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 and February 26, 2009 (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 ”) 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 (collectively, the “ Contribution Agreement ”), GECS has agreed to make capital contributions to Holding in the event that Holding is obligated to make certain payments, including payments to the Underwriter 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 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.

 

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

 

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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 333-144945), 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 ”.

 

On September 14, 2009 (the date the first Contract of Sale (as defined below) was entered into as designated by the Underwriter (the “ Date of Sale ”)), the Company and the Underwriter entered into this Underwriting Agreement (this “ Agreement ”).  The Company had previously prepared a Preliminary Prospectus dated September 14, 2009 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 Underwriter in accordance with the provisions hereof that describe the Offered Notes and is filed or will be filed

 

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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 Underwriter 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 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 Underwriter 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 Underwriter for the Class A Notes as follows:

 

1.                                        Representations and Warranties .  The Company represents and warrants to and agrees with the Underwriter that:

 

(a)                                   (i) The conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement.  No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceeding for that purpose has been instituted or threatened by the Commission.

 

(ii)                                   As of the Closing Date (as such term is defined below), the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification as to which the Underwriter has been notified, shall be in all substantive respects in the form furnished to the Underwriter or its counsel before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the Preliminary Prospectus that has previously been furnished to the Underwriter) as the Company or Holding has advised the Underwriter, 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

 

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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 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).

 

(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 Underwriter’s 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 Underwriter 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.

 

(f)                                     This Agreement has been duly authorized, executed and delivered by the Company.

 

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(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.

 

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 99.79314% of the principal amount thereof, $750,000,000 aggregate principal amount of the Class A Notes.

 

(b)                                  The parties hereto agree that settlement for all securities pursuant to this Agreement shall take place on the terms set forth herein and not as set forth in Rule 15c6-1(a) under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”).

 

3.                                        Delivery and Payment .  Delivery of and payment for the Offered Notes shall be made at the offices of Mayer Brown 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 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 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 Underwriter may request not less than two full business days in advance of the Closing Date.

 

The Company agrees to notify the Underwriter 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 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.  Without limiting the foregoing, the 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, the 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.

 

5.                                        Agreements .  The Company agrees with each Underwriter that:

 

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(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 Underwriter 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 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 related Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Underwriter or dealers 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, 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 Underwriter for any reasonable expenses (excluding fees of the Underwriter’s 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

 

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Notes.  Except as herein provided, the Underwriter shall be responsible for paying all costs and expenses incurred by it, including the fees and disbursements of its 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 Underwriter for filing if such filing is required by Rule 433(d) under the Act.

 

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 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 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 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 Underwriter shall have received on the Closing Date a signed opinion of Mayer Brown LLP, special New York counsel for the Company, in form and substance reasonably satisfactory to the Underwriter and counsel to the Underwriter, dated the Closing Date and addressed to the Underwriter, 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,

 

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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;

 

(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

 

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Considerations ” to the extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by us 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

 

(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 Underwriter shall have received on the Closing Date a signed opinion of Michael P. Paolillo, Special Transaction Counsel for the Bank, in form and substance reasonably satisfactory to the Underwriter and counsel to the Underwriter, dated the Closing Date and addressed to the Underwriter, 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

 

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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 coun