Exhibit 1.1
GE DEALER FLOORPLAN MASTER NOTE TRUST
FORM OF UNDERWRITING AGREEMENT
[_____]
acting on behalf of [itself] [themselves] and as the
Representative[s] of the Underwriters named in the
Terms Agreement referred to herein (the "Representative[s]")
[Date]
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 the Series [_____] 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
2 Underwriting Agreement
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 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
3
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) 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 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 and the
Prospectus, 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.
4
(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.
5
(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.
6
(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.
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
7
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.
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:
8
(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,
9
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 the Registration Statement, 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), the Prospectus or the Designated Static Pool
Information, 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 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
10
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 reasonably 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 (as defined below),
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 Underwriter" 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
Underwriter" 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
Underwriter" 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 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
11
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 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
12
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 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
13
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. Other than the Preliminary Prospectus and the
Prospectus, 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.
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,
and it did not enter into any Contract of Sale for any Offered Notes prior
to the Time of Sale 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.
14
(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" within the meaning of Rule 159 under the Act and all
Commission guidance relating to such rule (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;
15
(ii) adequate disclosure of the Person's rights under the
existing Contract of Sale at the time termination is sought;
(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.
16
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, 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.
17
(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.
18
[Signatures Follow]
19
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:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-1
The foregoing Agreement is hereby confirmed and accepted on the date first above
written.
[_____________], as Representative[s]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
S-2
EXHIBIT A
GE DEALER FLOORPLAN
MASTER NOTE TRUST ASSET BACKED NOTES
TERMS AGREEMENT
Dated: _________ [_____]
To: CDF FUNDING, INC.
GENERAL ELECTRIC CAPITAL CORPORATION
Re: Underwriting Agreement, dated [_______________], among CDF Funding, Inc.,
General Electric Capital Corporation and the Representative[s] 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
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
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 [_____],
2006 (the time the first Contract of Sale was entered into as designated by
the Representatives.)
A-3
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
Accepted and Agreed:
CDF FUNDING, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
A-5
