(a) constitute all of the materials
furnished to prospective investors by such Underwriter prior to the
time of delivery thereof to the Transferor 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 Transferor 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 Transferor and
its counsel by telephone of its intention to deliver such materials and the
approximate date on which the first such delivery of such materials is expected
to occur. Not later than 2 p.m., New York time, on the business day immediately
following the date on which any Collateral Term Sheet was first delivered to a
prospective investor in such Certificates, the Representative shall deliver to
the Transferor and its counsel 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 Transferor as of the date of the related Terms Agreement and as of the
related Closing Date, that the Collateral Term Sheets furnished to the
Transferor 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 Transferor 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.
16
(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 Transferor 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 CDF, the Transferor or their respective officers or managers 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, CDF, the Transferor or any of their respective
representatives, officers, managers 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 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.
17
In the event of any such default which does not result in a termination
of the related Terms Agreement, either the Representative or the Transferor
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:
▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
(ii) if sent to the Transferor, will be mailed, delivered
or sent by facsimile transmission, and confirmed to it at:
CDF Financing, L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
with a copy to:
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ & Maw
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
18
GE Capital Markets Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if sent to CDF, will be mailed, delivered or sent by
facsimile transmission, and confirmed to it at:
GE Commercial Distribution Finance Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
or to such other address as CDF, the Transferor 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, CDF and the Transferor and
their respective successors and the officers, managers 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,
WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. 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 Transferor or the Trust
to invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Transferor or the Trust under any
federal or state bankruptcy, insolvency or similar law, or appointing a
19
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Transferor or the Trust or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Transferor 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.
20
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, whereupon this letter and your acceptance
hereof shall constitute a binding agreement among the Underwriters, the
Transferor and CDF.
Very truly yours,
CDF FINANCING, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager
GE COMMERCIAL DISTRIBUTION FINANCE
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. Bay
-----------------
Name: ▇▇▇▇▇▇ ▇. Bay
Title: Attesting Secretary
Accepted in New York, New York,
as of the date hereof:
DEUTSCHE BANK SECURITIES INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Acting on behalf of itself and, if applicable,
as the Representative of the Underwriters
named in the related Terms Agreement.
EXHIBIT A
CDF FINANCING, L.L.C.
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
Asset Backed Certificates
TERMS AGREEMENT
[Date]
To: CDF Financing, L.L.C.
Re: Underwriting Agreement dated as of April 8, 2003 (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 333-84458.
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 Transferor 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 Transferor 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 Transferor will deliver the Offered Certificates to the
Underwriters against payment therefor.
Underwriter-Provided Information: The Transferor and CDF 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, CDF Financing, L.L.C. and GE Commercial
Distribution Finance 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:
CDF FINANCING, L.L.C.
By: ___________________________________
Name:
Title:
GE COMMERCIAL DISTRIBUTION FINANCE
CORPORATION
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. CDF 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 Transferor is a limited liability company 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 Transferor 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. CDF and the Transferor 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), the Terms Agreement
and the Underwriting Agreement has been duly and validly authorized, executed
and delivered by each of CDF and the Transferor, and each constitutes the valid,
legal and binding obligation of each of CDF and the Transferor, enforceable
against each of CDF and the Transferor 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 CDF or the Transferor of
any Agreement (as applicable), a Terms Agreement or the Underwriting Agreement
nor the consummation of CDF or the Transferor 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 CDF or the
Transferor (except as required or permitted pursuant thereto) pursuant to any
indenture, mortgage, contract or other instrument to which CDF or the Transferor
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 CDF or the
certificate of formation or limited liability company agreement of the
Transferor. 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, Delaware or Missouri state 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 CDF or the Transferor 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 CDF or the Transferor 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 CDF or the Transferor 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 CDF or the
Transferor of the Agreements (as applicable), a Terms Agreement or of the
Underwriting Agreement or the performance by CDF or the Transferor 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 CDF and the Transferor 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 CDF or the Transferor,
and neither CDF nor the Transferor 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 CDF and the Transferor 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 CDF to the Transferor pursuant to the
Agreements have been made and 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 Transferor pursuant to the Agreements.
16. Immediately prior to the transfer of the related Receivables
to the Trust, the Transferor 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 Transferor'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 Transferor 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 Transferor 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 Transferor 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/Agent] 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. The Agency Agreement dated as of July 17, 2001, as amended by
the First Amendment thereto dated as of December 31, 2002 (together, the "Agency
Agreement"), between the Trustee and Deutsche Bank Trust Company Americas
(formerly known as Bankers Trust Company), as agent (the "Agent"), has been duly
executed and delivered by the Agent and the Trustee, and constitutes a legal,
valid and binding obligation of the Agent and the Trustee, enforceable against
the Agent and 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. Each Agreement has been duly executed and delivered by the
Trustee [(whether directly or through its Agent)], 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 Transferor and CDF
(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.
4. The related Certificates have been duly executed,
authenticated and delivered by the Trustee [(whether directly or through its
Agent)] in accordance with the Pooling and Servicing Agreement.
5. 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.