Exhibit 1.1
CDF FINANCING, L.L.C.
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
Asset Backed Certificates
UNDERWRITING AGREEMENT
[DATE]
[NAME OF LEAD UNDERWRITER]
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")
[Address]
Ladies and Gentlemen:
Section 1. Introductory. CDF Financing, L.L.C., a Delaware limited
liability company (the "Depositor" or "Seller"), proposes to sell Asset Backed
Certificates (the "Certificates" or the "Securities") 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 as amended and restated as of April 1, 2000 (as
the same may be amended, amended and restated or otherwise modified from time to
time, the "Pooling and Servicing Agreement") among the Seller, GE Commercial
Distribution Finance Corporation, as Servicer, and the trustee specified therein
(the "Trustee"). Each Certificate will represent a fractional undivided interest
in the related Trust. The assets of the Trust (the "Trust Property") will
include, among other things, a pool of dealer floorplan receivables (the
"Receivables")
The Securities are more fully described in the Registration Statement (as
defined herein). Each Series of Securities and any classes of Securities (each,
a "Class") within such Series may vary as to, among other things, number and
types of Classes, principal amount and interest rate.
Each offering of the Securities to which this Underwriting Agreement
applies will be made pursuant to the Registration Statement through the
Representative or through an underwriting syndicate managed by the
Representative. Whenever the Seller determines to make such an offering of
Securities of a Series, it will enter into an appropriate agreement (the "Terms
Agreement"), a form of which is attached hereto as Exhibit A, providing for the
sale of certain classes of such Securities to, and the purchase and offering
thereof by, the Representative and such other underwriters, if any, as have
authorized the Representative to enter into such Terms Agreement on their behalf
(the "Underwriters," which term shall include the Representative, whether acting
alone in the sale of such Securities, in which case any reference herein to the
Representative shall be deemed to refer to the Representative in its individual
capacity as
Underwriter of the Securities, or as a member of an underwriting syndicate).
Such Terms Agreement shall specify the principal amount of each Class of the
Securities to be issued, the Classes of Securities subject to this Underwriting
Agreement, the price at which such Classes of Securities are to be purchased by
the Underwriters from the Seller and the initial public offering price or prices
or the method by which the price or prices at which such Securities are to be
sold will be determined.
Each such offering of Securities as to which [ ] is the sole underwriter or
acts as the Representative of the several Underwriters will be governed by this
Underwriting Agreement, as supplemented by the applicable Terms Agreement, and
this Underwriting Agreement and such Terms Agreement shall inure to the benefit
of and be binding upon each Underwriter participating in the offering of such
Securities. This Underwriting Agreement is non-exclusive, and the Seller may
enter into any other underwriting agreement with any other underwriter with
respect to the offering and sale of Securities of a Series.
Section 2. Representations, Warranties and Covenants of CDF and the Seller.
Each of GE Commercial Distribution Finance Corporation ("CDF") and the Seller,
as applicable, represents and warrants to, and agrees with, each Underwriter, as
of the date of the related Terms Agreement, that:
(a) The registration statement specified in the related Terms Agreement, on
Form S-3, including a prospectus, has been filed with the Securities and
Exchange Commission (the "Commission") for the registration under the Securities
Act of 1933, as amended (the "Act"), of the Securities, which registration
statement has been declared effective by the Commission. Such registration
statement, as amended to the date of the related Terms Agreement, including any
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the effective date of the
Registration Statement (as such date is defined in Rule 158(c) under the Act,
the "Effective Date"), is hereinafter called the "Registration Statement," and
such prospectus, as such prospectus is supplemented by a prospectus supplement
relating to the Securities of the related Series, each in the form first filed
after the date of the related Terms Agreement pursuant to Rule 424(b) under the
Act, including any documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Act which were filed under the Exchange Act on or
before the date of such prospectus supplement (such prospectus supplement,
including such incorporated documents, in the form first filed after the date of
the related Terms Agreement pursuant to Rule 424(b) is hereinafter called the
"Prospectus Supplement"), is hereinafter called the "Prospectus" (except where
the context requires otherwise). Any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement, the
Prospectus or the Prospectus Supplement shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date or
the issue date of the Prospectus or Prospectus Supplement, as the case may be,
deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3
under the Act.
(b) The related Registration Statement, at the time it became effective,
and the prospectus contained therein, and any amendments thereof and supplements
thereto filed prior to the date of the related Terms Agreement, conformed in all
material respects to the requirements of the Act and the rules and regulations
of the Commission thereunder (the "Rules and
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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 Seller makes any representations or warranties as to the information
contained in or omitted from (A) such Registration Statement or such Prospectus
(or any supplement thereto) in reliance upon and in conformity with written
information furnished to the Seller by or on behalf of the Underwriters
specifically for use in the preparation thereof as specified in the related
Terms Agreement or (B) any ABS Filing (as defined herein), or in any amendment
thereof or supplement thereto, incorporated by reference in such Registration
Statement or such Prospectus (or any amendment thereof or supplement thereto).
(c) CDF is a corporation duly incorporated, validly existing and in good
standing under the laws of the state of its incorporation, the Seller is a
limited partnership duly formed, validly existing and in good standing under the
laws of its state of formation, and each of CDF and the Seller is duly qualified
to transact business and is in good standing in each jurisdiction in the United
States of America in which the conduct of its business or the ownership of its
property requires such qualification, with power to own, lease and operate its
property and conduct its business as it is currently conducted.
(d) Each of CDF and the Seller has, and will have, the requisite power to
execute and deliver each this Underwriting Agreement and each agreement and
document executed by either of them in connection with the issuance and sale of
the related Securities (each, an "Agreement") (as applicable) and Terms
Agreement and to perform their respective obligations hereunder and thereunder.
(e) Each of the Agreements (as applicable), Terms Agreements and this
Underwriting Agreement has been, or will be, duly and validly authorized,
executed and delivered by each of CDF and the Seller, and each of the Agreements
(as applicable), Terms Agreements and this Underwriting Agreement constitutes,
or will constitute, the valid, legal and binding obligation of each of CDF and
the Seller, enforceable against each of CDF and the Seller in accordance with
its terms.
(f) The Securities of each Series conform, or will conform as of the
related Closing Date, to the description thereof contained in the Registration
Statement, the Prospectus, and the related Prospectus Supplement; and the
Securities of such Series, on the related Closing Date, will have been duly and
validly authorized and, when such Securities are duly and validly executed,
issued and delivered in accordance with the related Agreement, and sold to the
Underwriters as provided herein and in the related Terms Agreement, will each be
validly issued and outstanding and entitled to the benefits of such, Agreement.
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(g) Neither the execution and delivery by CDF or the Seller of any
Agreement (as applicable), Terms Agreement or this Underwriting Agreement nor
the consummation by CDF or the Seller of the transactions contemplated herein or
therein, nor the issuance of the Securities of a Series by a Trust or the public
offering thereof as contemplated in the Prospectus and the applicable Prospectus
Supplement, will conflict in any material respect with or result in a material
breach of, or constitute a material default (with notice or passage of time or
both) under, or result in the imposition of any lien, pledge, charge,
encumbrance, adverse claim or other security interest of any other person
(collectively, "Liens") upon any of the property or assets of CDF or the Seller
(except as required or permitted pursuant thereto or hereto), pursuant to any
material mortgage, indenture, loan agreement, contract or other instrument to
which CDF or the Seller is party or by which either of them is bound, nor will
such action result in any violation of any provisions of any applicable law,
administrative regulation or administrative or court decree, the certificate of
incorporation or by-laws of CDF or the certificate of formation or limited
liability company agreement of the Seller. Neither CDF nor the Seller is in
violation of its certificate of incorporation or certificate of limited
partnership, as applicable, in default in any material respect in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease, trust agreement, transfer and servicing agreement or other instrument to
which it is a party or by which it may be bound, or to which any material
portion of its property or assets is subject.
(h) No legal or governmental proceedings are pending to which CDF or the
Seller is a party or of which any property of CDF or the Seller is the subject,
which if determined adversely to CDF or the Seller would, individually or in the
aggregate, have a material adverse effect on the financial position,
shareholders' equity or results of operations of CDF or the Seller; and to the
best of CDF's or the Seller's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(i) No consent, approval, authorization or order of, or registration,
filing or declaration with, any court or governmental agency or body is
required, or will be required, in connection with (i) the execution and delivery
by CDF or the Seller of any Agreement (as applicable), Terms Agreement or this
Underwriting Agreement or the performance by CDF or the Seller of any Agreement
(as applicable), Terms Agreement or this Underwriting Agreement or (ii) the
offer, sale or delivery of the Securities of any Series, except such as shall
have been obtained or made, as the case may be, or will be obtained or made, as
the case may be, prior to the applicable Closing Date, or will not materially
adversely affect the ability of CDF or the Seller to perform its obligations
under any Agreement (as applicable), Terms Agreement or this Underwriting
Agreement.
(j) Each of CDF and the Seller possesses, and will possess, all material
licenses, certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct the
business now conducted by it and as described in the Prospectus and Prospectus
Supplement, except to the extent that the failure to have such licenses,
certificates, authorities or permits does not have a material adverse effect on
the Securities of any Series or the financial condition of CDF or the Seller,
and neither CDF nor the Seller has received, nor will have received as of each
Closing Date, any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which, singly
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or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the conduct of its business,
operations or financial condition.
(k) On the related Closing Date, (i) the Seller or the Trust will have good
and marketable title to the related Receivables, free and clear of any Lien,
except to the extent permitted in the applicable Agreement, (ii) the Seller will
not have assigned to any person any of its right, title or interest in such
Receivables or in the applicable Agreement, and (iii) the Seller will have the
power and authority to sell such Receivables to the Trust.
(l) The properties and businesses of each of CDF and the Seller conform,
and will conform, in all material respects, to the descriptions thereof
contained in the Prospectus and the Prospectus Supplements.
(m) Since the date as of which information is given in the Registration
Statement, there has not been any material adverse change in the business or net
worth of the Seller or CDF.
Section 3. Purchase, Sale and Delivery of Securities. (a) On the basis of
the representations, warranties and agreements contained in this Underwriting
Agreement and in the Terms Agreement for a particular offering of Securities,
but subject to the terms and conditions set forth in this Underwriting Agreement
and subject to the execution of such Terms Agreement, the Seller agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Seller, the respective original
principal amounts of the related Securities set forth in the related Terms
Agreement opposite the name of such Underwriter, plus any additional original
principal amount of Securities which such Underwriter may be obligated to
purchase pursuant to Section 12 hereof, at the purchase price therefor set forth
in such Terms Agreement.
The parties hereto agree that settlement for all securities sold pursuant
to this Underwriting Agreement shall take place on the terms set forth herein
and not as set forth in Rule 15c6-1(a) under the Exchange Act.
(a) Against payment of the purchase price specified in the applicable Terms
Agreement in same day funds drawn to the order of the Seller (or paid by such
other manner as may be agreed upon by the Seller and the Representative), the
Seller will deliver the related Securities of a Series to the Underwriters at
the offices of Mayer, Brown, Xxxx & Maw, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000 at such time as shall be specified in such Terms Agreement, or at
such other place and time as the Representative and the Seller shall agree upon,
each such time being herein referred to as a "Closing Date." The Securities of
each Series will initially be in definitive, fully registered form or will be
maintained through the facilities of The Depository Trust Company, as indicated
in the applicable Prospectus Supplement.
Section 4. Public Offering of Securities. It is understood by the parties
hereto that, after the Registration Statement becomes effective, the
Underwriters propose to offer the Securities for sale to the public (which may
include selected dealers), as set forth in the Prospectus.
Section 5. Covenants of CDF and the Seller. Each of CDF and the Seller
jointly and severally covenants and agrees with each Underwriter:
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(a) That immediately following the execution of each Terms Agreement, the
Seller shall prepare a Prospectus Supplement setting forth the amount of
Securities covered thereby and the terms thereof not otherwise specified in the
Prospectus, the price at which such Securities are to be purchased by the
Underwriters from the Seller, either the initial public offering price or the
method by which the price at which such Securities are to be sold will be
determined, the selling concessions and reallowances, if any, and such other
information as the Representative and the Seller deem appropriate in connection
with the offering of such Securities; provided, however, that each of CDF and
the Seller shall make no amendment or supplement to the Registration Statement
affecting or relating to any material extent to the Securities of a Series to
which this Underwriting Agreement relates, and shall make no amendment or
supplement to the Prospectus or the Prospectus Supplement without furnishing the
Representative with a copy of the proposed form thereof and providing the
Representative with a reasonable opportunity to review the same, and shall not
file any such amendment or supplement to which the Representative shall
reasonably object; and, provided further, that each of CDF and the Seller shall
advise the Representative, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or the Prospectus Supplement or
any amended Prospectus or Prospectus Supplement has been filed or mailed for
filing, of the issuance of any stop order by the Commission, of the suspension
of the qualification of the Securities of a Series for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement, the Prospectus or the Prospectus Supplement or
for additional information; and, in the event of the issuance of any such stop
order or of any order preventing or suspending the use of any Prospectus or
Prospectus Supplement relating to the Securities of a Series or suspending any
such qualification, promptly shall use its best efforts to obtain its
withdrawal.
(b) That the Seller shall cause any Computational Materials and any
Structural Term Sheets (each as defined herein) with respect to the Securities
of a Series that are delivered by an Underwriter to the Seller pursuant to
Section 9 to be filed with the Commission on a Current Report on Form 8-K (an
"ABS Filing") pursuant to Rule 13a-11 under the Exchange Act on the business day
immediately following the later of (i) the day on which such Computational
Materials and Structural Term Sheets are delivered to counsel for the Seller by
an Underwriter prior to 1:00 p.m. New York time and (ii) the date on which the
related Prospectus Supplement is first made available to the public. The Seller
shall cause any Collateral Term Sheet with respect to the Securities of a Series
that is delivered by the Representative to the Seller in accordance with the
provisions of Section 10 to be filed with the Commission on an ABS Filing
pursuant to Rule 13a-11 under the Exchange Act on the business day immediately
following the day on which such Collateral Term Sheet is delivered to counsel
for the Seller by the Representative. Each such ABS Filing shall be incorporated
by reference in the related Prospectus and the related Registration Statement.
(c) Promptly from time to time to take such action as the Representative
may reasonably request in order to qualify the Securities of a Series for
offering and sale under the securities laws of such states as the Representative
may request and to continue such qualifications in effect so long as necessary
under such laws for the distribution of such Securities; provided, that in
connection therewith neither CDF nor the Seller shall be required to
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qualify as a foreign corporation to do business or to file a general consent to
service of process in any jurisdiction.
(d) To furnish to each Underwriter copies of the Registration Statement
(one of which will be signed and will include all exhibits), each related
preliminary prospectus, the Prospectus, and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as such
Underwriter may from time to time reasonably request; and, if the delivery of a
Prospectus or Prospectus Supplement shall be at the time required by law in
connection with sales of the Securities of a Series and either (i) any event
shall have occurred as a result of which the Prospectus or Prospectus Supplement
would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or (ii) for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or Prospectus Supplement, to notify the Representative
and to prepare and furnish to the Representative as the Representative may from
time to time reasonably request an amendment or a supplement to the Prospectus
or Prospectus Supplement which will correct such statement or omission or effect
such compliance, or if it is necessary at any time to amend or supplement the
Prospectus or Prospectus Supplement to comply with the Act or the Rules and
Regulations, the Seller will promptly prepare and file with the Commission an
amendment or supplement that will correct such statement or omission or an
amendment that will effect such compliance; provided, however, that the Seller
will not be required to file any such amendment or supplement with respect to
any Computational Materials, Structural Term Sheets or Collateral Term Sheets
incorporated by reference in the Prospectus other than any amendments or
supplements of such Computational Materials or Structural Term Sheets that are
furnished to the Seller by the Underwriters pursuant to Section 9(c) hereof or
any amendments or supplements of such Collateral Term Sheets that are furnished
to the Seller by the Underwriters pursuant to Section 10(c) hereof which are
required to be filed in accordance therewith.
(e) To file or cause to be filed with the Commission all reports required
to be filed with respect to each Series pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act.
(f) So long as any of the Securities of a Series are outstanding, to
furnish each Underwriter copies of all reports or other communications
(financial or other) furnished to holders of such Securities, and to deliver to
the Underwriters during such same period (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed with the
Commission and (ii) such additional information concerning the business and
financial condition of the Seller as such Underwriter may from time to time
reasonably request.
(g) To pay all expenses (other than fees of counsel for the Underwriters,
except as provided below) incident to the performance of the obligations under
this Underwriting Agreement and the related Terms Agreement, including:
(i) the word processing, printing and filing of the Registration
Statement as originally filed and of each amendment thereto;
(ii) the reproduction of this Underwriting Agreement and the related
Terms Agreement;
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(iii) the preparation, printing, issuance and delivery of the
Securities of each Series to the Underwriters;
(iv) the fees and disbursements of counsel and accountants for CDF
and/or the Seller;
(v) the qualification of the Securities of a Series under securities
laws in accordance with the provisions of Section 5(c) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey;
(vi) if requested by the Representative, the determination of the
eligibility of the Securities for investment and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and
in connection with the preparation of the Legal Investment Memorandum;
(vii) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto,
of the preliminary prospectuses, and of the Prospectus and Prospectus
Supplement and any amendments or supplements thereto;
(viii) the printing and delivery to the Underwriters of copies of the
Blue Sky Survey and, if requested by the Representative, the Legal
Investment Memorandum, if any;
(ix) the fees of any rating agency rating the Securities of a Series;
and
(x) the fees and expenses of each Trustee and its counsel.
If the sale of the Securities of a Series is not consummated by reason of
any failure, refusal or inability on the part of CDF or the Seller to perform
any agreement on its part to be performed, or because any condition of the
Underwriters' obligations hereunder required to be fulfilled shall not have been
fulfilled (other than as a result of any breach or default by the Underwriters),
each of CDF and the Seller shall jointly and severally be obligated to reimburse
the Underwriters for all out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Underwriters. For purposes of the preceding
sentence, the conditions in clauses (ii) and (iii) of Section 6(d) shall not be
conditions required to be fulfilled by CDF or the Seller.
(h) So long as the Securities of a Series are outstanding, or until such
time as each Underwriter shall cease to maintain a secondary market in such
Securities, whichever occurs first, to deliver to each Underwriter all
statements and reports furnished to the Trustee pursuant the applicable
Agreement, as soon as such statements and reports are furnished to such Trustee.
(i) From and after the related Closing Date, not to take any action
inconsistent with the Trust's ownership of the related Receivables other than as
permitted by the applicable Agreement.
(j) To the extent, if any, that the rating provided with respect to any
Class of Securities of a Series by a rating agency or agencies that initially
rate such Securities is
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conditional upon the furnishing of documents or the taking of any other actions
by CDF and/or the Seller, to furnish such documents and take any such other
actions.
(k) That during the period when a prospectus is required by law to be
delivered in connection with the sale of the Securities of a Series pursuant to
this Underwriting Agreement and the related Terms Agreement, the Seller will
file, or cause the Trustee to file on behalf of the Trust, on a timely and
complete basis, all documents that are required to be filed by such Trust with
the Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
Section 6. Conditions Precedent to the Obligations of the Underwriters. The
obligation of the Underwriters to purchase and pay for the Securities of a
Series is subject to the accuracy of the representations and warranties on the
part of CDF and the Seller herein and in the related Terms Agreement as of the
respective dates thereof and the related Closing Date, to the accuracy of the
statements of officers of CDF and the Seller made pursuant to the provisions
hereof and thereof, to the performance by each of CDF and the Seller of its
obligations hereunder and thereunder and to the following additional conditions
precedent:
(a) The Registration Statement shall have become effective not later than
4:00 p.m., New York time, on the day following the date of this Underwriting
Agreement or such later date as shall have been consented to by the
Representative; and prior to the related Closing Date no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
CDF or the Seller, shall be contemplated by the Commission. If the Seller has
elected to rely upon Rule 430A of the Rules and Regulations, the price of the
Securities of a Series and any price-related information previously omitted from
the effective Registration Statement pursuant to such Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules
and Regulations within the prescribed time period, and prior to the related
Closing Date the Seller shall have provided evidence satisfactory to the
Representative of such timely filing, or a post-effective amendment providing
such information shall have been promptly filed and declared effective in
accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) Each of CDF and the Seller shall have delivered on or before the
related Closing Date to the Representative a certificate, dated as of such
Closing Date, signed by the president, a senior vice president or a vice
president of CDF or a manager of the Seller, as the case may be, to the effect
that the signer of such certificate has carefully examined the Registration
Statement, the Prospectus, each related Agreement and this Underwriting
Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and
warranties of CDF and/or the Seller, as the case may be, in this
Underwriting Agreement and the related Terms Agreement are true and correct
in all material respects at and as of such Closing Date with the same
effect as if made on such Closing Date;
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(ii) each of CDF and the Seller, as the case may be, has complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or, to CDF's or the Seller's knowledge, threatened as of such
Closing Date; and
(iv) nothing has come to such person's attention that would lead such
person to believe that the Prospectus as amended and supplemented as of
such Closing Date contains any untrue statement of a material fact or omits
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(c) Since the respective dates as of which information is given in the
Prospectus and Prospectus Supplement, there shall not have occurred any material
adverse change or any development involving a prospective material adverse
change in or affecting particularly the business or assets of the related Trust,
the Seller or CDF or any material adverse change in the financial position or
results or operations of such Trust, the Seller or CDF otherwise than as set
forth or contemplated in the Prospectus and Prospectus Supplement, which in any
such case makes it impracticable or inadvisable in the Representative's judgment
to proceed with the public offering or the delivery of the related Securities on
the terms and in the manner contemplated in the related Terms Agreement and
Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business, financial
condition or properties of CDF or the Seller which, in the Representative's
judgment, materially impairs the investment quality of the related Securities,
(ii) any material adverse change in the financial markets in the United States
or any outbreak 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 Securities or to enforce contracts for the sale of
such 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 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 Seller's
obligations under any related Agreement or which, with the passage of time or
the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be
reasonably satisfactory to the Representative) for CDF and the Seller, an
opinion, dated the related Closing Date, addressed to the Underwriters and
reasonably satisfactory in form and substance to the Representative and to
counsel to the Underwriters.
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(f) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for the Seller, an opinion, dated the
related Closing Date and satisfactory in form and substance to the
Representative and to counsel to the Underwriters, to the effect that the
information in the Prospectus and 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
reasonably satisfactory to the Representative) for CDF and the Seller, an
opinion, dated the related Closing Date, addressed to the Underwriters and
reasonably 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
reasonably satisfactory to the Representative) for the Trustee, an opinion,
dated the related Closing Date, addressed to the Underwriters, CDF and the
Seller and reasonably 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 related Closing Date of the chairman of the board, the president, an
executive vice president or the treasurer of the Trustee in which such officer
shall state that, to the best of his/her knowledge after reasonable
investigation, the representations and warranties of the Trustee contained in
the related Agreement are true and correct in all material respects, and that
such Trustee has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied under the
related Agreement at or prior to such Closing Date.
(j) The Trustee shall have furnished to the Representative a certificate of
the Trustee, signed by one or more duly authorized officers of the Trustee,
dated the related Closing Date, as to the due acceptance of the related
Agreement by the Trustee and the due execution and delivery of the Securities of
such Series by the Trustee thereunder and such other matters as the
Representative shall reasonably request.
(k) Counsel to CDF and the Seller shall have furnished to the
Representative any opinions supplied to the rating agencies relating to certain
matters with respect to the Securities of a Series, which opinions shall also be
addressed to the Underwriters. Drafts of such opinions shall have been furnished
to the Representative no later than five business days prior to the related
Closing Date.
(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 to
CDF and to the Seller and (ii) a file-stamped acknowledgment copy of each UCC-1
financing statement on Form UCC-1
11
appropriately filed with respect to the transfer of the related Receivables by
the Seller to the Trustee pursuant to the related Agreement, identifying such
Receivables as collateral and naming the Seller as debtor and the Trust as the
secured party.
(n) All documents incident to the Agreements, Terms Agreements and this
Underwriting Agreement shall be reasonably satisfactory in form and substance to
the Representative and counsel to the Underwriters; and all actions taken by the
Seller to authorize the offering and sale of the Securities of a Series shall be
reasonably satisfactory in form and substance to the Representative and counsel
to the Underwriters; and CDF and/or the Seller shall furnish the Representative
and counsel to the Underwriters with such other opinions, certificates, letters
and documents as the Representative or counsel to the Underwriters shall
reasonably request.
(o) The Securities of the related Series shall have received the ratings
specified in the related Terms Agreement.
(p) On or prior to the related Closing Date, there has been no downgrading,
nor has any notice been given of (i) any intended or possible downgrading or
(ii) any review or possible changes in rating the direction of which has not
been indicated, in the rating accorded and originally requested by and paid for
by or on behalf of the Seller relating to any previously issued asset-backed
securities of the Trust by any "nationally recognized statistical rating
organization" (as such terms 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 Securities) and the related Terms Agreement may be terminated by
the Representative by notice to the Seller at any time at or prior to the
related Closing Date, and such termination shall be without liability of any
party to any other party except as provided in Section 5 hereof.
Section 7. Indemnification and Contribution. (a) Each of CDF and the Seller
shall, jointly and severally, indemnify and hold harmless each Underwriter and
each person who controls any Underwriter within the meaning of Section 15 of the
Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, or arising out of any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus
(or any 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
12
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Seller and 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 Seller by the
Representative expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) and set forth in the Prospectus and in the Prospectus
Supplement, in each case as specified in the related Terms Agreement, or (B) in
any ABS Filing or any amendment or supplement thereof, except to the extent that
any untrue statement or alleged untrue statement therein or omission therefrom
results (or is alleged to have resulted) from an error (a "Pool Error") in the
information concerning the characteristics of the Receivables furnished by the
Seller to the Underwriter in writing or by electronic transmission that was used
in the preparation of any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) included in such ABS Filing (or amendment or
supplement thereof).
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Seller and CDF, each of their respective directors, each of their respective
officers who signed the Registration Statement, and each person, if any, who
controls the Seller and CDF, respectively, within the meaning of Section 15 of
the Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section 7, as
incurred, but only with respect to (i) untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Seller through the Representative expressly for use
in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), in each
case as specified in the related Terms Agreement, or (ii) any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof) furnished to
the Seller by such Underwriter through the Representative pursuant to Section 9
or Section 10, or directly by such Underwriter, to the extent 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
13
supplement thereof (except that no such indemnity shall be available for any
losses, claims, damages or liabilities, or actions in respect thereof, resulting
from any Pool Error).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it with
respect to which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve it from any liability which it may have
otherwise than on account of this Section 7. An indemnifying party may
participate at its own expense in the defense of any such action. In no event
shall the indemnifying parties be liable for the fees and expenses of more than
one counsel (in addition to any local counsel) separate from their own counsel
for all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
Section 8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 7 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Seller and 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
Seller, 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 Securities, and the Seller 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 by which the total price at which
such Securities were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay in respect of such
losses, liabilities, claims, damages and expenses. For purposes of this Section
8, each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Act shall have the same rights to contribution as such
Underwriter and each officer of the Seller or CDF who signed the Registration
Statement, and each person, if any, who controls the Seller or CDF within the
meaning of Section 15 of the Act shall have the same rights to contribution as
the Seller 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 Securities of a Series is required to
be filed by the Seller with the Commission pursuant to Section 5(b) hereof, the
Representative shall deliver to the Seller a complete copy of all materials
provided by the Underwriters to prospective investors in such Securities that
constitute (i) "Computational Materials" within the meaning of the no-action
letter dated May 20, 1994, issued by the Division of Corporation Finance of the
Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co.
Incorporated and Xxxxxx 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 "Xxxxxx
Letters"), the filing of which material is a condition of the relief granted in
such letters (such materials being the "Computational Materials") and (ii)
"Structural Term Sheets" within the meaning of
14
the no-action letter dated February 17, 1995, issued by the Division of
Corporation Finance of the Commission to the Public Securities Association (the
"PSA Letter"), the filing of which material is a condition of the relief granted
in such letter (such materials being the "Structural Term Sheets"); prior to
such delivery by the Representative to the Seller of such materials, the
Representative shall notify, or cause to be notified, the Seller or its counsel
by telephone of its intention to deliver such materials and the approximate date
on which such delivery of such materials is expected to occur.
(b) Each Underwriter represents and warrants to and agrees with the Seller,
as of the date of the related Terms Agreement and as of the related Closing
Date, that:
(i) the Computational Materials furnished to the Seller pursuant to
Section 9(a) constitute (either in original, aggregated or consolidated
form) all of the materials furnished to prospective investors by such
Underwriter prior to the time of delivery thereof to the Seller that are
required to be filed with the Commission with respect to the related
Securities in accordance with the Xxxxxx Letters, and such Computational
Materials comply with the requirements of the Xxxxxx Letters; and
(ii) the Structural Term Sheets furnished to the Seller pursuant to
Section 9(a) constitute all of the materials furnished to prospective
investors by the Underwriter prior to the time of delivery thereof to the
Seller that are required to be filed with the Commission as "Structural
Term Sheets" with respect to the related Securities in accordance with the
PSA Letter, and such Structural Term Sheets comply with the requirements of
the PSA Letter.
(c) If, at any time when a prospectus relating to the Securities of a
Series is required to be delivered under the Act, it shall be necessary to amend
or supplement the related Prospectus and Prospectus Supplement as a result of an
untrue statement of a material fact contained in any Computational Materials or
Structural Term Sheets provided by the Underwriters pursuant to this Section 9
or the omission to state therein a material fact required, when considered in
conjunction with the related Prospectus and Prospectus Supplement, to be stated
therein or necessary to make the statements therein, when read in conjunction
with the related Prospectus and Prospectus Supplement, not misleading, or if it
shall be necessary to amend or supplement any ABS Filing relating to any
Computational Materials or Structural Term Sheets to comply with the Act or the
Rules and Regulations, the Representative promptly will prepare and furnish to
the Seller for filing with the Commission an amendment or supplement that will
correct such statement or omission or an amendment which will effect such
compliance.
Section 10. Collateral Term Sheets. (a) Prior to the delivery of any
"Collateral Term Sheet" within the meaning of the PSA Letter, the filing of
which material is a condition of the relief granted in such letter (such
material being the "Collateral Term Sheets" and together with Structural Term
Sheets, referred to herein as "ABS Term Sheets"), to a prospective investor in
Securities of a Series, the Representative shall, in order to facilitate the
timely filing of such material with the Commission, notify the Seller and its
counsel by telephone of its intention to
15
deliver such materials and the approximate date on which the first such delivery
of such materials is expected to occur. Not later than 2 p.m., New York time, on
the business day immediately following the date on which any Collateral Term
Sheet was first delivered to a prospective investor in such Securities, the
Representative shall deliver to the Seller a complete copy of all materials
provided by the Underwriters to prospective investors in the Securities that
constitute "Collateral Term Sheets." At the time of each such delivery, the
Representative shall indicate in writing that the materials being delivered
constitute Collateral Term Sheets.
(b) Each Underwriter represents and warrants to and agrees with the Seller
as of the date of the related Terms Agreement and as of the related Closing
Date, that the Collateral Term Sheets furnished to the Seller pursuant to
Section 10(a) constitute all of the materials furnished to prospective investors
by such Underwriter prior to time of delivery thereof to the Seller that are
required to be filed with the Commission as "Collateral Term Sheets" with
respect to the related Securities in accordance with the PSA Letter, and such
Collateral Term Sheets comply with the requirements of the PSA Letter.
(c) If, at any time when a prospectus relating to the Securities of a
Series is required to be delivered under the Act, it shall be necessary to amend
or supplement the related Prospectus and Prospectus Supplement as a result of an
untrue statement of a material fact contained in any Collateral Term Sheets
provided by the Underwriters pursuant to this Section 10 or the omission to
state therein a material fact required, when considered in conjunction with the
related Prospectus and Prospectus Supplement, to be stated therein or necessary
to make the statements therein, when read in conjunction with the related
Prospectus and Prospectus Supplement, not misleading, or if it shall be
necessary to amend or supplement any ABS Filing relating to any Collateral Term
Sheets to comply with the Act or the Rules and Regulations, the Representative
promptly will prepare and furnish to the Seller for filing with the Commission
an amendment or supplement that will correct such statement or omission or an
amendment which will effect such compliance.
Section 11. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
each of CDF, the Seller or its officers and of the Underwriters set forth in or
made pursuant to this Underwriting Agreement and the related Terms Agreement
will remain in full force and effect, regardless of any investigation or
statement as to the results thereof, made by or on behalf of any Underwriter,
CDF, the Seller or any of their respective representatives, officers or
directors of any controlling person, and will survive delivery of and payment
for the related Securities.
Section 12. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail on a Closing Date to purchase the related Securities
which it or they are obligated to purchase under this Underwriting Agreement and
the applicable Terms Agreement (the "Defaulted Securities"), the Representative
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth and under the
applicable Terms Agreement; if, however, the Representative shall not have
completed such arrangements within such 24-hour period, then:
16
(a) if the principal amount of Defaulted Securities does not exceed 10% of
the principal amount of such Series of Securities to be purchased pursuant to
such Terms Agreement, each of the non-defaulting Underwriters named in such
Terms Agreement shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations thereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds 10% of the
principal amount of such Series of Securities to be purchased pursuant to such
Terms Agreement, the applicable Terms Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 12 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
the related Terms Agreement, either the Representative or the Seller shall have
the right to postpone the related Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement,
Prospectus or Prospectus Supplement or in any other documents or arrangements.
Section 13. Notices. All communications hereunder will be in writing and:
(i) if sent to the Underwriters, will be mailed, delivered or sent by
facsimile transmission and confirmed to the Representative at:
______________________________
______________________________
______________________________
Attention: ___________________
Telephone: __________________
Facsimile: __________________;
with a copy to:
______________________________
______________________________
______________________________
Attention: ___________________
Telephone: __________________
Facsimile: __________________;
(ii) if sent to the Seller, will be mailed, delivered or sent by
facsimile transmission, and confirmed to it at:
CDF Financing, L.L.C.
000 Xxxxxxxxx Xxxxxx Xxxxx
00
Xx. Xxxxx, Xxxxxxxx 00000
Attention: [ ]
if sent to CDF, will be mailed, delivered or sent by facsimile
transmission, and confirmed to it at:
GE Commercial Distribution Finance Corporation
000 Xxxxxxxxx Xxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: [ ]
Telephone: (314) 523-[ ]
Facsimile: (314) 523-[ ];
or to such other address as CDF, the Seller or the Representative may designate
in writing to the other parties hereto.
Section 14. Successors. This Underwriting Agreement will inure to the
benefit of and be binding upon the Underwriters, CDF and the Seller and their
respective successors and the officers and directors and controlling persons
referred to in Section 7 hereof, and no other person will have any right or
obligations hereunder.
Section 15. Governing Law. THIS UNDERWRITING AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH
PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY
NEW YORK STATE OR FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY
OF NEW YORK, NEW YORK OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS UNDERWRITING AGREEMENT AND ANY TERMS AGREEMENT, AND IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF THE ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE OR FEDERAL COURT, AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO
THE MAINTENANCE OF SUCH ACTION OF PROCEEDING.
Section 16. Nonpetition Covenant. Notwithstanding any prior termination of
this Underwriting Agreement or any Terms Agreement, the Underwriters shall not
acquiesce, petition or otherwise invoke or cause the Seller or the general
partner of the Seller or the Trust to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Seller or the general partner of the Seller or the Trust under any federal
or state bankruptcy, insolvency or similar law, or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Seller or the general partner of the Seller or the Trust or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Seller of the general partner of the Seller or the Trust.
Section 17. Counterparts. This Underwriting Agreement may be executed by
each of the parties hereto in any number of counterparts, and by each of the
parties hereto on separate
18
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.
If the foregoing is in accordance with your understanding, please sign and
return to us a counterpart hereof, whereupon this letter and your acceptance
hereof shall constitute a binding agreement between the Underwriters, the Seller
and CDF.
Very truly yours,
CDF FINANCING, L.L.C.
By: ___________________________________
Name:
Title:
GE COMMERCIAL DISTRIBUTION FINANCE
CORPORATION
By: ___________________________________
Name:
Title:
Accepted in New York, New York
as of the date hereof:
[ ]
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
Acting on behalf of itself and, if applicable, as the Representative of the
Underwriters named in the related Terms Agreement.
19
EXHIBIT A
DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
Asset Backed Certificates
TERMS AGREEMENT
[Date]
To: CDF Financing, L.L.C.
Re: Underwriting Agreement dated as of [ ] (the "Standard Terms," and
together with this Terms Agreement, the "Agreement").
Series Designation: Series ____.
Terms of the Series Securities: Distribution Financial Services Floorplan
Master Trust Series ____-__ Asset Backed Certificates, Class __, Class __, Class
__, Class __, Class __, Class __ and Class __ Certificates (the "Securities")
will evidence beneficial ownership interest in a pool of Receivables having the
characteristics described in the Prospectus Supplement dated the date hereof.
Only the Class __, Class __, Class __, Class __ and Class __ Certificates
(collectively, the "Offered Securities") are being sold pursuant to the terms
hereof.
Registration Statement: File Number 333-[ ]
Ratings: It is a condition of Closing that at the Closing Date the Class __
and Class __ Securities be rated "____" by _______________ ("____") and "___" by
_____________ ("_____"); that the Class __ Securities be rated "___" by ____ and
"___" by ____; that the Class __ Securities be rated "__" by ____ and "__" by
_______.
Terms of Sale of Offered Securities: The Seller agrees to sell to [ ][and
______________________________ (the "Underwriter[s]")] [and ___________________
each] agree[s][, severally and not jointly,] to purchase from the Seller the
Offered Securities in the principal amounts and prices set forth beneath their
[respective] name[s] on Schedule 1. The purchase price for each class of the
Offered Securities shall be the applicable Purchase Price Percentage set forth
in Schedule 1 multiplied by the applicable principal amount.
Cut-off Date: [Date]
Closing Date: 10:00 A.M., New York time, on or about [Date]. On the Closing
Date, the Seller will deliver the Offered Securities to the Underwriters against
payment therefor.
Underwriter-Provided Information: The Seller 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
A-1
immediately following the _______ paragraph under such caption in such
Prospectus Supplement, as such information relates to the Securities, constitute
the only information furnished in writing by or on behalf of the Underwriters
for inclusion in the Registration Statement, the Prospectus or the Prospectus
Supplement, and the Underwriters confirm that such statements are correct.
Incorporation of the Standard Terms: Each of the provisions of the Standard
Terms is incorporated herein by reference in its entirety and shall be deemed to
be a part of this Terms Agreement to the same extent as if such provisions had
been set forth in full herein and each of the representations and warranties set
forth therein shall be deemed to have been made on and as of the date of this
Terms Agreement, and the Standard Terms and this Terms Agreement shall be
construed as, together, one and the same agreement. Without limiting the
foregoing, Sections 14 through 17 of the Standard Terms are incorporated herein
by reference in their entirety.
A-2
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the undersigned a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement among the
Underwriters, CDF Financing, L.L.C. and GE Commercial Distribution Finance
Corporation.
Very truly yours,
[ ]
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:
A-3
Schedule 1
APPROXIMATE APPROXIMATE
INITIAL AMOUNT AMOUNT
INTEREST PRINCIPAL PURCHASE PURCHASED BY PURCHASED BY
CLASS RATE AMOUNT (1) PRICE PERCENTAGE [ ] [ ]
----- -------- ---------- ---------------- ------------ ------------
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Total $ % $ $
(1) Approximate.
