Exhibit 1.1
GE DEALER FLOORPLAN MASTER NOTE TRUST
$[ ] Class A Asset-Backed Notes
$[ ] Class B Asset-Backed Notes
$[ ] Class C Asset-Backed Notes
UNDERWRITING AGREEMENT
[ ],
Acting on behalf of itself and as the
Representative of the Several
Underwriters named in Schedule I hereto
(the "Representative")
[Address] [ ]
Ladies and Gentlemen:
CDF Funding, Inc., a Delaware corporation (the "Company"), proposes to
cause GE Dealer Floorplan Master Note Trust (the "Issuer") to issue $[ ]
aggregate principal amount of Class A Asset Backed Notes, Series [__] (the
"Class A Notes"), $[ ] aggregate principal amount of the Class B Asset Backed
Notes, Series [__] (the "Class B Notes") and $[ ] aggregate principal amount of
the Class C Asset Backed Notes, Series [__] (the "Class C Notes", and together
with the Class A Notes and the Class B Notes, the "Offered Notes"). The offering
of the Offered Notes by the Underwriters pursuant to this Agreement is referred
to herein as the "Note Offering"). The Company is a subsidiary of General
Electric Capital Corporation ("GE Capital") and General Electric Capital
Services, Inc.
The Issuer is a Delaware statutory trust formed pursuant to (a) an Amended
and Restated Trust Agreement, dated as of [___], 2004 (the "Trust Agreement"),
between the Company and The Bank of New York (Delaware), as owner trustee (the
"Owner Trustee"), and (b) the filing of a certificate of trust with the
Secretary of State of Delaware on [__], 2004. The Offered Notes will be issued
pursuant to a Master Indenture, dated as of [___], 2004 (the "Master
Indenture"), between the Issuer and Wilmington Trust Company, as indenture
trustee (the "Indenture Trustee"), as supplemented by the Series [__] Indenture
Supplement with respect to the Offered Notes, dated as of [___], 2004 (the
"Indenture Supplement" and, together with the Master Indenture, the
"Indenture").
The primary assets of the Issuer are (i) a certificate (the "Note Trust
Certificate") representing a beneficial interest in the assets held in
Distribution Financial Services Flooplan Master Trust (the "DFS Trust"), issued
pursuant to the Amended and Restated Pooling and
Underwriting Agreement
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Servicing Agreement, dated as of April 1, 2000 (as amended, restated, modified
or supplemented, the "Pooling and Servicing Agreement"), among GE Commercial
Distribution Finance Corporation ("CDF"), formerly known as Deutsche Financial
Services Corporation, as servicer, Wilmington Trust Company, successor to The
Chase Manhattan Bank (the "DFS Trustee"), as trustee, and CDF Financing, L.L.C.,
a Delaware limited liability company, and (ii) such assets that the Company may
acquire from time to time pursuant to a Receivables Sale Agreement, dated as of
[__], 2004 (as amended, restated, modified or supplemented, the "Receivables
Sale Agreement", together with the Pooling and Servicing Agreement, the "Sale
Agreements"), among the Company, CDF and Transamerica Commercial Finance
Corporation ("TCFC") including receivables ("Receivables") arising in a
portfolio of revolving accounts owned by CDF, TCFC and other originators from
time to time.
The Receivables are transferred to the Issuer pursuant to the Receivables
Purchase and Contribution Agreement, dated as of [___], 2004 (the "RPCA"),
between the Company and the Issuer. The Issuer has acquired the Note Trust
Certificate pursuant to the RPCA. GE Capital has agreed to conduct the
servicing, collection and administration of the Receivables owned by the Issuer
pursuant to a Servicing Agreement, dated as of [__], 2004 (the "Servicing
Agreement"), between the Issuer and GE Capital, as master servicer.
GE Capital has agreed to provide notices and perform on behalf of the
Issuer certain other administrative obligations required by the RPCA, the
Servicing Agreement, the Master Indenture and each indenture supplement for each
series of notes issued by the Issuer, pursuant to an Administration Agreement,
dated as of [___], 2004 (the "Administration Agreement"), between GE Capital, as
administrator (in such capacity, the "Administrator"), the Issuer and The Bank
of New York (Delaware), as Owner Trustee. The Trust Agreement, the Indenture,
the RPCA, the Receivables Sale Agreement, the Servicing Agreement and the
Administration Agreement are referred to herein, collectively, as the "Program
Documents."
This Underwriting Agreement is referred to herein as this "Agreement."
To the extent not defined herein, capitalized terms used herein have the
meanings assigned in the Program Documents.
The Company and GE Capital hereby agree, severally and not jointly,
with the underwriter[s] for the Class A Notes listed on Schedule I hereto (the
"Class A Underwriters"), the underwriter[s] for the Class B Notes listed on
Schedule I hereto (the "Class B Underwriters") and the underwriter[s] for the
Class C Notes listed on Schedule I hereto (the "Class C Underwriters" and,
together with the Class A Underwriters and the Class B Underwriters, the
"Underwriters") as follows:
1. Representations and Warranties. The Company represents and warrants
to and agrees with the Underwriters, as of the date hereof, that:
(a) A registration statement on Form S-3 (Nos. 333-[_____],
333-[_____]-01 and 333-[_____]-02), including a form of prospectus and
such amendments thereto as may have been filed prior to the date hereof,
relating to the Offered Notes and the offering thereof in accordance with
Rule 415 under the Securities Act of 1933, as amended (the "Act"), has
been filed with, and has been declared effective by, the
Underwriting Agreement
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Securities and Exchange Commission (the "Commssion"). If any
post-effective amendment to such registration statement has been filed
with the Commission prior to the execution and delivery of this Agreement,
the most recent such amendment has been declared effective by the
Commission. For purposes of this Agreement, "Effective Time" means the
date and time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission, and "Effective Date" means the date of the Effective Time.
Such registration statement, as amended at the Effective Time, is
hereinafter referred to as the "Registration Statement." The Company
proposes to file with the Commission pursuant to Rule 424(b) ("Rule
424(b)") under the Act a supplement (the "Prospectus Supplement") to the
prospectus included in the Registration Statement (such prospectus, in the
form it appears in the Registration Statement or in the form most recently
revised and filed with the Commission pursuant to Rule 424(b), is
hereinafter referred to as the "Base Prospectus") relating to the Offered
Notes and the method of distribution thereof. The Base Prospectus and the
Prospectus Supplement, together with any amendment thereof or supplement
thereto, are hereinafter referred to as the "Prospectus."
(b) The Registration Statement, as of the Effective Date,
conformed in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder; on the date of this
Agreement, the Prospectus conforms, and as of the time of filing the
Prospectus pursuant to Rule 424(b), the Prospectus will conform, in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder; the Registration Statement, at
the Effective Time, 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; and the
Prospectus, as of its date, and as of the time of filing pursuant to Rule
424(b), 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 the Company makes no representations or warranties
as to the information contained in or omitted from such Registration
Statement or such Prospectus in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the
Underwriters specifically for use in the preparation thereof, which
information consists of the Underwriters' Information (as defined herein).
(c) The Offered Notes will conform to the description thereof
contained in the Prospectus and as of the Closing Date will be duly and
validly authorized and, when validly executed, countersigned, issued and
delivered in accordance with the Indenture and sold to the Underwriters as
provided herein, will be validly issued and outstanding and entitled to
the benefits of the related Indenture.
(d) Neither the issuance nor sale of the Offered Notes nor the
consummation of any other of the transactions herein contemplated, nor the
fulfillment of the terms hereof, will conflict with any statute, order or
regulation applicable to the Company with respect to the offering of the
Notes by any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Company or with any organizational
document of the Company or any instrument or any agreement under which the
Company is bound or to which it is a party.
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(e) This Agreement has been duly authorized, executed and
delivered by the Company.
2. Purchase and Sale.
(a) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the Class A Underwriter[s], and the
Class A Underwriter[s] agree to purchase from the Company, at a purchase
price of [ ]% of the principal amount thereof, $[ ] aggregate principal
amount of the Class A Notes, each Class A Underwriter to purchase the
amounts shown on Schedule I hereto.
(b) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the Class B Underwriter[s], and the
Class B Underwriter[s] agree to purchase from the Company, at a purchase
price of [ ]% of the principal amount thereof, $[ ] aggregate principal
amount of the Class B Notes, each Class B Underwriter to purchase the
amounts shown on Schedule I hereto.
(c) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the Class C Underwriter[s], and the
Class C Underwriter[s] agree to purchase from the Company, at a purchase
price of [ ]% of the principal amount thereof, $[ ] aggregate principal
amount of the Class C Notes.
(d) The parties hereto agree that settlement for all securities
pursuant to this Agreement shall take place on the terms set forth herein
and not as set forth in Rule 15c6-1(a) under the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
3. Delivery and Payment. Delivery of and payment for the Offered Notes
shall be made at the offices of Mayer, Brown, Xxxx & Maw LLP, Chicago, Illinois,
at 10:00 A.M., New York City time, on the "Closing Date" specified in the
related Indenture Supplement, which date and time may be postponed by agreement
between the Representative and the Company (such date and time being herein
called the "Closing Date"). Delivery of such Offered Notes shall be made to the
Underwriters against payment by the Underwriters of the purchase price thereof
to or upon the order of the Company by wire transfer in federal or other
immediately available funds or by check payable in federal funds, as the Company
shall specify prior to such Closing Date. Unless delivery is made through the
facilities of The Depository Trust Company, the Offered Notes shall be
registered in such names and in such authorized denominations as the
Representative may request not less than two full business days in advance of
the Closing Date.
The Company agrees to notify the Representative at least two business days
before each Closing Date of the exact principal balance evidenced by the Offered
Notes and to have such Offered Notes available for inspection in Chicago,
Illinois, no later than 12:00 noon on the business day prior to such Closing
Date.
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4. Offering by the Underwriters. It is understood that the Underwriters
propose to offer the Offered Notes for sale to the public as set forth in the
Prospectus.
5. Agreements. The Company agrees with each Underwriter that:
(a) The Company will cause the Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424 under the Act by means
reasonably calculated to result in filing with the Commission pursuant to
such rule, and prior to the termination of the offering of the Offered
Notes, also will advise the Representative of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or preventing the offer and sale of the Offered
Notes.
(b) If, at any time when a Prospectus relating to the Offered
Notes is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall be
necessary at any time to amend or supplement the Prospectus to comply with
the Act or the rules thereunder, the Company will promptly notify the
Representative of such event and prepare and file with the Commission an
amendment or supplement that will correct such statement or omission or an
amendment which will effect such compliance.
(c) The Company will furnish to the Representative a copy of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by any Underwriter may be required by the Act, as
many copies of the Prospectus as such Underwriter may reasonably request.
(d) The Company will furnish such information, execute such
instruments and take such actions as may be reasonably requested by the
Representative to qualify the Offered Notes for sale under the laws of
such jurisdictions as the Representative may designate and to maintain
such qualifications in effect so long as required for the initial
distribution of the Offered Notes; provided, however, that the Company
shall not be required to qualify to do business in any jurisdiction where
it is not now so qualified or to take any action which would subject it to
general or unlimited service of process in any jurisdiction in which it is
not now so subject.
(e) If the transactions contemplated by this Agreement are
consummated, the Company will pay or cause to be paid all expenses
incident to the performance of the obligations of the Company under this
Agreement, and will reimburse the Underwriters for any reasonable expenses
(excluding fees of counsel) reasonably incurred by it in connection with
qualification of the Offered Notes for sale and determination of their
eligibility for investment under the laws of such jurisdictions as the
Representative has reasonably requested pursuant to Section 5(d), for any
fees charged by investment rating agencies for the rating of the Offered
Notes, and for expenses incurred in distributing the Prospectus to the
Underwriters. If the transactions contemplated by this Agreement are not
consummated because any condition to the obligations of the Underwriters
set forth in Section 6 is not satisfied or because of any refusal,
inability or failure on the part of the
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Company to perform any agreement herein or to comply with any provision
hereof other than by reason of default by the Underwriters, the Company
will reimburse the Underwriters upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have
been incurred by the Underwriters in connection with the proposed
purchase, sale and offering of the Offered Notes. Except as herein
provided, the Underwriters shall be responsible for paying all costs and
expenses incurred by them, including the fees and disbursements of their
counsel, in connection with the purchase and sale of the Offered Notes.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Offered Notes shall be subject to the
accuracy in all material respects of the representations and warranties on the
part of the Company contained in this Agreement, to the accuracy of the
statements of the Company made in any applicable officers' certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
under this Agreement and to the following additional conditions applicable to
the Offered Notes:
(a) 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 the Company, threatened by
the Commission.
(b) Counsel to each of the Company, GE Capital and the Issuer (who
shall be satisfactory to the Representative) shall have furnished to the
Representative an opinion or opinions, dated the Closing Date, in each
case in form and substance reasonably satisfactory to the Representative,
relating to certain enforceability, securities law and security interest
matters.
(c) In-house counsel for each of the Company and GE Capital shall
have furnished to the Representative an opinion, dated the Closing Date,
in form and substance reasonably satisfactory to the Representative.
(d) The Representative shall have received from XxXxx Xxxxxx LLP,
counsel for the Underwriters, such opinion or opinions, dated the related
Closing Date, with respect to the issuance and sale of the Offered Notes,
the Registration Statement, the Prospectus and such other related matters
as the Representative may reasonably require, and the Company shall have
furnished to such counsel such documents as the Representative may
reasonably request for the purpose of enabling them to pass upon such
matters.
(e) The Company shall have furnished to the Representative a
certificate of the Company, signed by the President, any Vice President,
or the principal financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signer of such certificate has
carefully examined the Program Documents to which the Company is a party,
and that, to the best of such person's knowledge after reasonable
investigation, the representations and warranties of the Company in this
Agreement and the Program Documents to which the Company is a party are
true and correct in all material respects,
Underwriting Agreement
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and the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior
to the Closing Date.
(f) Counsel for the Indenture Trustee (who shall be satisfactory
to the Representative) shall have furnished to the Representative an
opinion, dated the Closing Date, in form and substance reasonably
satisfactory to the Representative.
(g) Counsel for the Owner Trustee (who shall be satisfactory to
the Representative) shall have furnished to the Representative an opinion,
dated the Closing Date, in form and substance reasonably satisfactory to
the Representative.
(h) Counsel for the Company (who shall be satisfactory to the
Representative) shall have furnished to the Representative an opinion,
dated the Closing Date, in form and substance reasonably satisfactory to
the Representative, relating to certain insolvency and bankruptcy matters
and federal income tax matters.
(i) The Representative shall have received a letter, dated the
Closing Date or such other date as may be agreed upon between the
Representative and the Company, from certified public accountants (who
shall be satisfactory to the Representative), substantially in the form
previously approved by the Representative.
(j) The Offered Notes shall have received the ratings specified in
the Prospectus.
(k) Prior to the Closing Date, the Company shall have furnished to
the Underwriter such further information, certificates and documents as
the Representative may reasonably request.
(l) Subsequent to the date of the Prospectus, there shall not have
been any material adverse change in the business or properties of the
Company which in the Representative's reasonable judgment, after
consultation with the Company, materially impairs the investment quality
of the Offered Notes so as to make it impractical or inadvisable to
proceed with the public offering or the delivery of such Offered Notes as
contemplated by the Prospectus.
7. Indemnification and Contribution.
(a) The Company and GE Capital, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each Person who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20
of the Exchange Act (a "Controlling Person") against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them may become subject under the Act, the Exchange Act, or other Federal
or state statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) are caused by (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
the Prospectus, or are caused by the omission or alleged omission to state
therein a material fact required to be stated therein or
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necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; and will reimburse each
Underwriter and Controlling Person for any legal or other expenses
reasonably incurred by the Underwriter or such Controlling Person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) neither the Company nor
GE Capital will be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company or GE Capital by or on behalf of any
Underwriter specifically for use in connection with the preparation of the
Prospectus or any other offering materials used in connection with the
offer and sale of the Offered Notes by an Underwriter (the "Underwriters'
Information"), and (ii) such indemnity with respect to any Corrected
Statement (as defined below) in such Prospectus shall not inure to the
benefit of any Underwriter (or any Controlling Person) from whom the
Person asserting any loss, claim, damage or liability purchased the
Offered Notes that are the subject thereof if such Person was not sent a
copy of a Prospectus at or prior to the confirmation of the sale of such
Offered Notes and the untrue statement or omission of a material fact
contained in such Prospectus was corrected (a "Corrected Statement") in
such other supplement to the Prospectus and such supplement was furnished
by the Company or GE Capital to such Underwriter prior to the delivery of
such confirmation. This indemnity agreement will be in addition to any
liability which the Company or GE Capital may otherwise have.
Each Underwriter agrees to indemnify and hold harmless the Company,
GE Capital, their respective Affiliates, and each of their respective
directors, managers and officers who signs the Registration Statement
relating to the Offered Notes, and each Person who controls the Company,
GE Capital or their respective Affiliates within the meaning of the Act or
the Exchange Act to the same extent as the foregoing indemnities from the
Company and GE Capital to such Underwriter, but only with reference to
written information furnished to the Company or GE Capital by or on behalf
of such Underwriter specifically for use in the preparation of the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise
have. [Each of the Company and GE Capital acknowledges that the statements
set forth on the cover page of the Prospectus Supplement in the table
under the heading "Class A Notes" and on the line across from "Price to
public," in the table listing the Class A Underwriters and the Principal
Amount of Class A Notes under the heading "Underwriting" in the Prospectus
Supplement, in the table following the third paragraph under the heading
"Underwriting" in the Prospectus Supplement in the column labeled "Class A
Notes", and in the penultimate paragraph under the heading "Underwriting"
in the Prospectus Supplement, on the cover page of the Prospectus
Supplement in the table under the heading "Class B Notes" and on the line
across from "Price to public," in the table listing the Class B
Underwriters and the Principal Amount of Class B Notes and under the
heading "Underwriting" in the Prospectus Supplement, in the table
following the third paragraph under the heading "Underwriting" in the
Prospectus Supplement in the column labeled "Class B Notes", on the cover
page of the Prospectus Supplement in the table under the heading "Class C
Underwriting Agreement
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Notes" and on the line across from "Price to public," in the table listing
the Class C Underwriters and the Principal Amount of Class C Notes and
under the heading "Underwriting" in the Prospectus Supplement, in the
table following the third paragraph under the heading "Underwriting" in
the Prospectus Supplement in the column labeled "Class C Notes", and in
the penultimate paragraph under the heading "Underwriting" in the
Prospectus Supplement constitute the information furnished in writing by
or on behalf of the Underwriter for inclusion in the Prospectus, and the
Underwriters confirms that such statements are correct.]
(b) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the commencement thereof; but the omission or failure to so
notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under this Section 7
except and to the extent of any prejudice to the indemnifying party
arising from such failure or omission to provide notice. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert
such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have
employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel approved by the
indemnified party in the case of subparagraph (a) or (b) of this Section
7, representing the indemnified parties under subparagraph (a) or (b), who
are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying
party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). Unless it shall assume the defense of any proceeding,
the indemnifying party shall not be liable for any settlement of any
proceeding, effected without its written consent, but if settled with such
consent or
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if there shall be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss,
claim, damage or liability by reason of such settlement or judgment. 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 on any claims that are the subject
matter of such action and does not include a statement as to, or an
admission of, fault, culpability or failure to act by or on behalf of any
indemnified party.
(c) If the indemnification provided for in paragraph (a) or (b) of
this Section 7 is due in accordance with its terms but is for any reason
held by a court to be unavailable from the Company, GE Capital or an
Underwriter, on grounds of policy or otherwise, then each indemnifying
party shall contribute to the aggregate losses, claims, damages and
liabilities to which the Company, GE Capital, any of their respective
Affiliates and the Underwriters may be subject in such proportion as is
appropriate to reflect not only the relative benefits received by the
Company and GE Capital on the one hand and the Underwriter on the other
from the offering of the Offered Notes but also the relative fault of the
Company and GE Capital on the one hand and of the Underwriters, on the
other, in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company
and GE Capital on the one hand and an Underwriter on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) of the Offered Notes received by the
Company and GE Capital bear to the total underwriting discounts and
commissions received by such Underwriter with respect to the Offered
Notes. The relative fault of the Company and GE Capital on the one hand
and of the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact in the Registration Statement or the Prospectus or the
omission or alleged omission to state a material fact therein or necessary
to make the statements contained therein, in light of the circumstances
under which they were made, not misleading relates to information supplied
by the Company or GE Capital or by the Underwriters, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(d) The Company, GE Capital and the Underwriters agree that it
would not be just and equitable if contribution pursuant to Section 7(c)
were determined by pro rata allocation or by any other method of
allocation which does not take account of the considerations referred to
above. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in Section 7(c)
shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim
except where the indemnified party is required to bear such expenses
pursuant to Section 7(b); which expenses the indemnifying party shall pay
as and when incurred, at the request of the indemnified party, to the
extent that the
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indemnifying party reasonably believes that it will be ultimately
obligated to pay such expenses. In the event that any expenses so paid by
the indemnifying party are subsequently determined to not be required to
be borne by the indemnifying party hereunder, the party which received
such payment shall promptly refund the amount so paid to the party which
made such payment.
Notwithstanding anything to the contrary in Section 7(d), 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. For purposes of this Section 7, each Controlling
Person shall have the same rights to contribution as the Underwriter, and each
Person who controls the Company or GE Capital or any Affiliate thereof within
the meaning of either the Act or the Exchange Act, each officer of the Company
or GE Capital or any Affiliate thereof who shall have signed the Registration
Statement and each director of the Company or GE Capital or any Affiliate
thereof shall have the same rights to contribution as the Company or GE Capital
or any Affiliate thereof, as applicable, subject in each case to the immediately
preceding sentence of this paragraph.
(e) Computational Materials and Structural Term Sheets. Each
Underwriter represents and warrants to and agrees with the Company, as of the
date of the date hereof and as of the Closing Date, that it has not used, and
will not use, any Derived Information (as such term is defined below) in
connection with the offering of the Offered Notes. For purposes of this
Agreement, "Derived Information" means the type of information defined as
Collateral Term Sheets, Structural Term Sheets or Computational Materials (as
such terms are interpreted in the No-Action Letters). The terms "Collateral Term
Sheet" and "Structural Term Sheet" shall have the respective meanings assigned
to them in the February 13, 1995 letter (the "PSA Letter") of Cleary, Gottlieb,
Xxxxx & Xxxxxxxx on behalf of the Public Securities Association (which letter,
and the Commission staff's response thereto, were publicly available February
17, 1995), and with respect to "Collateral Term Sheet" includes any subsequent
Collateral Term Sheet that reflects a substantive change in the information
presented. The term "Computational Materials" has the meaning assigned to it in
the May 17, 1994 letter of Xxxxx & Wood on behalf of Xxxxxx, Xxxxxxx & Co., Inc.
(which letter, and the Commission staff's response thereto, were publicly
available May 20, 1994) (the "Xxxxxx Letter", and together with the PSA Letter,
the "No-Action Letters").
8. Agreement of the Underwriter. Each Underwriter agrees that (i) a
printed copy of the Prospectus will be delivered to each Person who receives a
confirmation of sale prior to or at the same time with such confirmation of
sale; (ii) if an electronic copy of the Prospectus is delivered by such
Underwriter for any purpose, such copy shall be the same electronic file
containing the Prospectus in the identical form transmitted electronically to
such Underwriter by or on behalf of the Company specifically for use by such
Underwriter pursuant to this Section 8; for example, if the Prospectus is
delivered to such Underwriter by or on behalf of the Company as a single
electronic file in pdf format, then the Underwriter will deliver the electronic
copy of the Prospectus in the same single electronic file in pdf format; and
(iii) it has not used, and during the period for which it has an obligation to
deliver a "prospectus" (as defined in Section 2(a)(10) of the Act) relating to
the Offered Notes (including any period during which such Underwriter has such
delivery obligation in its capacity as a "dealer" (as defined in Section
2(a)(12) of the Act)) it will not use, any internet Web site or electronic media
containing
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11
information for prospective investors, including, without limitation, any
internet Web site or electronic media maintained by third parties, in connection
with the offering of the Offered Notes, except in compliance with applicable
laws and regulations.
9. Default by an Underwriter. If any Underwriter shall fail to purchase
and pay for any of the Offered Notes agreed to be purchased by such Underwriter
hereunder and such failure to purchase shall constitute a default in the
performance of its obligations under this Agreement, the remaining Underwriters
shall be obligated to take up and pay for the Offered Notes that the defaulting
Underwriter agreed but failed to purchase; provided, however, that in the event
that the initial principal balance of Offered Notes that the defaulting
Underwriter agreed but failed to purchase shall exceed 10% of the aggregate
principal balance of all of the Offered Notes set forth in Schedule I hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Offered Notes, and if such
nondefaulting Underwriters do not purchase all of the Offered Notes, this
Agreement will terminate without liability to the nondefaulting Underwriters or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date for the Offered Notes shall be postponed for such
period, not exceeding seven (7) days, as the nondefaulting Underwriters shall
determine in order that the required changes in the Registration Statement, the
Prospectus, the Program Documents or in any other documents or arrangements may
be effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company and to any nondefaulting
Underwriter for any loss, claim, damage or liability occasioned by its default
hereunder.
10. Termination.
(a) This Agreement shall be subject to termination by notice given to
the Company, if the sale of the Offered Notes provided for herein is not
consummated because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement. If the Underwriters terminate this Agreement in accordance with
this Section 10, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been reasonably incurred by the Underwriters in connection with
the proposed purchase and sale of the Notes.
(b) The obligations of the Underwriters to purchase the Offered Notes on
the Closing Date shall be terminable by the Underwriters by written notice
delivered by the Representative to the Company and GE Capital if at any time on
or before the Closing Date (a) a general moratorium on commercial banking
activities in New York shall have been declared by any of Federal or New York
state authorities, (b) trading in securities generally on the New York Stock
Exchange shall have been suspended, or minimum or maximum prices or ranges of
prices shall be established, by such exchange or by order of the Commission, (c)
there shall have occurred any outbreak or material escalation of hostilities or
other calamity or crisis, the effect of which on the financial markets of the
United States is such as to make it, in the Underwriters' reasonable judgment,
impracticable to market the Offered Notes on the terms and in the manner
contemplated in the Prospectus. Upon such notice being given, the parties to
this Agreement
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shall (except for the liability of the Company under and Section 7) be released
and discharged from their respective obligations under this Agreement.
11. Representations and Indemnities to Survive Delivery. The agreements,
representations, warranties, indemnities and other statements of the Company, GE
Capital or their respective officers and of the Representative set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of the Underwriters or the Company or
any of the officers, directors, managers or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the related
Offered Notes. The provisions of Section 7 hereof shall survive the termination
or cancellation of this Agreement.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 hereof, and
their successors and assigns, and no other Person will have any right or
obligation hereunder. No purchaser of any Offered Note from the Underwriter
shall be deemed a successor or assign by reason of such purchase.
13. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS 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.
14. Miscellaneous. This Agreement supersedes all prior and
contemporaneous agreements and understandings relating to the subject matter
hereof. This Agreement may not be changed, waived, discharged or terminated
except by an affirmative written agreement made by the party against whom
enforcement of the change, waiver, discharge or termination is sought. The
headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof or thereof.
15. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representative, will be delivered
to it at the address first above written; or if sent to the Company, will be
delivered to CDF Funding, Inc., 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxx,
Xxxxxxxx 00000, Attention: General Counsel, or if sent to GE Capital, will be
delivered to General Electric Capital Corporation, 0000 Xxxxxx Xxxxxx, 0xx
Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: [Xxxx Xxxxxxxxxx].
16. Non-Petition Covenant. Notwithstanding any prior termination of this
Agreement, no Underwriter shall acquiesce, petition or otherwise invoke or cause
the Company or the Issuer to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against the Company
or the Issuer 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 Company or the Issuer or any substantial part
of its property, or ordering the winding up or liquidation of the affairs of the
Company or the Issuer.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the parties hereto.
Very truly yours,
CDF FUNDING, INC.
By: ___________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: ___________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
[__________________________________], as Representative
By:
Name:
Title:
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14
SCHEDULE I
UNDERWRITER CLASS PURCHASED $ PURCHASED
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15
