Exhibit 1.1
GE DEALER FLOORPLAN MASTER NOTE TRUST
Series 2005-2
$714,000,000 Class A Asset-Backed Notes
$22,600,000 Class B Asset-Backed Notes
$13,400,000 Class C Asset-Backed Notes
UNDERWRITING AGREEMENT
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(the "Underwriter")
October 12, 2005
Ladies and Gentlemen:
CDF Funding, Inc., a Delaware corporation (the "Company"), proposes to
cause GE Dealer Floorplan Master Note Trust (the "Issuer") to issue $714,000,000
aggregate principal amount of Class A Asset Backed Notes, Series 2005-2 (the
"Class A Notes"), $22,600,000 aggregate principal amount of the Class B Asset
Backed Notes, Series 2005-2 (the "Class B Notes") and $13,400,000 aggregate
principal amount of the Class C Asset Backed Notes, Series 2005-2 (the "Class C
Notes", and together with the Class A Notes and the Class B Notes, the "Offered
Notes"). The offering of the Offered Notes by the Underwriter pursuant to this
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 (as amended, supplemented or otherwise
modified, 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"), as supplemented
by Supplement No. 1 to Master Indenture, dated as of May 5, 2005 ("Supplement
No. 1"), and the Series 2005-2 Indenture Supplement with respect to the Offered
Notes, to be dated as of the Closing Date (the "Indenture Supplement" and,
together with the Master Indenture and Supplement No. 1, the "Indenture").
The primary assets of the Issuer are (i) a certificate (the "Note Trust
Certificate") representing a beneficial interest in the assets held in
Distribution Financial Services Floorplan Master Trust (the "DFS Trust"), issued
pursuant to the Series 2004-NTC Supplement, dated as of August 12, 2004, to the
Amended and Restated Pooling and Servicing Agreement, dated as of April 1, 2000
(as amended, restated, modified or supplemented, the "Pooling and Servicing
Agreement"), among GE Commercial Distribution Finance Corporation ("CDF"),
formerly known as Deutsche Financial Services Corporation, as servicer,
Wilmington Trust Company, successor to The Chase Manhattan Bank (the "DFS
Trustee"), as trustee, and CDF Financing, L.L.C., a Delaware limited liability
company, and (ii) such assets that the Company may acquire from time to time
pursuant to a Receivables Sale Agreement, dated as of August 12, 2004 (the
"Receivables Sale Agreement"), among the Company, CDF, Transamerica Commercial
Finance Corporation and Brunswick Accepance Company, LLC ("BAC"), as amended by
Amendment No. 1 to Receivables Sale Agreement (the "RSA Amendment"), dated as of
May 5, 2005, 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, as amended by Amendment No. 1
to Receivables Purchase and Contribution Agreement, dated as of May 5, 2005 (the
"RPCA Amendment"). The Issuer has also acquired the Note Trust Certificate
pursuant to the RPCA. GE Capital has agreed to conduct the servicing, collection
and administration of the Receivables owned by the Issuer pursuant to a
Servicing Agreement, dated as of August 12, 2004 (the "Servicing Agreement"),
between the Issuer and GE Capital, as master servicer, as amended by Amendment
No. 1 to Servicing Agreement (the "Servicing Amendment"), dated as of May 5,
2005.
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 RPCA Amendment, the Receivables Sale Agreement, the RSA
Amendment, the Servicing Agreement, the Servicing Amendment and the
Administration Agreement are referred to herein, collectively, as the "Program
Documents."
This Underwriting Agreement is referred to herein as this "Agreement."
To the extent not defined herein, capitalized terms used herein have the
meanings assigned in the Program Documents.
The Company and GE Capital hereby agree, severally and not jointly,
with the Underwriter as follows:
1. Representations and Warranties. The Company represents and warrants
to and agrees with the Underwriter, as of the date hereof, that:
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(a) A registration statement on Form S-3 (Nos. 333-115582,
▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and 333-115582-04), including a form of
prospectus and such amendments thereto as may have been filed prior to
the date hereof, relating to the Offered Notes and the offering thereof
in accordance with Rule 415 under the Securities Act of 1933, as
amended (the "Act"), has been filed with, and has been declared
effective by, the Securities and Exchange Commission (the
"Commission"). If any post-effective amendment to such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent such amendment has been
declared effective by the Commission. For purposes of this Agreement,
"Effective Time" means the date and time as of which such registration
statement, or the most recent post-effective amendment thereto, if any,
was declared effective by the Commission, and "Effective Date" means
the date of the Effective Time. Such registration statement, as amended
at the Effective Time, is hereinafter referred to as the "Registration
Statement." The Company proposes to file with the Commission pursuant
to Rule 424(b) ("Rule 424(b)") under the Act a supplement (the
"Prospectus Supplement") to the prospectus included in the Registration
Statement (such prospectus in the form most recently revised and filed
with the Commission pursuant to Rule 424(b), is hereinafter referred to
as the "Base Prospectus") relating to the Offered Notes and the method
of distribution thereof. The Base Prospectus and the Prospectus
Supplement, together with any amendment thereof or supplement thereto,
are hereinafter referred to as the "Prospectus."
(b) The Registration Statement, as of the Effective Date,
conformed in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder and of the Trust
Indenture Act of 1939, as amended; on the date of this Agreement, the
Prospectus conforms, and as of the time of filing the Prospectus
pursuant to Rule 424(b), the Prospectus will conform, in all material
respects to the requirements of the Act and the rules and regulations
of the Commission thereunder; the Registration Statement, at the
Effective Time, did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the
Prospectus, as of its date, and as of the time of filing pursuant to
Rule 424(b), will not include any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they are made,
not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from such Registration Statement or such Prospectus in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of the Underwriter specifically for use in the
preparation thereof, which information consists of the Underwriter's
Information (as defined herein).
(c) 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.
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(d) 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.
(e) Each of the Program Documents and this 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.
(f) The Offered Notes will conform to the description thereof
contained in the Prospectus and as of the Closing Date will be duly and
validly authorized and, when validly executed, countersigned, issued
and delivered in accordance with the Indenture and sold to the
Underwriter as provided herein, will be validly issued and outstanding
and entitled to the benefits of the related Indenture.
(g) 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.
(h) 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.
(i) 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
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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.
(j) 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.
(k) 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 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.
(l) 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.
(m) 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.
(n) 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.
2. Purchase and Sale.
(a) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein set forth, the Company agrees to sell to the Underwriter, and
the Underwriter agrees to purchase from the Company, at a purchase
price of 99.860% of the principal amount thereof, all of the Class A
Notes.
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(b) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein set forth, the Company agrees to sell to the Underwriter, and
the Underwriter agrees to purchase from the Company, at a purchase
price of 99.780% of the principal amount thereof, all of the Class B
Notes.
(c) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein set forth, the Company agrees to sell to the Underwriter, and
the Underwriter agrees to purchase from the Company, at a purchase
price of 99.715% of the principal amount thereof, all of the Class C
Notes.
(d) The parties hereto agree that settlement for all
securities pursuant to this Agreement shall take place on the terms set
forth herein and not as set forth in Rule 15c6-1(a) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
3. Delivery and Payment. Delivery of and payment for the Offered Notes
shall be made at the offices of ▇▇▇▇▇, Brown, ▇▇▇▇ & 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 Underwriter and the Company (such date and time being herein called
the "Closing Date"). Delivery of such Offered Notes shall be made to the
Underwriter against payment by the Underwriter 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 Underwriter
may request not less than two full business days in advance of such Closing
Date.
The Company agrees to notify the Underwriter 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 Underwriter.
(a) It is understood that the Underwriter proposes to offer
the Offered Notes for sale to the public as set forth in the
Prospectus.
(b) The Underwriter 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 the 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 Underwriter of the
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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 Underwriter 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 Underwriter a copy of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by the Underwriter may be required by the Act,
as many copies of the Prospectus as the 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
Underwriter to qualify the Offered Notes for sale under the laws of
such jurisdictions as the Underwriter 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 Underwriter 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 Underwriter has reasonably requested pursuant
to Section 5(d), for any fees charged by investment rating agencies for
the rating of the Offered Notes, and for expenses incurred in
distributing the Prospectus to the Underwriter. If the transactions
contemplated by this Agreement are not consummated because any
condition to the obligations of the Underwriter 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
Underwriter, the Company will reimburse the Underwriter upon demand for
all out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been incurred by the Underwriter in
connection with the proposed purchase, sale and offering of the Offered
Notes. Except as herein provided, the Underwriter 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.
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6. Conditions to the Obligations of the Underwriter. The obligations of
the Underwriter 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 Underwriter) shall have furnished to
the Underwriter an opinion or opinions, dated the Closing Date, in each
case in form and substance reasonably satisfactory to the Underwriter
and counsel for the Underwriter, 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 Underwriter an opinion, dated the Closing
Date, in form and substance reasonably satisfactory to the Underwriter
and counsel for the Underwriter.
(d) The Underwriter shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP,
counsel for the Underwriter, such opinion or opinions, dated the
related Closing Date, with respect to the issuance and sale of the
Offered Notes, the Prospectus and such other related matters as the
Underwriter may reasonably require, and the Company shall have
furnished to such counsel such documents as the Underwriter may
reasonably request for the purpose of enabling them to pass upon such
matters.
(e) The Company shall have furnished to the Underwriter 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 Underwriter) shall have furnished to the
Underwriter an opinion, dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriter.
(g) Counsel for the Owner Trustee (who shall be satisfactory
to the Underwriter) shall have furnished to the Underwriter an opinion,
dated the Closing Date, in form and substance reasonably satisfactory
to the Underwriter.
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(h) Counsel for the Company (who shall be satisfactory to the
Underwriter) shall have furnished to the Underwriter opinions, dated
the Closing Date, in form and substance reasonably satisfactory to the
Underwriter, relating to certain insolvency and bankruptcy matters and
Federal income tax matters.
(i) The Underwriter shall have received a letter, dated the
Closing Date or such other date as may be agreed upon between the
Underwriter and the Company, from certified public accountants (who
shall be satisfactory to the Underwriter), substantially in the form
previously approved by the Underwriter.
(j) The Offered Notes shall have received the ratings
specified in the Prospectus.
(k) Prior to the Closing Date, the Company shall have
furnished to the Underwriter such further information, certificates and
documents as the Underwriter 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
Underwriter, 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 the Underwriter and each Person who
controls the 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 or the Prospectus, 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 the Underwriter and Controlling Person for any legal or other
expenses reasonably incurred by the Underwriter or such Controlling
Person in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, 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 the 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 the
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Underwriter (the "Underwriter's Information"), and (ii) such indemnity
with respect to any Corrected Statement (as defined below) in such
Prospectus shall not inure to the benefit of the Underwriter (or any
Controlling Person) from whom the Person asserting any loss, claim,
damage or liability purchased the Offered Notes that are the subject
thereof if such Person was not sent a copy of a Prospectus at or prior
to the confirmation of the sale of such Offered Notes and the untrue
statement or omission of a material fact contained in such Prospectus
was corrected (a "Corrected Statement") in such other supplement to the
Prospectus and such supplement was furnished by the Company or GE
Capital to the 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.
The Underwriter agrees to indemnify and hold harmless the
Company, GE Capital and each of their respective directors, managers
and officers who signs the Registration Statement relating to the
Offered Notes, and each Person who controls the Company or GE Capital
within the meaning of the Act or the Exchange Act to the same extent as
the foregoing indemnities from the Company and GE Capital to the
Underwriter, but only with reference to written information furnished
to the Company or GE Capital by or on behalf of the Underwriter
specifically for use in the preparation of the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition
to any liability which the 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 Underwriter for inclusion
in the Prospectus, and the Underwriter confirms that such statements
are correct.
(b) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party
in writing of the commencement thereof; but the omission or failure to
so notify the indemnifying party will not relieve it from any liability
which it
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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) or (b) of this Section 7, representing the indemnified
parties under subparagraph (a) or (b), who are parties to such action),
(ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying
party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). Unless it shall assume the defense of any
proceeding, the indemnifying party shall not be liable for any
settlement of any proceeding, effected without its written consent, but
if settled with such consent or if there shall be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss, claim, damage or liability
by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such
action and does not include a statement as to, or an admission of,
fault, culpability or failure to act by or on behalf of any indemnified
party.
(c) If the indemnification provided for in paragraph (a) or
(b) of this Section 7 is due in accordance with its terms but is for
any reason held by a court to be unavailable from the Company, GE
Capital or the 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 Underwriter may be subject in
11
such proportion as is appropriate to reflect the relative benefits
received by the Company and GE Capital on the one hand and the
Underwriter on the other from the offering of the Offered Notes. 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 the 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 the 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 the Underwriter with respect to the Offered
Notes. Notwithstanding the other provisions of this Section 7, the
Underwriter shall not 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 Underwriter on the
other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact in the
Registration Statement or the Prospectus or the omission or alleged
omission to state a material fact therein or necessary to make the
statements contained therein, in light of the circumstances under which
they were made, not misleading relates to information supplied by the
Company or GE Capital or by the Underwriter, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(d) The Company, GE Capital and the Underwriter agree that it
would not be just and equitable if contribution pursuant to Section
7(c) were determined by pro rata allocation or by any other method of
allocation which does not take account of the considerations referred
to above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in
Section 7(c) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim except where the indemnified party is required to
bear such expenses pursuant to Section 7(b); which expenses the
indemnifying party shall pay as and when incurred, at the request of
the indemnified party, to the extent that the 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(c), 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, director or manager of the Company or GE
Capital who shall have signed the Registration Statement and each director of
the Company or GE
12
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.
(e) Computational Materials and Structural Term Sheets. The Underwriter
represents and warrants to and agrees with the Company, as of the date of the
date hereof and as of the Closing Date, that it has not used, and will not use,
any Derived Information (as such term is defined below) in connection with the
offering of the Offered Notes. For purposes of this Agreement, "Derived
Information" means the type of information defined as Collateral Term Sheets,
Structural Term Sheets or Computational Materials (as such terms are interpreted
in the No-Action Letters). The terms "Collateral Term Sheet" and "Structural
Term Sheet" shall have the respective meanings assigned to them in the February
13, 1995 letter (the "PSA Letter") of Cleary, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ on
behalf of the Public Securities Association (which letter, and the Commission
staff's response thereto, were publicly available February 17, 1995), and with
respect to "Collateral Term Sheet" includes any subsequent Collateral Term Sheet
that reflects a substantive change in the information presented. The term
"Computational Materials" has the meaning assigned to it in the May 17, 1994
letter of ▇▇▇▇▇ & ▇▇▇▇ on behalf of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co., Inc. (which letter,
and the Commission staff's response thereto, were publicly available May 20,
1994) (the "▇▇▇▇▇▇ Letter", and together with the PSA Letter, the "No-Action
Letters").
8. Agreement of the Underwriter. The Underwriter agrees that (i) a
printed copy of the Prospectus will be delivered to each Person who receives a
confirmation of sale prior to or at the same time with such confirmation of
sale; (ii) if an electronic copy of the Prospectus is delivered by the
Underwriter for any purpose, such copy shall be the same electronic file
containing the Prospectus in the identical form transmitted electronically to
the Underwriter by or on behalf of the Company specifically for use by the
Underwriter pursuant to this Section 8; for example, if the Prospectus is
delivered to the Underwriter by or on behalf of the Company as a single
electronic file in pdf format, then the Underwriter will deliver the electronic
copy of the Prospectus in the same single electronic file in pdf format; and
(iii) it has not used, and during the period for which it has an obligation to
deliver a "prospectus" (as defined in Section 2(a)(10) of the Act) relating to
the Offered Notes (including any period during which the Underwriter has such
delivery obligation in its capacity as a "dealer" (as defined in Section
2(a)(12) of the Act)) it will not use, any internet Web site or electronic media
containing information for prospective investors, including, without limitation,
any internet Web site or electronic media maintained by third parties, in
connection with the offering of the Offered Notes, except in compliance with
applicable laws and regulations.
9. [Reserved].
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 Underwriter terminates this Agreement in accordance with
this
13
Section 10, the Company will reimburse the Underwriter for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been reasonably incurred by the Underwriter in connection with
the proposed purchase and sale of the Offered Notes.
(b) The obligations of the Underwriter to purchase the Offered Notes on
the Closing Date shall be terminable by the Underwriter by written notice
delivered by the Underwriter 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 Underwriter's 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 Underwriter 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 Underwriter
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, and their successors and assigns,
and no other Person will have any right or obligation hereunder. No purchaser of
any Offered Note from the Underwriter shall be deemed a successor or assign by
reason of such purchase.
13. APPLICABLE LAW.
(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
14
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.
(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.
15
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 the Underwriter, will be delivered to
it at its address first above written; or if sent to the Company, will be
delivered to ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel; or if sent to GE Capital, will be delivered to ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, Attn: Manager, Securitizations.
17. Non-Petition Covenant. Notwithstanding any prior termination of
this Agreement, the Underwriter shall not 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 Underwriter's Services. The Company acknowledges and
agrees that the 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 the Underwriter to act in
any capacity other than independent contractor, including as a fiduciary.
[Signatures Follow]
16
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 Underwriter.
Very truly yours,
CDF FUNDING, INC.
By: /s/ ▇▇▇▇ ▇. Peak
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
S-1
The foregoing Agreement is
hereby confirmed and accepted
on the date first above written.
DEUTSCHE BANK SECURITIES INC., as Underwriter
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
S-2