GE DEALER FLOORPLAN MASTER NOTE TRUST UNDERWRITING AGREEMENT
Exhibit 1.1
Banc of America Securities LLC
Greenwich Capital Markets, Inc.
acting on behalf of themselves and as the
Representatives of the Underwriters named in the
Terms Agreement referred to herein (the “Representatives”)
Greenwich Capital Markets, Inc.
acting on behalf of themselves and as the
Representatives of the Underwriters named in the
Terms Agreement referred to herein (the “Representatives”)
June 26, 2006
Ladies and Gentlemen:
CDF Funding, Inc., a Delaware corporation (the “Company”), proposes to cause GE Dealer
Floorplan Master Note Trust (the “Issuer”) to issue the “Offered Notes” (as such term is
defined in the applicable Terms Agreement). The offering of the Offered Notes by the “Underwriters”
(as such term is defined in the applicable Terms Agreement) pursuant to this Agreement and the
applicable terms agreement (such terms agreement to incorporate by reference this Agreement and to
be substantially in the form of Exhibit A; each such terms agreement may be referred to as a
“Terms Agreement”) is referred to herein as the “Note Offering.” The Company is
jointly owned by General Electric Capital Corporation (“GE Capital”) and General Electric
Capital Services, Inc.
The Issuer is a Delaware statutory trust formed pursuant to (a) a Trust Agreement, dated as of
April 20, 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 April 20, 2004. The Offered Notes will be issued
pursuant to a Master Indenture, dated as of August 12, 2004 (the “Master Indenture”),
between the Issuer and Wilmington Trust Company, as indenture trustee (the “Indenture
Trustee”) and an Indenture Supplement with respect to the Offered Notes (the “Indenture
Supplement” and, together with the Master Indenture, the “Indenture”).
The assets of the Issuer include such assets that the Company may acquire from time to time
pursuant to a Receivables Sale Agreement, dated as of August 12, 2004 (the “Receivables Sale
Agreement”), among the Company, GE Commercial Distribution Finance Corporation (“CDF”),
Transamerica Commercial Finance Corporation and Brunswick Acceptance Company, LLC (“BAC”),
including receivables (“Receivables”) arising in a portfolio of revolving accounts owned by
CDF, BAC 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 August 12, 2004 (the “RPCA”), between the Company and
the Issuer. 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 August 12, 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 August 12, 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”, which shall
include the applicable Terms Agreement if the context so requires. Capitalized terms defined in
the Program Documents and used but not defined herein have the meanings assigned in the Program
Documents. For purposes of this Agreement and all related documents, unless the context otherwise
requires: (a) accounting terms not otherwise defined in this Agreement, and accounting terms
partly defined in this Agreement to the extent not defined, shall have the respective meanings
given to them under GAAP; (b) unless otherwise provided, references to any month, quarter or year
refer to a calendar month, quarter or year; (c) terms defined in Article 9 of the UCC as in effect
in the applicable jurisdiction and not otherwise defined in this Agreement are used as defined in
that Article; (d) references to any amount as on deposit or outstanding on any particular date mean
such amount at the close of business on such day; (e) the words “hereof”, “herein” and ”hereunder”
and words of similar import refer to this Agreement (or the certificate or other document in which
they are used) as a whole and not to any particular provision of this Agreement (or such
certificate or document); (f) references to any Section, Schedule or Exhibit are references to
Sections, Schedules and Exhibits in or to this Agreement (or the certificate or other document in
which the reference is made), and references to any paragraph, subsection, clause or other
subdivision within any Section or definition refer to such paragraph, subsection, clause or other
subdivision of such Section or definition; (g) the term “including” means “including without
limitation”; (h) references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (i) references to any agreement
refer to that agreement as from time to time amended, restated or supplemented or as the terms of
such agreement are waived or modified in accordance with its terms; and (j) references to any
Person include that Person’s successors and permitted assigns.
The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) in accordance with the provisions of the Securities Act of 1933 (the
“Act”), a shelf registration statement on Form S-3 (having the registration number
333-130782), 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 Act. The shelf registration statement as amended has been declared effective by
the Commission not more than three years prior to the date hereof. If any post-effective amendment
to such registration statement has been filed with respect thereto, 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 shelf 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, including all
material incorporated by reference therein and including all information (if any) deemed to be
part
of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is
referred to in this Agreement as the “Registration Statement.” The Company proposes to file with
the Commission pursuant to Rule 424(b) under the Act (“Rule 424(b)”) 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.”
Prior to the “Time of Sale” (as such term is defined in the applicable Terms
Agreement), the Company also had prepared a Preliminary Prospectus with respect to such Offered
Notes. As used herein, “Preliminary Prospectus” means, with respect to any date or time
referred to herein, the most recent preliminary Prospectus (as amended or supplemented, if
applicable), which has been prepared and delivered by the Company to the Representative in
accordance with the provisions hereof.
1. Representations and Warranties. The Company represents and warrants to and agrees
with each Underwriter, as of the date hereof, that:
(a) (i) The conditions to the use of a registration statement on Form S-3 under the
Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415
under the Act, have been satisfied with respect to the Registration Statement. No stop
order suspending the effectiveness of the Registration Statement has been issued, and no
proceeding for that purpose has been instituted or threatened by the Commission.
(ii) As of the Closing Date (as such term is defined below), the Registration
Statement, the Preliminary Prospectus and the Prospectus, except with respect to any
modification as to which the Representative has been notified, shall be in all
substantive respects in the form furnished to the Representative or its counsel
before such date or, to the extent not completed on such date, shall contain only
such specific additional information and other changes (beyond that contained in the
latest Preliminary Prospectus that has previously been furnished to the
Representative) as the Company or GE Capital has advised the Representative, before
such time, will be included or made therein.
(iii) 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 and of the Trust Indenture Act of 1939; 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 and the Designated Static Pool Information (as
defined below), taken together, 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, that the
Company makes no representations or warranties as to (I) that part of the
Registration Statement which constitutes the Statements of Eligibility of
Qualification (Form T-1) of the Indenture Trustee and (II) any thing 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 any
Underwriter specifically for use in the preparation thereof, which information
consists of the Underwriters’ Information (as defined herein). As used herein the
term “Designated Static Pool Information” shall mean the static pool
information referred to in the Preliminary Prospectus and the Prospectus under the
caption “Static Pool Information” but deemed to be excluded from the Registration
Statement and the Prospectus pursuant to Item 1105(d) of Regulation AB issued under
the Act.
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the
Closing Date will not, include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not
misleading (it being understood that no representation or warranty is made with
respect to the omission of pricing and price-dependent information, which
information shall of necessity appear only in the final Prospectus); provided, that
this representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information contained in or omitted from
either the Registration Statement or the Prospectus based upon Underwriters’
Information.
(v) Other than with respect to the Preliminary Prospectus, the Prospectus and
the Permitted Additional Information (as defined below), the Issuer (including its
agents and representatives) has not made, used, authorized or approved and will not
make, use, authorize or approve any “written communication” (as defined in Rule 405
under the Act) that constitutes an offer to sell or solicitation of any offer to buy
the Offered Notes.
(b) The Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is duly qualified to transact business
and is in good standing in each jurisdiction in the United States 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.
(c) The Company has, and will have, the requisite power to execute and deliver any
other agreement or document executed by it in connection with the issuance and sale of the
related Offered Notes and this Agreement and to perform its obligations hereunder.
(d) Each of the Program Documents and this Agreement, including the Terms Agreement,
has been, or will be, duly and validly authorized, executed and delivered by the Company,
and each of the Program Documents and this Agreement constitutes, or will constitute, the
valid, legal and binding obligation of the Company, enforceable against the Company in
accordance with its terms.
(e) The Offered Notes will conform to the description thereof contained in the
Preliminary Prospectus and 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.
(f) Neither the execution and delivery by the Company of any Program Document or this
Agreement nor the consummation by the Company of the transactions contemplated herein or
therein, nor the issuance of the Offered Notes by the Issuer or the public offering thereof
as contemplated in the Prospectus, will conflict in any material respect with or result in a
material breach of, or constitute a material default (with notice or passage of time or
both) under, or result in the imposition of any lien, pledge, charge, encumbrance, adverse
claim or other security interest of any other Person upon any of the property or assets of
the Company (except as required or permitted pursuant thereto or hereto), pursuant to any
material mortgage, indenture, loan agreement, contract or other instrument to which the
Company is party or by which it is bound, nor will such action result in any violation by
the Company of any provisions of any applicable law, administrative regulation or
administrative or court decree, the certificate of incorporation or by-laws of the Company.
The Company is not in violation of its certificate of incorporation, 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.
(g) No action by the Company in connection with the issuance or sale of the Offered
Notes, the consummation by the Company of any other of the transactions herein contemplated,
or the fulfillment by the Company of the terms hereof, will conflict with any statute, order
or regulation applicable to the Company with respect to the offering of the Offered 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.
(h) No legal or governmental proceedings are pending to which the Company is a party or
of which any property of the Company is the subject, which if determined adversely to the Company would, individually or in the aggregate, have a material
adverse effect on the financial position, shareholders’ equity or results of operations of
the Company; and to the best of the Company’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,
by the Company in connection with (i) the execution and delivery by the Company of any
Program Document or this Agreement or the performance by the Company of any Program Document
or this Agreement or (ii) the offer, sale or delivery of the Offered Notes, 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 and adversely
affect the ability of the Company to perform its obligations under any Program Document or
this Agreement.
(j) The Company 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 Preliminary Prospectus and the Prospectus, except to the extent that the failure to have
such licenses, certificates, authorities or permits does not have a material adverse effect
on the Offered Notes or the financial condition of the Company, and the Company has not
received any notice of proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would materially and adversely affect the
conduct of its business, operations or financial condition.
(k) The Company is not now, and following the issuance of the Offered Notes, the
Company will not be, an “investment company” as such term is defined in the Investment
Company Act of 1940, as amended.
(l) On the Closing Date, (i) the Company will have good and marketable title to the
related Receivables, free and clear of any Lien, except to the extent permitted in the
Program Documents, (ii) the Company will not have assigned to any Person any of its right,
title or interest in such Receivables or in the Program Documents other than pursuant to the
Program Documents, and (iii) the Company will have the power and authority to sell such
Receivables to the Issuer.
(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 Company
or GE Capital.
(n) The Company was not, on the date on which the first bona fide offer of the Offered
Notes sold pursuant to this Agreement was made, an “ineligible issuer” as defined in Rule
405 under the Act.
2. Purchase and Sale.
(a) On the basis of the representations, warranties and agreements set forth herein and
in the applicable Terms Agreement, but subject to the terms and conditions herein set forth,
the Company agrees to sell to each Underwriter, and each Underwriter agrees to purchase from
the Company, the applicable Offered Notes at the purchase price and in the principal amount
of such Offered Notes set forth in such Terms Agreement.
(b) 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 (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 Representatives 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 Representatives may request not less than
two full business days in advance of such Closing Date.
The Company agrees to notify the Representatives 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.
4. Offering by the Underwriters.
(a) It is understood that each Underwriter proposes to offer the Offered Notes for sale
to the public as set forth in the Prospectus.
(b) Each Underwriter (severally and not jointly) represents and warrants that it has
complied in all material respects, and agrees that it will comply in all material respects,
with all applicable securities laws and regulations in each jurisdiction in which it
purchases, offers, sells or delivers the Offered Notes or distributes the Prospectus.
Without limiting the foregoing, each Underwriter agrees that all offers, solicitations and
sales shall be made in compliance with all applicable laws and regulations. Furthermore,
such Underwriter shall comply with all applicable laws and regulations in connection with
the use of Free Writing Prospectuses, including but not limited to Rules 164 and 433 of the
Act.
(c) Each Underwriter shall offer and/or solicit offers for the Offered Notes for sale
to the public as set forth in the Preliminary Prospectus and 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 Representatives 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 Representatives 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 Representatives 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 Representatives to qualify the Offered Notes
for sale under the laws of such jurisdictions as the Representatives may designate and to
maintain such qualifications in effect so long as required for the initial distribution of
the Offered Notes; provided, 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 Representatives have 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 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.
(f) The Company will cause the Final Terms (as defined in Section 8(b) hereof) to the
transmitted to the Commission for filing pursuant to Rule 433 under the Act by means reasonably calculated to result in filing with the Commission pursuant to such rule.
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 Representatives) shall have furnished to the Representatives an opinion
or opinions, dated the Closing Date, in each case in form and substance reasonably
satisfactory to the Representatives and counsel for the Representatives, 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
Representatives an opinion, dated the Closing Date, in form and substance reasonably
satisfactory to the Representatives and counsel for the Representatives.
(d) The Representatives shall have received from XxXxx Xxxxxx LLP, counsel for the
Representatives, such opinion or opinions, dated the Closing Date, with respect to the
issuance and sale of the Offered Notes, the Prospectus and such other related matters as the
Representatives may reasonably require, and the Company shall have furnished to such counsel
such documents as the Representatives may reasonably request for the purpose of enabling
them to pass upon such matters.
(e) The Company shall have furnished to the Representatives 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 signatory
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, 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
Representatives) shall have furnished to the Representatives an opinion, dated the Closing
Date, in form and substance reasonably satisfactory to the Representatives.
(g) Counsel for the Owner Trustee (who shall be satisfactory to the Representatives)
shall have furnished to the Representatives an opinion, dated the Closing Date, in form and
substance reasonably satisfactory to the Representatives.
(h) Counsel for the Company (who shall be satisfactory to the Representatives) shall
have furnished to the Representatives opinions, dated the Closing Date, in form and
substance reasonably satisfactory to the Representatives, relating to certain bankruptcy
matters and Federal income tax matters.
(i) The Representatives shall have received a letter, dated the Closing Date or such
other date as may be agreed upon between the Representatives and the Company, from certified
public accountants (who shall be satisfactory to the Representatives), substantially in the
form previously approved by the Representatives.
(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 Representatives
such further information, certificates and documents as the Representatives 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 or GE Capital which in the
reasonable judgment of the Representatives, 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 any untrue statement or
alleged untrue statement of a material fact contained in (i) the Registration Statement,
(ii) the Preliminary Prospectus (it being understood that such indemnification with respect
to the Preliminary Prospectus does not include the omission of pricing and price-dependent
information, which information shall of necessity appear only in the final Prospectus), (iii) the Prospectus, (iv) the
Designated Static Pool Information or (v) information provided by the Company or GE Capital
to the extent used in the written communications constituting an electronic road show within
the meaning of Rule 433(h) under the Act, or are caused by the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not
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misleading; and will reimburse each Underwriter and Controlling Person for any legal or
other expenses reasonably incurred by such Underwriter or such Controlling Person in
connection with investigating or defending any such loss, claim, damage, liability or
action; provided, 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 the untrue statement or omission
of a material fact contained in such Prospectus was corrected (a “Corrected
Statement”) in a supplement to the Prospectus and such supplement was furnished by the
Company or GE Capital to such Underwriter reasonably prior to the delivery of the
confirmation of the sale of such Offered Notes, but such Underwriter did not furnish such
supplement to the Prospectus containing the corrected statement to such investor 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.
(b) Each Underwriter agrees to indemnify and hold harmless the Company, GE Capital and
each of their respective directors and officers who signs the Registration Statement
relating to the Offered Notes, and each Person who controls the Company or GE Capital within
the meaning of the Act or the Exchange Act (i) to the same extent as the foregoing
indemnities from the Company and GE Capital to such Underwriter, but only with reference to
the Underwriters’ Information and (ii) with respect to the failure on the part of such
Underwriter to deliver to any investor with whom such Underwriter entered into a “contract
of sale” within the meaning contemplated by Rule 159 of the Act (a “Contract of
Sale”), prior to the time such investor entered into such Contract of Sale, the
Preliminary Prospectus. 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 columns
labeled “Class A Underwriters” and “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”, 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 columns labeled “Class B Underwriters” and
“Principal Amount of Class B 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 B Notes”, on the cover page of the
Prospectus Supplement in the table under the heading “Class C Notes” and on the line across
from “Price to public,” in the columns labeled “Class C
| 11 | Underwriting Agreement |
Underwriters” and “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 sole information
furnished in writing by or on behalf of the Underwriters for inclusion in the Prospectus,
and the Underwriters confirm that such statements are correct.
(c) 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, 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, 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), (b)
or (c) of this Section 7, representing the indemnified parties under subparagraph
(a), (b) or (c), 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 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
| 12 | Underwriting Agreement |
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.
(d) If the indemnification provided for in paragraph (a), (b) or (c) 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 and the Underwriters may be subject
in such proportion as is appropriate to reflect the relative benefits received by the
Company and GE Capital on the one hand and the Underwriters on the other from the offering
of the Offered Notes. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then each indemnifying party shall contribute
to such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of the
Company and GE Capital on the one hand and of an Underwriter, 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. Notwithstanding the other provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the underwriting
discount received by it. 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, the Preliminary Prospectus 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.
(e) The Company, GE Capital and the Underwriters agree that it would not be just and
equitable if contribution pursuant to Section 7(d) 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(d)
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
| 13 | Underwriting Agreement |
such expenses pursuant to Section 7(c); which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent that the
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 within the meaning of
either the Act or the Exchange Act, each officer or director of the Company or GE Capital who shall
have signed the Registration Statement and each director of the Company or GE Capital shall have
the same rights to contribution as the Company or GE Capital, as applicable, subject in each case
to the immediately preceding sentence of this paragraph.
8. Offering Communications. (a) For purposes hereof, “Free Writing
Prospectus” shall have the meaning given such term in Rule 405 under the Act. “Issuer Free
Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433 under
the Act, relating to the Offered Notes that (i) is required to be filed with the Commission by the
Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i) under the Act because it
contains a description of the Offered Notes or of the offering that does not reflect the final
terms. “Permitted Additional Information” shall mean information that is included in any
road show presentation the Issuer, the Company or GE Capital has approved (each, a “Road
Show”).
(b) Other than the Preliminary Prospectus, Prospectus and the Permitted Additional
Information, each Underwriter represents, warrants and agrees with GE Capital and the
Company that: (i) it has not made, used, prepared, authorized, approved or referred to and
will not make, use, prepare, authorize, approve or refer to any “written communication” (as
defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an
offer to buy the Offered Notes, including, but not limited to, any “ABS informational and
computational materials” as defined in Item 1101(a) of Regulation AB under the Act; and (ii)
it shall, for a period of at least three years after the date of the applicable Terms
Agreement, maintain written and/or electronic records regarding each Contract of Sale
entered into by such Underwriter, the date, identity of the investor and the terms of such
Contract of Sale, as set forth in the related confirmation of trade. Notwithstanding the
foregoing, the Company agrees that the Underwriters may disseminate information on Bloomberg
to prospective investors relating solely to (i) information of the type identified in Rule
134 of the Act, (ii) information included in the Preliminary Prospectus, (iii) the status of allocations and subscriptions of the
Offered Notes, expected pricing parameters of the Offered Notes and the yields and weighted
average lives of the Offered Notes, and (iv) information constituting final terms of the
Offered Notes within the meaning of Rule 433(d)(5)(ii) under the Act. Each Underwriter
represents that communications containing information described in clauses (i), (ii) and
(iii) of the immediately preceding sentence shall not be required to be filed with the
| 14 | Underwriting Agreement |
Commission as Free Writing Prospectuses. No later than 10:00 A.M. New York City time on the
first day following determination of the interest rates and initial principal amounts of the
Offered Notes, the Underwriters shall provide to the Company, for filing with the Commission
as provided in Section 5(f), a Free Writing Prospectus (the “Final Terms”)
containing final terms of the Offered Notes.
(c) Each Underwriter that uses the Internet or other electronic means to offer or sell
the Notes severally represents that it has in place, and covenants that it shall maintain,
internal controls and procedures which it reasonably believes to be sufficient to ensure
compliance in all material respects with all applicable legal requirements under the Act.
9. Agreement of each Underwriter. (a) Each Underwriter agrees that (i) if the
Prospectus is not delivered with the confirmation in reliance on Rule 172 under the Act, it will
include in every confirmation sent out by such Underwriter the notice required by Rule 173 under
the Act, informing the investor that the sale was made pursuant to the Registration Statement and
that the investor may request a copy of the Prospectus from the Underwriter; (ii) if a paper copy
of the Prospectus is requested by a Person who receives a confirmation, such Underwriter shall
deliver a paper copy of such Prospectus to such Person; and (iii) 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 9; for example, if the Prospectus is delivered to such Underwriter by or on behalf
of the Company in a single electronic file in a read-only format, then such Underwriter will
deliver the electronic copy of the Prospectus in the same single electronic file in read-only
format. Each Underwriter further agrees that if it delivers to an investor the Prospectus in
read-only format, upon such Underwriter’s receipt of a request from the investor within the period
for which delivery of the Prospectus is required, such Underwriter will promptly deliver or cause
to be delivered to the investor, without charge, a paper copy of the Prospectus.
(b) Prior to the Closing Date, each Underwriter shall notify GE Capital and the Company
of (i) the date on which the Preliminary Prospectus is first used and (ii) the time of the
first Contract of Sale to which such Preliminary Prospectus relates.
(c) Each Underwriter represents and agrees (i) that it did not enter into any
commitment to sell any Offered Notes prior to the Time of Sale, it did not enter into any
Contract of Sale for any Offered Notes prior to the Time of Sale and, without limiting the
foregoing, it did not enter into a Contract of Sale with an investor in the Offered Notes
prior to the delivery of the Preliminary Prospectus to such investor, and (ii) that it will,
at any time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Offered Notes, deliver to each investor to
whom Offered Notes are sold by it during the period prior to the filing of the final
Prospectus (as notified to such Underwriter by the Company or by GE Capital), prior to the
applicable time of any such Contract of Sale with respect to such investor, the Preliminary
Prospectus.
| 15 | Underwriting Agreement |
(d) In relation to each member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), each
Underwriter represents and agrees with the Company that with effect from and including the
date on which the Prospectus Directive is implemented in that Relevant Member State (the
“Relevant Implementation Date”) it has not made and will not make an offer of
Offered Notes to the public in that Relevant Member State prior to the publication of a
prospectus in relation to the Offered Notes which has been approved by the competent
authority in that Relevant Member State or, where appropriate, approved in another Relevant
Member State and notified to the competent authority in that Relevant Member State, all in
accordance with the Prospectus Directive, except that it may, with effect from and including
the Relevant Implementation Date, make an offer of Offered Notes to the public in that
Relevant Member State at any time in any circumstances which do not require the publication
by the issuer of a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this Section 9(d), (A) the expression an “offer of Offered
Notes to the public” in relation to any Offered Notes in any Relevant Member State means the
communication in any form and by any means of sufficient information on the terms of the
offer and the Offered Notes to be offered so as to enable an investor to decide to purchase
or subscribe the Offered Notes, as the same may be varied in that Relevant Member State by
any measure implementing the Prospectus Directive in that Relevant Member State, (B) the
expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State and (C) the countries comprising the
“European Economic Area” are Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia,
Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Xxxxxxxxx, Xxxxxxxxxx,
Xxxxx, Xxxxxxxxxxx, Poland, Portugal, Slovak Republic, Slovenia, Spain, Sweden, United
Kingdom, Iceland, Liechtenstein and Norway.
(e) If the Company, GE Capital or an Underwriter determines or becomes aware that any
“written communication” (as defined in Rule 405 under the Act) (including the Preliminary
Prospectus) or oral statement (when considered in conjunction with all information conveyed
at the time of the Contract of Sale) made or prepared by the Company or such Underwriter
contains an untrue statement of material fact or omits to state a material fact necessary to
make the statements, in light of the circumstances under which they were made, not
misleading at the time that a Contract of Sale was entered into, either the Company or such
Underwriter may prepare corrective information, with notice to the other party and such
Underwriter shall deliver such information in a manner reasonably acceptable to both
parties, to any Person with whom a Contract of Sale was entered into based on such written
communication or oral statement, and such information shall provide any such Person with the
following:
(i) adequate disclosure of the contractual arrangement;
(ii) adequate disclosure of the Person’s rights under the existing Contract of
Sale at the time termination is sought;
| 16 | Underwriting Agreement |
(iii) adequate disclosure of the new information that is necessary to correct
the misstatements or omissions in the information given at the time of the original
Contract of Sale; and
(iv) a meaningful ability to elect to terminate or not terminate the prior
Contract of Sale and to elect to enter into or not enter into a new Contract of
Sale.
Any costs or losses incurred in connection with any such termination or reformation shall be
subject to Section 7.
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 Offered 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
Representatives 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 or
inadvisable 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 shall (except for
the liability of the Company under 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 Underwriters 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, 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,
| 17 | Underwriting Agreement |
and their successors and assigns, and no other Person will have any right or obligation hereunder.
No purchaser of any Offered Note from the Underwriters shall be deemed a successor or assign by
reason of such purchase.
13. APPLICABLE LAW.
(a) THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW, BUT WITHOUT REGARD TO
ANY OTHER CONFLICT OF LAWS PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES
OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS
LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO
ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED, THAT EACH PARTY
HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY. EACH PARTY HERETO SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK
OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE
BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT
AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS,
COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH
PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 16 AND THAT SERVICE SO MADE SHALL
BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY’S ACTUAL RECEIPT THEREOF OR THREE DAYS
AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION
SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
| 18 | Underwriting Agreement |
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST
QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT
PERSON AND THE PARTIES WISH
APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES
DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION,
THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING
BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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. Counterparts. This Agreement may be executed in any number of separate
counterparts, each of which shall collectively and separately constitute one agreement. Executed
counterparts may be delivered electronically.
16. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to a Representative, will be delivered to it at its address first above
written; or if sent to the Company, will be delivered to 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxx,
Xxxxxxxx 00000, Attention: General Counsel; or if sent to GE Capital, will be delivered to 00 Xxx
Xxxxxxxxx Xxxx, Xxxxxxx, XX, 00000, Attn: Manager, Securitizations.
17. 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.
18. Nature of Underwriters’ Services. The Company acknowledges and agrees that each
Underwriter in providing investment banking services to the Company in connection with
the offering, including in acting pursuant to the terms of this Agreement, has acted and is
acting as an independent contractor and not as a fiduciary and the Company does not intend any
Underwriter to act in any capacity other than independent contractor, including as a fiduciary.
For avoidance of doubt, the Underwriters are not acting as agents or representatives of the Issuer.
[Signatures Follow]
| 19 | Underwriting Agreement |
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 Company, GE Capital and the Representatives.
| Very truly yours, | ||||
| CDF Funding, Inc. |
||||
| By: | /s/ Xxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxx Xxxxx | |||
| Title: | Vice President | |||
| General Electric Capital Corporation |
||||
| By: | /s/ Xxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxx Xxxxx | |||
| Title: | Attorney-in-Fact | |||
| S-1 | Underwriting Agreement |
The foregoing Agreement is hereby confirmed and
accepted on the date first above written.
| Banc of America Securities LLC, as a Representative | ||||
By:
|
/s/ Mert Arinc | |||
| Name: Mert Arinc | ||||
| Title: Principal | ||||
| Greenwich Capital Markets, Inc. , as a Representative | ||||
By:
|
/s/ Xxxxxx X. XxXxxxxx | |||
| Name: Xxxxxx X. XxXxxxxx | ||||
| Title: Managing Director | ||||
| S-2 | Underwriting Agreement |
EXHIBIT A
GE DEALER FLOORPLAN
MASTER NOTE TRUST ASSET BACKED NOTES
MASTER NOTE TRUST ASSET BACKED NOTES
TERMS AGREEMENT
| Dated: [ ] | ||
To:
|
CDF Funding, Inc. | |
| General Electric Capital Corporation | ||
Re:
|
Underwriting Agreement, dated June [26], 2006 among CDF Funding, Inc., | |
| General Electric Capital Corporation and the Representatives referred to therein |
1. Offered Notes.
The notes described below in this Section 1 are the “Offered Notes” for the
purpose of this Terms Agreement and for purposes of the above-referenced Underwriting
Agreement (the “Underwriting Agreement”). The Underwriting Agreement is
incorporated herein and made a part hereof.
| Principal | Final | |||||||
| Class | Amount | Interest Rate | Maturity Date | |||||
| A-1 | Underwriting Agreement |
2. Underwriters
The Underwriters named below are the “Underwriters” for the purpose of this Terms
Agreement and for the Underwriting Agreement.
| Underwriter | Class Purchased | $ Purchased | ||||
| A | $ | |||||
| B | $ | |||||
| C | $ | |||||
| A | $ | |||||
| B | $ | |||||
| C | $ | |||||
| A | $ | |||||
| B | $ | |||||
| C | $ | |||||
| A | $ | |||||
| B | $ | |||||
| C | $ | |||||
| A | $ | |||||
| B | $ | |||||
| C | $ | |||||
3. Underwriting Liability
| Underwriting Liability | Class A | Class B | Class C | |||||||||
| $ | $ | $ | ||||||||||
Total Amount |
$ | $ | $ | |||||||||
| A-2 | Underwriting Agreement |
4. Purchase Price, Discounts and Concessions
| Class A | Class B | Class C | ||||||||||
Gross Purchase Price |
% | % | % | |||||||||
Underwriting Discount |
||||||||||||
Net Purchase Price |
||||||||||||
Maximum Dealer Selling Concessions |
||||||||||||
Maximum Dealer Reallowance Discounts |
||||||||||||
5. Time of Sale
[ ]:[ ] [ ].m. (New York City time) (U.S.) on [ ], 200[ ] (the time the
first Contract of Sale was entered into as designated by the Representatives.)
| A-3 | Underwriting Agreement |
The Underwriters agree, severally and not jointly, to purchase the Offered Notes subject to
the terms and provisions of this Terms Agreement and the Underwriting Agreement.
| [ ], for themselves and as representatives of the other several Underwriters named in this Terms Agreement |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| A-4 | Underwriting Agreement |
Accepted and Agreed:
| CDF Funding, inc. | ||||
By:
|
||||
| Name: | ||||
| Title: | ||||
| General Electric Capital Corporation | ||||
By:
|
||||
| Name: | ||||
| Title: | ||||
| A-5 | Underwriting Agreement |
