RFS HOLDING, L.L.C GE CAPITAL CREDIT CARD MASTER NOTE TRUST SERIES 2011-1 ASSET BACKED NOTES $600,000,000 Class A Notes UNDERWRITING AGREEMENT
EXHIBIT
1.1
RFS
HOLDING, L.L.C
SERIES
2011-1 ASSET BACKED NOTES
$600,000,000
Class A Notes
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
RBS
Securities Inc.
(together,
the “Underwriters”)
January
20, 2011
Ladies
and Gentlemen:
RFS
Holding, L.L.C., a limited liability company organized and existing under the
laws of the State of Delaware (the “Company”), proposes
to cause GE Capital Credit Card Master Note Trust (the “Issuer”) to issue
$600,000,000 aggregate principal amount of Class A Asset Backed Notes, Series
2011-1 (the “Class A
Notes”), $86,557,377 aggregate principal amount of Class B Asset Backed
Notes, Series 2011-1 (the “Class B Notes”) and
$57,049,180 aggregate principal amount of Class C Asset Backed Notes, Series
2011-1 (the “Class C
Notes” and, together with the Class A Notes and the Class B Notes, the
“Notes”). The
Class A Notes that each of the Underwriters agrees to purchase are referred to
herein as the “Offered
Notes”. The Class B Notes and Class C Notes will be sold
pursuant to a Note Purchase Agreement, to be dated on or about January 27, 2011
(the “Note Purchase
Agreement”), among the Company and the initial purchaser named
therein. The offering of the Offered Notes by the Underwriters
pursuant to this Agreement is referred to herein as the “Note
Offering”. The Company is a wholly-owned subsidiary of RFS
Holding, Inc. (“Holding”).
The
Issuer is a Delaware statutory trust formed pursuant to (a) a Trust
Agreement, dated as of September 25, 2003 (the “Trust Agreement”),
between the Company and BNY Mellon Trust of Delaware, as owner trustee (the
“Owner
Trustee”), and (b) the filing of a certificate of trust with the
Secretary of State of Delaware on September 24, 2003. The Notes will
be issued pursuant to a Master Indenture, dated as of September 25, 2003, and as
amended as of February 9, 2004, June 17, 2004, August 31, 2006, June 28, 2007,
May 22, 2008 and August 7, 2009 (the “Master Indenture”),
between the Issuer and Deutsche Bank Trust Company Americas, as indenture
trustee (the “Indenture Trustee”),
as supplemented by the Series 2011-1 Indenture Supplement with respect to the
Notes, to be dated on or about January 27, 2011 (the “Indenture Supplement”
and, together with the Master Indenture, the “Indenture”).
The
assets of the Issuer include, among other things, certain amounts due (the
“Receivables”)
on a pool of private label and co-branded credit card accounts of GE Money Bank
(the “Bank”).
The
Receivables are transferred by the Company to the Issuer pursuant to the
Transfer Agreement, dated as of September 25, 2003, and as amended as of
February 9, 2004, June 17, 2004, November 21, 2004, August 31, 2006,
December 21, 2006, May 21, 2008, December 29, 2008, February 26, 2009 and March
31, 2010 (the “Transfer Agreement”),
between the Company and the Issuer. The Receivables transferred to
the Issuer by the Company were acquired by the Company from the Bank pursuant to
a Receivables Sale Agreement, dated as of June 27, 2003, and as amended as of
February 9, 2004, February 7, 2005, December 21, 2006, May 21, 2008, December
29, 2008 and February 26, 2009 (the “Receivables Sale
Agreement”), between the Company and the Bank. General
Electric Capital Corporation (“GECC”), as servicer
(the “Servicer”) has agreed
to conduct the servicing, collection and administration of the Receivables owned
by the Issuer pursuant to a Servicing Agreement, dated as of June 27, 2003, and
as amended as of May 22, 2006, June 28, 2007, and May 22, 2008 (the “Servicing Agreement”)
between the Issuer and the Servicer (as successor to the Bank).
Pursuant
to (i) an Amended and Restated Contribution Agreement, dated as of November 1,
2004 and the Supplemental Contribution Agreement, dated as of March 29,
2005, each among Holding, GECC and General Electric Capital Services, Inc.
(“GECS”), as
assigned by GECS to GECC pursuant to the Assignment and Assumption Agreement,
dated as of January 1, 2010 (the “Assignment
Agreement”) between GECS, as assignor, and GECC, as assignee, and (ii) a
Supplemental Contribution Agreement, dated as of June 15, 2004 and the First
Amendment to Supplemental Contribution Agreement, dated as of May 12, 2009, each
between Holding and GECS, as assigned by GECS to GECC pursuant to the Assignment
Agreement (collectively, the “Contribution
Agreement”), GECC, as assignee of GECS, has agreed to make capital
contributions to Holding in the event that Holding is obligated to make certain
payments, including payments to the Underwriters pursuant to this Agreement, and
Holding does not otherwise have funds available to make such
payments.
GECC has
agreed to provide notices and perform on behalf of the Issuer certain other
administrative obligations required by the Transfer Agreement, 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
September 25, 2003 and as amended as of May 4, 2009 (the “Administration
Agreement”), between GECC, as administrator, the Issuer and BNY Mellon
Trust of Delaware, as Owner Trustee. The Trust Agreement, the
Indenture, the Transfer Agreement, the Receivables Sale Agreement, the Servicing
Agreement, the Contribution Agreement, the Assignment Agreement and the
Administration Agreement are referred to herein, collectively, as the “Transaction
Documents.”
To the
extent not defined herein, capitalized terms used herein have the meanings
assigned in the Transaction Documents.
2
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, as amended (the
“Act”), a
registration statement on Form S-3 (having the registration number 333-169151),
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. 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 registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission, and “Effective Date” means
the date of the Effective Time. Such registration statement, as
amended at the Effective Time, including all material incorporated by reference
therein and including all information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430B under
the Act, is referred to in this Agreement as the “Registration
Statement.” The Registration Statement has been declared
effective by the Commission not more than three years prior to the date
hereof.
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, together with the information
referred to under the caption “Static Pool Information” in the Prospectus
Supplement regardless of whether it is deemed a part of the Prospectus
Supplement, are hereinafter referred to as the “Prospectus”.
3
On
January 20, 2011 (the date the first Contract of Sale (as defined below) was
entered into as designated by the Underwriters (the “Date of Sale”)), the
Company and the Underwriters entered into this Underwriting Agreement (this
“Agreement”). The
Company had previously prepared a Preliminary Prospectus dated January 19, 2011
with respect to such Offered Notes (together with the Permitted Additional
Information (as defined herein), the “Date of Sale
Information”). As used herein, “Preliminary
Prospectus” means, with respect to any date 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 Underwriters in accordance
with the provisions hereof that describe the Offered Notes and is filed or will
be filed with the Commission pursuant to Rule 424(b), together with the
information referred to under the caption “Static Pool Information”
therein regardless of whether it is deemed a part of the Registration Statement
or the Prospectus. If, subsequent to the Date of Sale (as defined
above) and prior to the Closing Date (as defined below), the Preliminary
Prospectus included an untrue statement of material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading and the Company has
prepared and delivered to the Underwriters a Corrected Prospectus (as defined
below), and as a result investors in the Offered Notes elect to terminate their
existing “Contracts of Sale” (within the meaning of Rule 159 under the Act) for
any Offered Notes, then “Date of Sale Information” will refer to the Ratings FWP
(as defined below) and the information conveyed to investors on the date of
entry into the first new Contract of Sale in an amended Preliminary Prospectus
approved by the Company and the Underwriters that corrects such material
misstatements or omissions (a “Corrected
Prospectus”) and “Date of Sale” will refer to the date on which such new
Contracts of Sale were entered into.
The
Company and Holding hereby agree, severally and not jointly, with the
Underwriters for the Class A Notes as follows:
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, the Prospectus and the Ratings FWP (as
defined below), except with respect to any modification as to which the
Underwriters have been notified, shall be in all substantive respects in the
form furnished to the Underwriters or their 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 Preliminary
Prospectus that has previously been furnished to the Underwriters) as the
Company or Holding has advised the Underwriters, before such date, will be
included or made therein.
(iii)
(A) 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; (B) on the date of this Agreement, the
Registration Statement and the Prospectus, conform, 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 and of the Trust Indenture Act of 1939, as amended;
(C) 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 (D) the Prospectus as of its date, and as of the time of filing pursuant to
Rule 424(b), and as of the Closing Date, will not include any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they are made,
not misleading; provided,
however, that 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)
anything 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); provided, further, that this clause
(a)(iii) makes no representation and warranty as to the Date of Sale Information
(the Date of Sale Information being covered by clause (b) below).
4
(b) The
Date of Sale Information at the Date 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.
(c) Other
than with respect to the Preliminary Prospectus, the Prospectus, the Permitted Additional Information (as
defined below) and any
Underwriter Additional Information (as defined in Section
8(b)), 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.
(d) 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 Indenture.
(e) Neither
the issuance nor sale of the Offered Notes nor the consummation of any other of
the transactions herein contemplated, nor the fulfillment of the terms hereof,
will conflict with any statute, order or regulation applicable to the Company
with respect to the offering of the 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.
5
(f) This
Agreement has been duly authorized, executed and delivered by the
Company.
(g) 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.
(h) The
Company has provided a written representation (the “17g-5
Representation”) to each nationally recognized statistical rating
organization hired by the Company to rate the Offered Notes (collectively, the
“Hired
NRSROs”), which satisfies the requirements of paragraph (a)(3)(iii) of
Rule 17g-5 (“Rule
17g-5”) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). The Company has complied in all material respects with
the 17g-5 Representation, other than any breach of the 17g-5 Representation
arising from a breach by any of the Underwriters of the representation, warranty
and covenant set forth in Section 4(d).
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 Underwriters, and the Underwriters agree to purchase from the
Company, at a purchase price of 99.75% of the principal amount thereof,
$600,000,000 aggregate principal amount of the Class A Notes, in the respective
prices and amounts shown on Schedule A
hereto.
(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 Exchange Act.
3. Delivery and
Payment. Delivery of and payment for the Offered Notes shall
be made at the offices of ▇▇▇▇▇ ▇▇▇▇▇ LLP, Chicago, Illinois, at 10:00 A.M., New
York City time, on the “Closing Date” specified in the Indenture Supplement,
which date and time may be postponed by agreement between the Underwriters 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 no later than five full business days 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 Underwriters may request not less
than two full business days in advance of the Closing Date.
6
The
Company agrees to notify the Underwriters at least two business days before the
Closing Date of the exact principal balance evidenced by the Offered Notes and
to have such Offered Notes available for inspection in New York, New York, no
later than 12:00 noon, New York City time on the business day prior to the
Closing Date.
4. Offering by the
Underwriters. a) It is understood
that each Underwriter proposes to offer the Offered Notes for sale to the public
as set forth in the Prospectus.
(b) Each
Underwriter (severally and not jointly) represents and warrants that it has
complied in all material respects, and agrees that it will comply in all
material respects, with all applicable securities laws and regulations in each
jurisdiction in which it purchases, offers, sells or delivers the Offered Notes
or distributes the Prospectus. Without limiting the foregoing, each
Underwriter agrees that all offers, solicitations and sales of the Offered Notes
made by it shall be made in compliance with all applicable laws and
regulations. Furthermore, such Underwriter shall comply with all
applicable laws and regulations in connection with the use of Free Writing
Prospectuses, including but not limited to Rules 164 and 433 under the
Act.
(c) Each
Underwriter shall offer and/or solicit offers for the Offered Notes for sale to
the public as set forth in the Preliminary Prospectus and the
Prospectus.
(d) Each
Underwriter, severally but not jointly, represents and agrees that, (a) it has
not delivered, and will not deliver without the prior written consent of the
Company, any Rating Information to a Hired NRSRO or other nationally recognized
statistical rating organization and (b) it has not participated, and will not
participate without the prior written consent of the Company, in any oral
communication regarding Rating Information with any Hired NRSRO or other
nationally recognized statistical rating organization. For purposes
of this paragraph, “Rating Information”
means any information, written or oral, provided to a Hired NRSRO that could
reasonably be determined to be relevant to (a) determining the initial credit
rating for the Offered Notes, including information about the characteristics of
the Receivables and the legal structure of the Offered Notes, and (b)
undertaking credit rating surveillance on the Offered Notes, including
information about the characteristics and performance of the
Receivables.
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 Note Offering, also will advise the Underwriters 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 promptly will notify
the Underwriters 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.
7
(c) The
Company will furnish to the Underwriters a copy of the related Registration
Statement (including exhibits thereto) and, so long as delivery of a prospectus
by the Underwriters or dealers may be required by the Act, as many copies of the
Prospectus as the Underwriters may reasonably request.
(d) The
Company will furnish such information, execute such instruments and take such
actions as may be reasonably requested by the Underwriters to qualify the
Offered Notes for sale under the laws of such jurisdictions as the Underwriters
may designate and to maintain such qualifications in effect so long as required
for the initial distribution of the Offered Notes; provided, however, that the
Company shall not be required to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would subject it to
general or unlimited service of process in any jurisdiction in which it is not
now so subject.
(e) If
the transactions contemplated by this Agreement are consummated, the Company
will pay or cause to be paid all expenses incident to the performance of the
obligations of the Company under this Agreement, and will reimburse the
Underwriters for any reasonable expenses (excluding fees of the Underwriters’
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 Underwriters have reasonably
requested pursuant to Section 5(d),
for any fees charged by investment rating agencies for the rating of the Offered
Notes, and for expenses incurred in distributing the Prospectus to the
Underwriters. If the transactions contemplated by this Agreement are
not consummated because any condition to the obligations of the Underwriters set
forth in Section
6 is not satisfied or because of any refusal, inability or failure on the
part of the Company to perform any agreement herein or to comply with any
provision hereof other than by reason of default by the Underwriters, the
Company will reimburse the Underwriters upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by the Underwriters in connection with the proposed purchase,
sale and offering of the Offered Notes. Except as herein provided,
the Underwriters shall be responsible for paying all costs and expenses incurred
by them, including the fees and disbursements of their counsel, in connection
with the purchase and sale of the Offered Notes.
(f) The
Company will file with the Commission any Underwriter Free Writing Prospectus
delivered to it by the Underwriters for filing if such filing is required by
Rule 433(d) under the Act.
(g) The
Company will comply with the 17g-5 Representation, other than any breach of the
17g-5 Representation arising from a breach by any of the Underwriters of the
representation, warranty and covenant set forth in Section 4(d).
8
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 Note
Offering:
(a) No
stop order suspending the effectiveness of the related 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) The
Company shall have furnished to the Underwriters a certificate of the Company,
signed by the President, any Vice President, or the principal financial or
accounting officer of the Company, dated the Closing Date, to the effect that
the signer of such certificate has carefully examined the Transaction 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 Transaction 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.
(c) The
Underwriters shall have received on the Closing Date a signed opinion of ▇▇▇▇▇
▇▇▇▇▇ LLP, special New York counsel for the Company, in form and substance
reasonably satisfactory to the Underwriters and counsel to the Underwriters,
dated the Closing Date and addressed to the Underwriters, to the effect
that:
(i) the
Company is a limited liability company validly existing and in good standing
under the laws of the State of Delaware; Holding is a corporation validly
existing and in good standing under the laws of the State of Delaware; and each
of the Company and Holding has full power and authority to enter into and
perform its obligations under this Agreement and the Transaction Documents and
to consummate the transactions contemplated hereby and thereby;
(ii) the
execution and delivery by each of the Bank, GECC, GECS, Holding, the Issuer and
the Company (each, a “Specified Entity”) of
this Agreement (if applicable) and the Transaction Documents to which it is a
party, and the consummation by each of the transactions contemplated thereby,
will not violate any applicable law, statute or governmental rule or
regulation;
(iii) the
execution and delivery by each Specified Entity of this Agreement (if
applicable) and the Transaction Documents to which it is a party does not, and
the consummation by each Specified Entity of the transactions contemplated
thereby to occur on the date of this opinion will not, require any consent,
authorization or approval of, the giving of notice to or registration with any
governmental entity, except such as may have been made and such as may be
required under the Federal securities laws, the blue sky laws of any
jurisdiction or the Uniform Commercial Code of any state;
9
(iv) the
execution and delivery by each of the Company and Holding of this Agreement and
the Transaction Documents to which it is a party do not, and the consummation by
the Company of the transactions contemplated thereby to occur on the date of
this opinion will not, violate or contravene any term or provision of the
Certificate of Formation or the Limited Liability Company Agreement of the
Company or the Certificate of Incorporation or By-Laws of Holding;
(v) each
of the Transaction Documents (other than the Trust Agreement) constitutes a
legal, valid and binding obligation of each of GECC, GECS, the Issuer, the
Company and Holding that is a party thereto, enforceable against each such party
in accordance with its terms;
(vi) each
of the Notes is in due and proper form and when executed, authenticated and
delivered as specified in the Indenture, and when delivered against payment of
the consideration specified herein or in the Note Purchase Agreement, as
applicable, it will be validly issued and outstanding, will constitute the
legal, valid and binding obligation of the Issuer, enforceable against the
Issuer in accordance with its terms, and will be entitled to the benefits of the
Indenture;
(vii) the
Issuer is not now, and immediately following the issuance of the Notes pursuant
to the Indenture will not be, required to be registered under the Investment
Company Act of 1940, as amended;
(viii) the
Registration Statement has become effective under the Act, and the Prospectus
has been filed with the Commission pursuant to Rule 424(b) thereunder in the
manner and within the time period required by Rule 424(b); to the best of such
counsel’s knowledge, no stop order suspending the effectiveness of the
Registration Statement and the Prospectus and no proceedings for that purpose
have been instituted;
(ix) the
statements in the Base Prospectus under the headings “The Trust—Perfection and Priority of
Security Interests” and “—Conservatorship and Receivership;
Bankruptcy,” and “ERISA
Considerations” and the statements in the Prospectus Supplement under the
heading “Structural
Summary—ERISA Considerations” to the extent they constitute matters of
law or legal conclusions with respect thereto, have been reviewed by such
counsel and are correct in all material respects;
(x) the
Transaction Documents and the Notes conform in all material respects to the
descriptions thereof contained in the Prospectus;
(xi) the
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended and complies as to form with the Trust Indenture Act of 1939 and the
rules and regulations of the Commission thereunder; and
10
(xii) each
of the Registration Statement, as of its Effective Date, and the Prospectus, as
of its date, complied as to form in all material respects with the requirements
of the Act and the rules and regulations under the Act, except that such counsel
need not express any opinion as to the financial and statistical data included
therein or excluded therefrom or the exhibits to the Registration Statement and,
except as, and to the extent set forth in paragraphs (ix) and
(x), such
counsel need not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus.
(d) The
Underwriters shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇
▇▇, Special Transaction Counsel for the Bank, in form and substance reasonably
satisfactory to the Underwriters and counsel to the Underwriters, dated the
Closing Date and addressed to the Underwriters, to the effect that:
(i) the
Bank is (A) duly organized and validly existing as a Federal savings bank in
good standing under the laws of the United States and (B) duly qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
where the conduct of its business or the ownership, lease or operation of its
property requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on its ability to perform its
obligations under the Receivables Sale Agreement;
(ii) the
Bank has all requisite corporate power and authority to execute, deliver and
perform its obligations under the Receivables Sale Agreement and to consummate
the transactions provided for therein;
(iii) the
execution, delivery and performance by the Bank of the Receivables Sale
Agreement and the consummation of the transactions provided for therein have
been duly authorized by all requisite corporate action on the part of the
Bank;
(iv) the
Receivables Sale Agreement has been duly executed and delivered by a duly
authorized officer of the Bank;
(v) the
execution, delivery and performance by the Bank of the Receivables Sale
Agreement and the consummation by the Bank of the transactions provided for
therein, do not and will not (A) contravene, violate or constitute a default
under any provision of the certificate of incorporation or By-laws of the Bank,
(B) to the best of such counsel’s knowledge, contravene or violate any judgment,
injunction, order or decree, to which the Bank or its property is subject, (C)
to the best of such counsel’s knowledge, result in the creation or imposition of
any mortgage, lien, pledge, charge, security interest or other encumbrance upon
any property or assets of the Bank, except as contemplated by the Servicing
Agreement and the Receivables Sale Agreement or (D) contravene violate, conflict
with or constitute a default under any agreement, lease, indenture, trust, deed,
mortgage, or other instrument of which such counsel is aware to which the Bank
is a party or by which the Bank is bound.
11
(e) The
Underwriters shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇
▇▇, Vice President and Counsel, Capital Markets for GE Capital, Retail Finance,
in form and substance reasonably satisfactory to the Underwriters and counsel to
the Underwriters, dated the Closing Date and addressed to the Underwriters to
the effect that:
(i) each
of GECC and GECS is validly existing and in good standing as a corporation under
the laws of the State of Delaware and has the corporate power and authority to
transact the business in which it is now engaged and to enter into and to
perform all of its obligations under the Servicing Agreement, the Administration
Agreement, the Assignment Agreement and the Contribution Agreement to which it
is a party in the various capacities set forth therein;
(ii) the
execution, delivery and performance by each of GECC and GECS of the Servicing
Agreement, the Administration Agreement and the Contribution Agreement to which
it is a party and the consummation by GECC and GECS of the transactions
contemplated thereby have been duly authorized by all necessary corporate action
on the part of GECC and GECS;
(iii) the
Servicing Agreement, the Administration Agreement, the Assignment Agreement and
the Contribution Agreement to which it is a party have been duly and validly
executed and delivered by GECC and GECS; and
(iv) the
execution and delivery by each of GECC and GECS of the Servicing Agreement, the
Administration Agreement, the Assignment Agreement and the Contribution
Agreement to which it is a party and the consummation of the transactions
contemplated thereby will not conflict with, result in a breach of any of the
terms and provisions of, constitute (with or without notice or lapse of time) a
default under (A) the certificate of incorporation or By-laws of GECC or, with
respect to the Assignment Agreement, GECS, (B) to such counsel’s knowledge, and
without any special investigation for this purpose, any material indenture,
contract, lease, mortgage, deed of trust or other instrument of agreement to
which GECC or, with respect to the Assignment Agreement, GECS is a party or by
which GECC or, with respect to the Assignment Agreement, GECS is bound, or (C)
to such counsel’s knowledge and without any special investigation for this
purpose, any judgment, writ, injunction, decree, order or ruling of any court or
governmental authority having jurisdiction over GECC or, with respect to the
Assignment Agreement, GECS.
(f) The
Underwriters shall have received on the Closing Date a signed opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel for the Owner Trustee, in form and
substance reasonably satisfactory to the Underwriters and counsel to the
Underwriters, dated the Closing Date and addressed to the Underwriters, to the
effect that:
12
(i) the
Owner Trustee is duly incorporated and is validly existing and in good standing
as a banking corporation under the laws of the State of Delaware;
(ii) the
Owner Trustee has the power and authority to execute, deliver and perform its
obligations under the Trust Agreement and as trustee under the Administration
Agreement, and to consummate the transactions contemplated thereby;
(iii) the
Owner Trustee has duly authorized, executed and delivered the Trust Agreement
and the Administration Agreement, as trustee, and the Trust Agreement
constitutes a legal, valid and binding obligation of the Owner Trustee,
enforceable against the Owner Trustee in accordance with its terms;
and
(iv) neither
the execution, delivery and performance by the Owner Trustee of the Trust
Agreement, the Administration Agreement, as trustee, nor the consummation of any
of the transactions by the Owner Trustee contemplated thereby, (A) is in
violation of the charter or bylaws of the Owner Trustee or of any law,
governmental rule or regulation of the State of Delaware or of the federal laws
of the United States governing the trust powers of the Owner Trustee and (B)
requires the consent or approval of, the withholding of objection on the part
of, the giving of notice to, the filing, registration or qualification with, or
the taking of any other action in respect of, any governmental authority or
agency under the laws of the State of Delaware or the federal laws of the United
States governing the trust powers of the Owner Trustee.
(g) The
Underwriters shall have received on the Closing Date a signed opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Delaware counsel for the Issuer, in form
and substance reasonably satisfactory to the Underwriters and counsel to the
Underwriters, dated the Closing Date and addressed to the Underwriters, to the
effect that:
(i) the
Issuer has been duly formed and is validly existing as a statutory trust under
the Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq., and has the
power and authority under the Trust Agreement and the Delaware Statutory Trust
Act to execute, deliver and perform its obligations under the Indenture, the
Administration Agreement, the Servicing Agreement, the Custody and Control
Agreement, dated as of September 25, 2003, among the Indenture Trustee, the
Issuer, and the Custodian (the “Custody and Control
Agreement”) and the Transfer Agreement;
(ii) the
Indenture, the Administration Agreement, the Servicing Agreement, the Custody
and Control Agreement, the Transfer Agreement, the Notes to be issued by the
Issuer on the Closing Date, and the Certificates have been duly authorized and
executed by the Issuer;
13
(iii) the
Trust Agreement is a legal, valid and binding obligation of the Company and the
Owner Trustee, enforceable against the Company and the Owner Trustee, in
accordance with its terms;
(iv) neither
the execution, delivery or performance by the Issuer of the Indenture, the
Administration Agreement, the Servicing Agreement, the Custody and Control
Agreement or the Transfer Agreement, nor the consummation by the Issuer of any
of the transactions contemplated thereby, (A) requires the consent or approval
of, the withholding of objection on the part of, the giving of notice to, the
filing, registration or qualification with, or the taking of any other action in
respect of, any governmental authority or agency of the State of Delaware, other
than the filing of the certificate of trust with the Secretary of State, or (B)
is in violation of the Trust Agreement or of any law, rule or regulation of the
State of Delaware applicable to the Issuer;
(v) under
§ 3805 (b) and (c) of the Delaware Statutory Trust Act, (A) no creditor of any
Certificateholder shall have any right to obtain possession of, or otherwise
exercise legal or equitable remedies with respect to, the property of the Issuer
except in accordance with the terms of the Trust Agreement, and (B) except to
the extent otherwise provided in the Trust Agreement, a Certificateholder
(including the Company in its capacity as such) has no interest in specific
Issuer property;
(vi) under
the Delaware Statutory Trust Act, the Issuer is a separate legal entity and,
assuming that the Transfer Agreement conveys good title to the Issuer Estate (as
defined in the Trust Agreement) to the Issuer as a true sale and not as a
security arrangement, the Issuer rather than the Certificateholders will hold
whatever title to the Issuer property as may be conveyed to it from time to time
pursuant to the Transfer Agreement, except to the extent that the Issuer has
taken action to dispose of or otherwise transfer or encumber any part of the
Issuer property; and
(vii) under
§ 3808(a) and (b) of the Delaware Statutory Trust Act, the Issuer may not be
terminated or revoked by any Certificateholder, and the dissolution, termination
or bankruptcy of any Certificateholder shall not result in the termination or
dissolution of the Issuer, except to the extent otherwise provided in the Trust
Agreement.
(h) The
Underwriters shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇ LLP, special New York counsel for the Indenture Trustee, in form
and substance reasonably satisfactory to the Underwriters and counsel to the
Underwriters, dated the Closing Date and addressed to the Underwriters, to the
effect that:
(i) the
Indenture Trustee is a banking corporation and trust company validly existing
under the laws of the State of New York;
14
(ii) the
Indenture Trustee has the requisite power and authority to execute and deliver
the Indenture, the Omnibus Amendment, and the Custody and Control Agreement and
to perform its obligations under the Indenture and the Custody and Control
Agreement, and has taken all necessary action to authorize the execution,
delivery and performance of the Indenture and the Other Agreements;
(iii) the
Indenture Trustee is duly authorized and empowered to exercise trust powers
under applicable law;
(iv) the
Indenture, the Omnibus Amendment, and the Custody and Control Agreement have
been duly executed and delivered by the Indenture Trustee and constitute the
legal, valid, and binding obligation of the Indenture Trustee, enforceable
against the Indenture Trustee in accordance with their respective terms, except
that certain of such obligations may be enforceable against the
Collateral;
(v) the
Notes, delivered on the date hereof have been duly authenticated and delivered
by the Indenture Trustee in accordance with the terms of the
Indenture;
(vi) neither
the execution, delivery or performance by the Indenture Trustee of the Indenture
and the Custody and Control Agreement require approval, authorization or other
action by or filing with any governmental authority of the United States, or of
the State of New York, having jurisdiction over the banking or trust powers of
the Indenture Trustee; and
(vii) the
execution, delivery and performance by the Indenture Trustee of the Indenture
and the Custody and Control Agreement, and the authentication of the Notes by
the Indenture Trustee do not conflict with or result in a violation of (1) any
law or regulation of the United States or the State of New York law governing
the banking or trust powers of the Indenture Trustee, or (2) the organization
certificate as amended or By-laws as amended of the Indenture
Trustee.
(i) The
Underwriters shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, in form and substance reasonably
satisfactory to the Underwriters with respect to the validity of the Offered
Notes and such other related matters as the Underwriters may reasonably request,
and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters.
(j) The
Underwriters shall have received on the Closing Date (i) signed opinions of
▇▇▇▇▇ ▇▇▇▇▇ LLP, special New York counsel for the Company, dated as of the
Closing Date, in form and substance satisfactory to the Underwriters, relating
to (A) certain insolvency and bankruptcy matters and (B) federal income tax
matters and (ii) a signed negative assurance letter, dated as of the Closing
Date, in form and substance reasonably satisfactory to the Underwriters,
relating to the Registration Statement, the Preliminary Prospectus, the
Prospectus and the Ratings FWP (as defined below).
15
(k) The
Underwriters shall have received a letter, dated as of the Closing Date or such
other date as may be agreed upon between the Underwriters and the Company, from
certified public accountants (who shall be satisfactory to the Underwriters),
substantially in the form previously approved by the Underwriters.
(l) The
Offered Notes shall have received the ratings specified in the Ratings FWP (as
defined below).
(m) Prior
to the Closing Date, the Company shall have furnished to the Underwriters such
further information, certificates and documents as the Underwriters may
reasonably request.
(n) Subsequent
to the date of the Prospectus, there shall not have been any material adverse
change in the business or properties of the Company which in the reasonable
judgment of the Underwriters, 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 Holding, jointly and severally, agree to indemnify and hold harmless
each Underwriter and each person who controls any Underwriter within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act (a “Controlling Person”)
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange Act, or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) are caused by any untrue statement or alleged untrue statement of a
material fact contained in (i) the Registration Statement, (ii) the Preliminary
Prospectus (it being understood that such indemnification with respect to the
Preliminary Prospectus does not include the omission of pricing and
price-dependent information, which information shall of necessity appear only in
the final Prospectus), (iii) the Prospectus or (iv) any Permitted Additional
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, however, that
(i) neither the Company nor Holding 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 the
Underwriters’ Information (as defined below) and (ii) such indemnity with
respect to any Corrected Statement (as defined below) in such Prospectus shall
not inure to the benefit of any Underwriter (or any Controlling Person) from
whom the person asserting any loss, claim, damage or liability purchased the
Offered Notes that are the subject thereof if the untrue statement or omission
of a material fact contained in such Prospectus was corrected (a “Corrected Statement”)
in a Corrected Prospectus and such Corrected Prospectus was furnished by the
Company to such Underwriter prior to the delivery of the confirmation of the
sale of such Offered Notes, but such Underwriter did not furnish such Corrected
Prospectus to such investor prior to the delivery of such
confirmation. This indemnity agreement will be in addition to any
liability which the Company or Holding may otherwise have.
16
(b) Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Company, and Holding, 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 Holding within the meaning of the Act or the
Exchange Act (i) to the same extent as the foregoing indemnities from the
Company and Holding to such Underwriter, but only with reference to the
Underwriters’ Information; (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, prior to the date such investor entered into such Contract of
Sale, the Preliminary Prospectus and (iii) 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 any
Underwriter Additional 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 the Company, the Issuer
and Holding, and each person who controls the Company, the Issuer or Holding
within the meaning of the Act or the Exchange Act for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided that in
the case of this subclause (iii), no Underwriter will be liable in any case to
the extent that any such loss, claim, damage, or liability arises out of or is
based on any such untrue statement of a material fact or alleged untrue
statement of a material fact or any such omission or alleged omission in any
Underwriter Additional Information in reliance upon and in conformity with (x)
any written information furnished to the related Underwriter by the Company or
Holding specifically for use therein or (y) the Preliminary Prospectus or
Prospectus, which information was not corrected by information subsequently
provided by the Company or Holding to the related Underwriter within a
reasonable period of time prior to the time of use of such Underwriter
Additional Information that gave rise to the related loss, claim, damage or
liability. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. Each of the
Company and Holding acknowledges that the statements set forth on the cover page
of the Prospectus Supplement on the line across from “Price to public,” in the
table listing the Class A and Class B Underwriters and the Principal Amount of
Class A Notes and Class B Notes under the heading “Underwriting” in the
Prospectus Supplement, in the table following the fourth paragraph under the
heading “Underwriting” in the Prospectus Supplement and in the penultimate
paragraph under the heading “Underwriting” in the Prospectus Supplement (such
information, the “Underwriters’
Information”) constitute the only information furnished in writing by or
on behalf of the Underwriters for inclusion in the Prospectus.
17
(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 to provide notice. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not be
liable to such indemnified party under this Section 7 for
any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence (it being understood,
however, that
the indemnifying party shall not be liable for the expenses of more than one
separate counsel approved by the indemnified party in the case of
subparagraph (a) or (b) of this Section 7,
representing the indemnified parties under subparagraph (a) or (b), who are
parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party; and
except that, if clause (i) or (iii) is applicable, such liability shall be
only in respect of the counsel referred to in such clause (i) or
(iii). Unless it shall assume the defense of any proceeding, the
indemnifying party shall not be liable for any settlement of any proceeding,
effected without its written consent, but if settled with such consent or 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.
18
(d) 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, Holding or the Underwriters, on grounds of policy
or otherwise, then each indemnifying party shall contribute to the aggregate
losses, claims, damages and liabilities to which the Company, Holding and the
Underwriters may be subject in such proportion as is appropriate to reflect not
only the relative benefits received by the Company and Holding on the one hand
and the Underwriters on the other from the offering of the Offered Notes but
also the relative fault of the Company and Holding on the one hand and of the
Underwriters, on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by
the Company and Holding on the one hand and the Underwriters 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 Holding bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Offered Notes. The
relative fault of the Company and Holding 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, the Prospectus or the
Permitted Additional Information or the omission or alleged omission to state a
material fact therein 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 Holding or by the Underwriters, and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Notwithstanding the
provisions of this Section 7, no
Underwriter shall be required to contribute any amount pursuant to this
Agreement in excess of the amount by which the total price at which the Offered
Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
(e) The
Company, Holding 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.
19
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 that
Underwriter, and each person who controls the Company or Holding within the
meaning of either the Act or the Exchange Act, each officer of the Company or
Holding who shall have signed the Registration Statement and each director of
the Company or Holding shall have the same rights to contribution as the Company
or Holding, as applicable, subject in each case to the immediately preceding
sentence of this paragraph.
8. Offering
Communications
(a) For
purposes hereof, “Free
Writing Prospectus” shall have the meaning given such term in Rule 405
under the Act. “Permitted Additional
Information” shall mean the free writing prospectus dated January 19,
2011 with respect to the ratings on the Offered Notes (the “Ratings FWP”) and any
information that is included in any road show presentation the Issuer, the
Company or Holding has approved.
(b) Other
than the Preliminary Prospectus, Prospectus and the Permitted Additional
Information, each Underwriter represents, warrants and agrees with
Holding 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
hereof, maintain written and/or electronic records regarding each Contract of
Sale entered into by such Underwriter, the date, identity of the investor and
the terms of such Contract of Sale, as set forth in the related confirmation of
trade. Notwithstanding the foregoing, the Company agrees that (A) the
Underwriters may disseminate information on Bloomberg to prospective investors
relating solely to i) information
of the type identified in Rule 134 under the Act, ii) information
included in the Preliminary Prospectus, iii) the status of
allocations and subscriptions of the Offered Notes, expected pricing parameters
of the Offered Notes and the yields and weighted average lives of the Offered
Notes, and iv) information
constituting final terms of the Offered Notes within the meaning of Rule
433(d)(5)(ii) under the Act (each such communication, an “Underwriter Free Writing
Prospectus”); provided that in the case of
the foregoing clauses (i) through (iv), other than the final pricing terms, such
Underwriter Free Writing Prospectus would not be required to be filed with the
Commission, and (B) each Underwriter is permitted to provide information
customarily included in confirmations of sales of securities and notices of
allocations and information delivered in compliance with Rule 134 under the Act
(the information described in clauses (A) and (B), collectively, the “Underwriter Additional
Information”).
20
(c) Each
Underwriter severally represents, warrants and agrees with the Company, the
Issuer and Holding that:
(i) each
Underwriter Additional Information prepared by it will not, as of the date such
Underwriter Additional Information was conveyed or delivered to any prospective
purchaser of the Offered Notes, include any untrue statement of a material fact
or omit any material fact necessary to make the statements contained therein, in
light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter
makes such representation, warranty or agreement to the extent such
misstatements or omissions were the result of any inaccurate information which
was included in the Preliminary Prospectus, the Prospectus or any written
information furnished to the related Underwriter by the Company or the Issuer
expressly for use therein, which information was not corrected by information
subsequently provided by the Company or the Issuer to the related Underwriter
prior to the time of use of such Underwriter Additional
Information;
(ii) each
Underwriter Free Writing Prospectus prepared by it shall contain a legend
substantially in the form of and in compliance with Rule 433(c)(2)(i) under the
Act, and shall otherwise conform to any requirements for “free writing
prospectuses” under the Act; and
(iii)
each Underwriter Free Writing Prospectus prepared by it shall be delivered to
the Company no later than the date of first use and, unless otherwise agreed to
by the Company and the related Underwriter, such delivery shall occur no later
than the close of business for the Bank (Eastern Time) on the date of first use;
provided, however, that if the date of
first use is not a Business Day, such delivery shall occur no later than the
close of business for the Bank (Eastern Time) on the first Business Day
preceding such date of first use.
(d) In
the event that any Underwriter uses the Internet or other electronic means to
offer or sell the Offered Notes, it severally represents that it has in place,
and covenants that it shall maintain, internal controls and procedures which it
reasonably believes to be sufficient to ensure compliance in all material
respects with all applicable legal requirements under the Act.
9. Agreement of each
Underwriter. c) 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 such Underwriter; (ii) if a paper copy of
the Prospectus is requested by a person who receives a confirmation, such
Underwriter shall deliver a printed or paper copy of such Prospectus; and (iii)
if an electronic copy of the Prospectus is delivered by an 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(a);
for example, if the Prospectus is delivered to an Underwriter by or on behalf of
the Company in a single electronic file in .pdf format, then such Underwriter
will deliver the electronic copy of the Prospectus in the same single electronic
file in .pdf format. Each Underwriter further agrees that if it
delivers to an investor the Prospectus in .pdf 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.
21
(b) Prior
to the Closing Date, each Underwriter shall notify Holding and the Company of
(i) the date on which the Preliminary Prospectus is first used and (ii) the date
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 Date of Sale, it did not enter into any
Contract of Sale for any Offered Notes prior to the Date of Sale and, without
limiting the foregoing, it did not enter into a Contract of Sale with an
investor in the Offered Notes prior to the delivery of the Preliminary
Prospectus to such investor and (ii) that it will, at any time that such
Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the
Act) with respect to the Offered Notes, deliver to each investor to whom Offered
Notes are sold by it during the period prior to the filing of the final
Prospectus (as notified to such Underwriter by the Company or by Holding), prior
to the applicable date of any such Contract of Sale with respect to such
investor, the Preliminary Prospectus.
(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 that with effect from and including the date
on which the Prospectus Directive is implemented in that Relevant Member State
it has not made and will not make an offer of Offered Notes to the public in
that Relevant Member State other than:
(i) to
legal entities which are authorized or regulated to operate in the financial
markets or, if not so authorized or regulated, whose corporate purpose is solely
to invest in securities;
(ii) to
any legal entity which has two or more of the following: (1) an average of at
least 250 employees during the last financial year; (2) a total balance sheet of
more than €43,000,000; and (3) an annual net turnover of more than €50,000,000,
as shown in its last annual or consolidated accounts;
(iii) to
fewer than 100 natural or legal persons (other than qualified investors as
defined in the Prospectus Directive) subject to obtaining the prior consent of
the Underwriters; or
(iv) in
any other circumstances falling within Article 3(2) of the Prospectus
Directive;
22
provided, that no such offer
of Offered Notes shall require the Issuer or any Underwriter to publish a
prospectus pursuant to Article 3 of the Prospectus Directive or supplement a
prospectus pursuant to Article 16 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, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland,
France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia,
Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland,
Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden and United
Kingdom.
(e) In
the event the Company or any Underwriter becomes aware that, as of the Date of
Sale, any Date of Sale Information contains or contained any untrue statement of
material fact or omits or omitted to state any material fact necessary in order
to make the statements contained therein in light of the circumstances under
which they were made, not misleading (a “Defective
Prospectus”), the party making such discovery shall promptly notify the
other party of such untrue statement or omission no later than one Business Day
after discovery and the Company shall prepare and deliver to the Underwriters a
Corrected Prospectus. Each Underwriter shall deliver such Corrected Prospectus
in a manner reasonably acceptable to both parties, to any Person with whom a
Contract of Sale was entered into based on such Defective Prospectus, and such
Underwriter shall provide any such Person with adequate disclosure of the
Person’s rights under the existing Contract of Sale and 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 based on the information set
forth in the Corrected Prospectus.
10. Default by an
Underwriter. If any Underwriter shall fail to purchase and pay
for any of the Offered Notes agreed to be purchased by such Underwriter
hereunder and such failure to purchase shall constitute a default in the
performance of its obligations under this Agreement, the remaining Underwriter
shall be obligated to take up and pay for the Offered Notes that the defaulting
Underwriter agreed but failed to purchase; provided, however, that in
the event that the initial principal balance of Offered Notes that the
defaulting Underwriter agreed but failed to purchase shall exceed 10% of the
aggregate principal balance of all of the Offered Notes set forth in Schedule A hereto,
the remaining Underwriter shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Offered Notes, and if such
nondefaulting Underwriter does not purchase all of the Offered Notes, this
Agreement will terminate without liability to the nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 10, the
Closing Date for the Offered Notes shall be postponed for such period, not
exceeding seven days, as the nondefaulting Underwriter shall determine in order
that the required changes in the Registration Statement, the Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and to any nondefaulting Underwriter for damages occasioned by its
default hereunder.
23
11. 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 11, 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 an Underwriter by written notice delivered by the
Underwriters to the Company and Holding 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
5(e) and Section 7) be
released and discharged from their respective obligations under this
Agreement.
12. Representations and
Indemnities to Survive Delivery. The agreements,
representations, warranties, indemnities and other statements of the Company,
Holding 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 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.
13. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and thereto and their respective successors and the officers, directors and
controlling persons referred to in Section 7
hereof, and their successors and assigns, and no other person will have any
right or obligation hereunder or thereunder. No purchaser of any
Offered Note from the Underwriters shall be deemed a successor or assign by
reason of such purchase.
14. APPLICABLE
LAW. (a) THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
24
(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.
(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.
25
15. 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.
16. 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.
17. Notices. All
communications hereunder will be in writing and effective only on receipt, and,
if sent to the Underwriters, will be delivered to each of them at the address
first above written; or if sent to the Company, will be delivered to GE Capital,
Retail Finance, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇, Vice
President and Legal Counsel, Capital Markets.
18. Non-Petition
Covenant. Notwithstanding any prior termination of this
Agreement, the Underwriters shall not acquiesce, petition or otherwise invoke or
cause the Company or Holding to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against the Company
or Holding 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 Holding, as applicable, or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Company or Holding.
19. Financial Services
Act. Each Underwriter represents and agrees:
(a) that
it has only communicated or caused to be communicated and will only communicate
or cause to be communicated an invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the Financial Services and Markets
Act 2000 (the “FSMA”)) received by it in connection with the issue or sale of
any Offered Notes in circumstances in which Section 21(1) of the FSMA does not
apply to the Issuer; and
(b) that
it has complied and will comply with all applicable provisions of the FSMA with
respect to anything done by it in relation to the Notes in, from or otherwise
involving the United Kingdom.
20. Absence of Fiduciary
Relationship. Each of the Company
and Holding acknowledges and
agrees that:
(a) the
Underwriters have been retained solely to act as underwriters in connection with
the sale of the Offered Notes and that no fiduciary, advisory or agency
relationship between the Company or Holding and the Underwriters has been
created in respect of any of the transactions contemplated by this Agreement,
irrespective of whether the Underwriters have advised or are advising the
Company or Holding on other matters and the Company and Holding agree that they
are solely responsible for making their own judgments in connection with the
offering;
26
(b) the price of the Offered Notes
set forth in this Agreement
was established by the
Company following
discussions and arms-length negotiations with the Underwriters and each of the Company and
Holding is capable of evaluating
and understanding and understands and accepts the terms, risks and conditions of
the transactions contemplated by this Agreement;
(c) it
has been advised that the Underwriters and their affiliates are engaged in a
broad range of transactions which may involve interests that differ from those
of the Company and Holding and that the Underwriters have no obligation to
disclose such interests and transactions to the Company or Holding by virtue of
any fiduciary, advisory or agency relationship; and
(d) it
waives, to the fullest extent permitted by law, any claims it may have against
the Underwriters for breach of fiduciary duty or alleged breach of fiduciary
duty and agrees that the Underwriters shall have no liability (whether direct or
indirect) to the Company or Holding in respect of such a fiduciary duty claim or
to any person asserting a fiduciary duty claim on behalf of or in right of the
Company or Holding, including stockholders, employees or creditors of the
Company or Holding.
27
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, Holding
and the Underwriters.
|
Very
truly yours,
|
||
|
RFS
HOLDING, L.L.C.
|
||
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
Title: Vice
President
|
||
|
RFS
HOLDING, INC.
|
||
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
Title: Vice
President
|
||
S-1
The
foregoing Agreement is
▇▇▇▇▇▇
confirmed and accepted
as of the
date first above written.
▇▇▇▇▇▇▇
LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing
Director
S-2
The
foregoing Agreement is
▇▇▇▇▇▇
confirmed and accepted
as of the
date first above written.
RBS
SECURITIES INC.
By: /s/ ▇▇▇▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇▇▇
Title: Director
S-3
Schedule A to Underwriting
Agreement
Allocation of the Offered
Notes
Class A
Notes $600,000,000
aggregate principal amount
|
Underwriter
|
Principal Amount
Purchased
|
|
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
|
$240,000,000
|
|
RBS
Securities
Inc.
|
$240,000,000
|
|
Citigroup
Global Markets,
Inc.
|
$40,000,000
|
|
▇.▇.
▇▇▇▇▇▇ Securities
LLC
|
$40,000,000
|
|
▇▇▇▇▇▇▇▇
Capital Group,
L.P.
|
$40,000,000
|
|
Total
|
$600,000,000
|
Schedule
A