EXECUTION COPY
GE EQUIPMENT MIDTICKET LLC, SERIES 2007-1
Asset Backed Notes
UNDERWRITING AGREEMENT
November 9, 2007
XXXXXX XXXXXXX & CO. INCORPORATED
Acting on behalf of itself and as the Representative
of the several Underwriters named in Schedule I hereto (in
either such capacity sometimes herein the "Representative")
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Section 1. Introductory. GE Equipment Midticket LLC, Series 2007-1 (the
"Company"), CEF Equipment Holding, L.L.C. ("CEFEH" or the "Depositor") and
General Electric Capital Corporation ("GECC") propose to cause the sale of the
GE Equipment Midticket LLC, Series 2007-1 Asset Backed Notes, consisting of the
Class A-1 Notes (the "Class A-1 Notes"), the Class A-2a Notes (the "Class A-2a
Notes"), the Class A-2b Notes (the "Class A-2b Notes"), the Class A-3a Notes
(the "Class A-3a Notes"), the Class A-3b Notes (the "Class A-3b Notes"), the
Class A-4 Notes (the "Class A-4 Notes") and the Class B Notes (the "Class B
Notes" and together with the Class A-1 Notes, the Class A-2a Notes, the Class
A-2b notes, the Class A-3a Notes, the Class A-3b Notes, the Class A-4 Notes and
the Class B Notes, the "Offered Notes"). The Company will also issue the Class C
Notes (the "Class C Notes" and together with the Offered Notes, the "Notes").
The Notes will be issued pursuant to an Indenture, dated as of November 20, 2007
(the "Indenture"), between the Company and The Bank of New York, as indenture
trustee (the "Indenture Trustee"). The Notes will be issued in an aggregate
initial principal amount of $1,137,359,000. The Offered Notes are being
purchased by the entities specified in Schedule I hereto (each an "Underwriter,"
and together the "Underwriters").
The Notes will be secured by the Collateral, including without limitation,
a pool of equipment loans and finance leases secured by transportation
equipment, industrial equipment, construction equipment, furniture and fixtures,
technology and telecommunications equipment, printing presses, maritime assets
or other equipment and the related security interests in the equipment financed
thereby (collectively, the "Loans") and certain rights under the Interest Rate
Swap Agreement, to be dated November 20, 2007 (the "Interest Rate Swap
Agreement"), between the Company and General Electric Capital Services, Inc.
("GECS"). Pursuant to a Loan Sale Agreement, dated as of November 20, 2007 (the
"Loan Sale Agreement"), among the Depositor, GECC, VFS Financing, Inc. ("VFS")
and GE Capital Information Technology Solutions, Inc. ("GE ITS", and together
with VFS, the "Originators"), GECC and the Originators
will sell the Loans to the Depositor. Pursuant to a Loan Purchase and Sale
Agreement, dated as of November 20, 2007 (the "Loan Purchase and Sale
Agreement"), between the Depositor and the Company, the Depositor will sell,
transfer and convey to the Company, without recourse, all of its right, title
and interest in the Loans. Pursuant to the Servicing Agreement, to be dated as
of November 20, 2007 (the "Servicing Agreement") between GECC, as servicer, and
the Company, GECC will service the Loans.
Capitalized terms used herein but not otherwise defined shall have the
meanings set forth in the Indenture.
The Class A-1 Notes shall bear interest at 4.90565% per annum, the Class
A-2a Notes shall bear interest at 4.58% per annum, the Class A-2b Notes shall
bear interest at the then applicable One-Month LIBOR plus 0.20% per annum, the
Class A-3a Notes shall bear interest at 4.53% per annum, the Class A-3b Notes
shall bear interest at the then applicable One-Month LIBOR plus 0.25% per annum,
the Class A-4 Notes shall bear interest at the then applicable One-Month LIBOR
plus 0.30% per annum and the Class B Notes shall bear interest at 5.88%.
The Depositor has prepared and filed a shelf registration statement on Form
S-3 (having the registration number 333-132242), including a form of prospectus
and any supplements or amendments thereto filed prior to the date hereof, with
the Securities and Exchange Commission (the "Commission") in accordance with the
provisions of the Securities Act of 1933, as amended (the "Act"), relating to
the Notes, which registration statement has been declared effective by the
Commission not more than three years prior to the date hereof. If any
post-effective amendment to such registration statement has been filed with
respect thereto, prior to the execution and delivery of this Underwriting
Agreement, the most recent such amendment has been declared effective by the
Commission. For purposes of this Underwriting 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 Underwriting Agreement as the
"Registration Statement." The Company proposes to file with the Commission
pursuant to Rule 424(b) under the Act ("Rule 424(b)") a supplement (the
"Prospectus Supplement") to the prospectus included in the Registration
Statement (such prospectus, in the form it appears in the Registration
Statement, or in the form most recently revised and filed with the Commission
pursuant to Rule 424(b), is hereinafter referred to as the "Base Prospectus")
relating to the Notes and the method of distribution thereof. The Base
Prospectus and the Prospectus Supplement, together with any amendment thereof or
supplement thereto, are hereinafter referred to as the "Prospectus."
Prior to the "Time of Sale" (as defined below), the Depositor also had
prepared a Preliminary Prospectus with respect to the Notes. As used herein,
"Preliminary Prospectus" means, with respect to any date or time referred to
herein, the most recent preliminary Prospectus (as amended or supplemented, if
applicable), which has been prepared and delivered by the Depositor to the
Representative in accordance with the provisions hereof. As used herein, "Time
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of Sale" means 10:45 a.m. (New York City time) on November 9, 2007 (the time the
first Contract of Sale was entered into as designated by the Representative).
Section 2. Representations, Warranties and Covenants of the Depositor and
GECC.
(a) The Depositor represents and warrants to the Underwriters, as of the
date hereof, that:
(i) (x) 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.
(y) As of the Closing Date (as such term is defined below), the
Registration Statement, the Preliminary Prospectus and the Prospectus,
except with respect to any modification as to which the Representative has
been notified, shall be in all substantive respects in the form furnished
to the Representative or its counsel before such date or, to the extent not
completed on such date, shall contain only such specific additional
information and other changes (beyond that contained in the latest
Preliminary Prospectus that has previously been furnished to the
Representative) as the Depositor or GECC has advised the Representative,
before such time, will be included or made therein.
(z) 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 (the "Rules and
Regulations") and of the Trust Indenture Act of 1939; on the date of this
Underwriting Agreement, the Prospectus conforms, and as of the time of
filing the Prospectus pursuant to Rule 424(b), the Prospectus will conform,
in all material respects to the requirements of the Act and the Rules and
Regulations; the Registration Statement, at the Effective Time, did not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; and the Prospectus and the Designated Static Pool
Information (as defined below), taken together, as of its date, and as of
the Closing Date (as such term is defined below), will not include any
untrue statement of a material fact required to be stated therein or omit
to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they are made, not misleading;
provided, that the Depositor 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 Depositor 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 paragraph (z) makes no representation and
warranty as to the Preliminary Prospectus; the Preliminary Prospectus is
covered by paragraph
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(aa) below. As used herein the term "Designated Static Pool Information"
shall mean the static pool information referred to in the Preliminary
Prospectus and the Prospectus under the caption "Static Pool Information"
but deemed to be excluded from the Registration Statement and the
Prospectus pursuant to Item 1105(d) of Regulation AB issued under the Act.
(aa) The Preliminary Prospectus at the Time of Sale did not, and
at the Closing Date will not, include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (it being understood that no
representation or warranty is made with respect to the omission of pricing
and price-dependent information, which information shall of necessity
appear only in the final Prospectus); provided, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information contained in or omitted
from the Preliminary Prospectus based upon Underwriters' Information.
(bb) The Preliminary Prospectus and the Designated Static Pool
Information, taken together, at the Time of Sale did not, and at the
Closing Date will not, include any untrue statement of a material fact or
omit to state any material fact necessary in order 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 Preliminary Prospectus
or the Designated Static Pool Information based upon Underwriters'
Information.
(cc) Other than with respect to the Preliminary Prospectus, the
Prospectus and the Permitted Additional Information (as defined below), the
Company (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.
(ii) The Depositor is a limited liability company duly formed, validly
existing and in good standing under the laws of its state of formation, and
the Company is a limited liability company, duly formed, validly existing
and in good standing under the laws of its state of formation, and each of
the Depositor and the Company has all power and authority necessary to own
or hold its properties and conduct its business in which it is engaged as
described in the Prospectus.
(iii) Each of the Company and the Depositor has, and will have, the
requisite power to execute and deliver the Related Documents and this
Underwriting Agreement to which it is a party, and any other agreement or
document executed by either of them
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in connection with the issuance and sale of the Offered Notes and this
Underwriting Agreement and to perform their respective obligations
hereunder and thereunder.
(iv) Each of the Related Documents and this Underwriting Agreement to
which it is a party has been, or will be, duly and validly authorized,
executed and delivered by each of the Company and the Depositor, and
assuming due authorization, execution and delivery thereof by the other
parties thereto, each of the Related Documents and this Underwriting
Agreement constitutes, or will constitute on the Closing Date, the valid,
legal and binding obligation of each of the Company and the Depositor,
enforceable against each of the Company and the Depositor in accordance
with its terms, subject to (A) the effect of bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, (B) the application of equitable principles in
any proceeding, whether at law or in equity or (C) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of
this Underwriting Agreement that purport to provide indemnification for
securities laws liabilities.
(v) The Offered Notes will conform to the description thereof
contained in the Preliminary Prospectus and the Prospectus and when the
Offered Notes are duly and validly executed, issued and delivered in
accordance with the Related Documents, and sold to the Underwriters as
provided herein, will each be validly issued and outstanding and entitled
to the benefits of the Indenture.
(vi) Neither the execution and delivery by the Company or the
Depositor of any Related Document or this Underwriting Agreement to which
it is a party nor the consummation by the Company or the Depositor of the
transactions contemplated herein or therein, nor the issuance of the
Offered Notes by the Company or the public offering thereof as contemplated
in the Preliminary Prospectus and the Prospectus, will conflict in any
material respect with or result in a material breach of, or constitute a
material default (with notice or passage of time or both) under, or result
in the imposition of any lien, pledge, charge, encumbrance, adverse claim
or other security interest of any other person (collectively, "Liens") upon
any of the property or assets of the Company or the Depositor (except as
required or permitted pursuant thereto or hereto), pursuant to any material
mortgage, indenture, loan agreement, contract or other instrument to which
the Company or the Depositor is party or by which either of them is bound,
nor will such action result in any violation of any provisions of any
applicable law, administrative regulation or administrative or court
decree, the certificate of formation or limited liability company agreement
of the Company or the certificate of formation or limited liability company
agreement of the Depositor.
(vii) Other than as set forth in or contemplated by the Prospectus,
there are no legal or governmental proceedings pending to which the
Depositor or the Company is a party or of which any property or assets of
the Depositor or the Company are the subject of which, if determined
adversely to the Depositor or the Company, as applicable, would
individually or in the aggregate have a material adverse effect on the
business, the financial position, the business prospects, the operations of
the Depositor or the Company, as applicable, or on the performance by the
Depositor or the Company, as
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applicable, of its obligations hereunder or under the Related Documents to
which it is a party; and, to the best knowledge of the Depositor and the
Company, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(viii) No consent, approval, authorization or order of, or
registration, filing or declaration with, any court or governmental agency
or body is required, or will be required, in connection with (i) the
execution and delivery by the Company or the Depositor of any Related
Document or this Underwriting Agreement to which it is a party or the
performance by the Company or the Depositor under any Related Document or
this Underwriting Agreement to which it is a party or (ii) the offer, sale
or delivery of the Offered Notes, except such as shall have been obtained
or made, as the case may be, or will be obtained or made, as the case may
be, prior to the Closing Date, or will not materially adversely affect the
ability of the Company or the Depositor to perform its obligations under
any Related Document or this Underwriting Agreement.
(ix) Each of the Company and the Depositor possesses, and will
possess, all material licenses, certificates, authorities or permits issued
by the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the business now conducted by it and as described in
the Preliminary Prospectus and Prospectus, except to the extent that the
failure to have such licenses, certificates, authorities or permits does
not have a material adverse effect on the Offered Notes or the financial
condition of the Company or the Depositor, and neither the Company nor the
Depositor has received, nor will have received as of the Closing Date, any
notice of proceedings relating to the revocation or modification of any
such license, certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would materially and adversely affect the conduct of its business,
operations or financial condition
(x) Each of the representations and warranties of the Depositor and
the Company set forth in each Related Document is true and correct in all
material respects.
(xi) Neither the Depositor nor the Company is now, and following the
issuance of the Offered Notes, neither the Depositor nor the Company will
be, an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
(xii) The Indenture has been qualified under the Trust Indenture Act
of 1939, as amended.
(xiii) The Depositor was not, on the date on which the first bona fide
offer of the Offered Notes sold pursuant to this Underwriting Agreement was
made, an "ineligible issuer" as defined in Rule 405 under the Act.
(b) GECC represents and warrants to the Underwriters, as of the date
hereof, that:
(i) GECC is a corporation, duly organized and validly existing under
the laws of its state of formation and GECC has all power and authority
necessary to own or hold its properties and conduct its business in which
it is engaged as described in the Prospectus.
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(ii) GECC has, and will have, the requisite power to execute and
deliver the Related Documents and this Underwriting Agreement to which it
is a party, and any other agreement or document executed by it in
connection with the issuance and sale of the Offered Notes and this
Underwriting Agreement and to perform its obligations hereunder and
thereunder.
(iii) Each of the Related Documents and this Underwriting Agreement to
which it is a party has been, or will be, duly and validly authorized,
executed and delivered by GECC and assuming due authorization, execution
and delivery thereof by the other parties thereto, each of the Related
Documents and this Underwriting Agreement constitutes, or will constitute
on the Closing Date, the valid, legal and binding obligation of GECC,
enforceable against GECC in accordance with its terms, subject to (A) the
effect of bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, (B) the
application of equitable principles in any proceeding, whether at law or in
equity or (C) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the
enforceability of the provisions of this Underwriting Agreement that
purport to provide indemnification for securities laws liabilities.
(iv) Neither the execution and delivery by GECC of any Related
Document or this Underwriting Agreement to which it is a party nor the
consummation by GECC of the transactions contemplated herein or therein,
nor the public offering thereof as contemplated in the Prospectus and the
Prospectus Supplement, will conflict in any material respect with or result
in a material breach of, or constitute a material default (with notice or
passage of time or both) under, or result in the imposition of any Liens
upon any of the property or assets of GECC (except as required or permitted
pursuant thereto or hereto), pursuant to any material mortgage, indenture,
loan agreement, contract or other instrument to which GECC is party or by
which it is bound, nor will such action result in any violation of any
provisions of any applicable law, administrative regulation or
administrative or court decree or the articles on incorporation or the
by-laws of GECC.
(v) No consent, approval, authorization or order of, or registration,
filing or declaration with, any court or governmental agency or body is
required, or will be required, in connection with (i) the execution and
delivery by GECC of any Related Document or this Underwriting Agreement to
which it is a party or the performance by GECC under any Related Document
or this Underwriting Agreement to which it is a party or (ii) the offer,
sale or delivery of the Offered Notes, except such as shall have been
obtained or made, as the case may be, or will be obtained or made, as the
case may be, prior to the Closing Date, or will not materially adversely
affect the ability of GECC to perform its obligations under any Related
Document or this Underwriting Agreement.
(vi) GECC possesses, and will possess, all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct the
business now conducted by it and as described in the Preliminary Prospectus
and Prospectus, except to the extent that the failure to have such
licenses, certificates, authorities or permits does not have a material
adverse effect on the Offered Notes or the financial condition of GECC, and
GECC has
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not received, nor will have received as of the Closing Date, any notice of
proceedings relating to the revocation or modification of any such license,
certificate, authority or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of its business, operations or financial
condition.
(vii) Each of the representations and warranties of GECC set forth in
each Related Document to which it is a party is true and correct in all
material respects.
Section 3. Purchase, Sale and Delivery of Offered Notes. (a) On the basis
of the representations, warranties and agreements contained in this Underwriting
Agreement, but subject to the terms and conditions set forth in this
Underwriting Agreement, the Depositor agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Depositor, the respective original principal amounts
of the Offered Notes set forth in Schedule I hereto opposite the name of such
Underwriter, plus any additional original principal amount of Offered Notes
which such Underwriter may be obligated to purchase pursuant to Section 12
hereof, at the purchase price therefor set forth in Schedule I hereto.
(b) Against payment of the purchase price specified in Schedule I hereto in
same day funds drawn to the order of the Depositor (or paid by such other manner
as may be agreed upon by the Depositor and the Representative), the Depositor
will deliver the Offered Notes to the Underwriters at the offices of Xxxxx Xxxxx
LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on November 20, 2007, or at such
other place and time as the Representative and the Depositor shall agree upon,
each such time being herein referred to as a "Closing Date." The Offered Notes
will initially be maintained through the facilities of The Depository Trust
Company, as indicated in the Prospectus Supplement.
Section 4. Public Offering of Offered Notes. (a) Each Underwriter agrees
that all offers, solicitations and sales shall be made in compliance with all
applicable securities laws and regulations. Furthermore, such Underwriter shall
comply with all applicable securities laws and regulations in connection with
the use of Free Writing Prospectuses, including but not limited to Rules 164 and
433 of the Act.
(b) It is understood by the parties hereto that the Underwriters shall
offer and/or solicit offers for the Offered Notes for sale to the public (which
may include selected dealers), as set forth in the Preliminary Prospectus and
the Prospectus.
Section 5. Covenants of the Depositor. The Depositor covenants and agrees
with each Underwriter:
(a) The Depositor shall prepare a Prospectus Supplement setting forth the
amount of Notes and the terms thereof not otherwise specified in the Base
Prospectus, the price at which the Offered Notes are to be purchased by the
Underwriters from the Depositor, either the initial public offering price or the
method by which the price at which the Offered Notes are to be sold will be
determined, the selling concessions and reallowances, if any, and such other
information as the Representative and the Depositor deem appropriate in
connection with the offering of the
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Offered Notes; provided, however, that each of the Company and the Depositor
shall make no amendment or supplement to the Registration Statement affecting or
relating to any material extent to the Offered Notes, and shall make no
amendment or supplement to the Prospectus or the Prospectus Supplement relating
to the Offered Notes without furnishing the Representative with a copy of the
proposed form thereof and providing the Representative with a reasonable
opportunity to review the same, and shall not file with the Commission any such
amendment or supplement to which the Representative shall reasonably object;
and, provided further, that each of the Company and the Depositor shall advise
the Representative, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes effective
or any supplement to the Prospectus or any amended Prospectus has been filed or
mailed for filing, of the issuance of any stop order by the Commission, of the
suspension of the qualification of the Offered Notes for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement, or the Prospectus or for additional information;
and, in the event of the issuance of any such stop order or of any order
preventing or suspending the use of the Prospectus Supplement relating to the
Offered Notes or suspending any such qualification, promptly shall use its best
efforts to obtain its withdrawal.
(b) The Depositor shall endeavor to arrange for the qualification of the
Offered Notes for sale under the laws of such jurisdictions as the Underwriters
may reasonably designate and to maintain such qualification in effect so long as
required for the initial sale of the Offered Notes; provided, however, that the
Depositor shall not be required to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject it to
general or unlimited service of process in any jurisdiction where it is not now
so subject.
(c) The Depositor shall furnish the Underwriters copies of each related
Preliminary Prospectus, the Prospectus, and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as the
Underwriters may from time to time reasonably request; and, if the delivery of a
Prospectus shall be at the time required by law in connection with sales of the
Offered Notes and either (i) any event shall have occurred as a result of which
the Prospectus or Prospectus Supplement would include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (ii) for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus, to notify the
Representative and to prepare and furnish to the Representative as the
Representative may from time to time reasonably request an amendment or a
supplement to the Prospectus which will correct such statement or omission or
effect such compliance, or if it is necessary at any time to amend or supplement
the Prospectus to comply with the Act or the Rules and Regulations, the
Depositor will promptly prepare and file with the Commission an amendment or
supplement that will correct such statement or omission or an amendment that
will effect such compliance; provided that the Depositor shall not effect any
such amendment without the consent of the Representative.
(c) The Depositor shall file or cause to be filed with the Commission, on a
timely and complete basis, all reports required to be filed with respect to the
Offered Notes pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act.
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(d) So long as any of the Offered Notes are outstanding, the Depositor
shall furnish each Underwriter copies of all reports or other communications
(financial or other) furnished to holders of such Offered Notes, and deliver to
the Underwriters during such same period (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed with the
Commission and (ii) such additional information concerning the business and
financial condition of the Depositor as such Underwriter may from time to time
reasonably request.
(e) The Depositor shall pay all expenses (other than fees of counsel for
the Underwriters, except as provided below) incident to the performance of the
obligations under this Underwriting Agreement, including:
(i) the word processing, printing and filing of the Registration
Statement as originally filed and of each amendment thereto;
(ii) the reproduction of this Underwriting Agreement and each Related
Document;
(iii) the preparation, printing, issuance and delivery of the Offered
Notes to the Underwriters;
(iv) the fees and disbursements of counsel and accountants for GECC
and/or the Depositor;
(v) the qualification of the Offered Notes under securities laws in
accordance with the provisions of Section 5(b) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey, if any;
(vi) if requested by the Representative, the determination of the
eligibility of the Offered Notes for investment and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and
in connection with the preparation of a legal investment memorandum;
(vii) the printing and delivery to the Underwriters of copies of the
Preliminary Prospectuses, and of the Prospectus and Prospectus Supplement
and any amendments or supplements thereto;
(viii) the fees of the rating agencies rating the Notes; and
(ix) the fees and expenses of the Indenture Trustee and its counsel.
If the sale of the Offered Notes is not consummated by reason of any
failure, refusal or inability on the part of GECC or the Depositor to perform
any agreement on its part to be performed or because any condition of the
Underwriters' obligations hereunder required to be fulfilled shall not have been
fulfilled (other than as a result of any breach or default by the Underwriters),
the Depositor shall be obligated to reimburse the Underwriters for all
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
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(g) So long as the Offered Notes are outstanding, or until such time as
each Underwriter shall cease to maintain a secondary market in such Offered
Notes, whichever occurs first, the Depositor shall deliver to each Underwriter
all statements and reports furnished to the Indenture Trustee pursuant the
Related Documents, as soon as such statements and reports are furnished to the
Indenture Trustee.
(h) The Depositor will cause the Final Terms (as defined in Section 8(b)
hereof) to be transmitted to the Commission for filing pursuant to Rule 433
under the Act by means reasonably calculated to result in filing with the
Commission pursuant to such rule.
Section 6. Conditions Precedent to the Obligations of the Underwriters. The
obligation of the Underwriters to purchase and pay for the Offered Notes is
subject to the accuracy of the representations and warranties on the part of
GECC and the Depositor herein and in the Related Documents to which they are
parties as of the Closing Date, to the accuracy of the statements of officers or
managers of GECC and the Depositor made pursuant to the provisions hereof, to
the performance by each of GECC and the Depositor of its obligations hereunder
and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than
4:00 p.m., New York time, on the day following the date of this Underwriting
Agreement or such later date as shall have been consented to by the
Representative; and prior to the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
GECC or the Depositor, shall be contemplated by the Commission.
(b) Each of GECC and the Depositor shall have delivered on or before the
Closing Date to the Representative a certificate, dated as of such Closing Date,
signed by the president, senior vice president, vice president, manager, or
other officer or authorized person of GECC or the Depositor, as applicable, to
the effect that the signer and/or persons for whom the signer has management
authority of such certificate has carefully examined the Registration Statement,
the Preliminary Prospectus, the Prospectus, each Related Document and this
Underwriting Agreement and that:
(i) to the best of such person's knowledge, the representations and
warranties of GECC and/or the Depositor, as the case may be, in this
Underwriting Agreement and in each Related Document to which it is a party
are true and correct in all material respects at and as of such Closing
Date with the same effect as if made on such Closing Date;
(ii) each of GECC and the Depositor, as the case may be, has complied
with all the Related Documents to which it is a party and satisfied all the
conditions on its part to be performed or satisfied at or prior to such
Closing Date;
(iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or, to GECC's or the Depositor's knowledge, threatened as of such
Closing Date; and
11
(iv) nothing has come to such person's attention that would lead such
person to believe that the Registration Statement or the Prospectus, each
as amended and supplemented as of such Closing Date or the Preliminary
Prospectus, as of the Time of Sale, contains any untrue statement of a
material fact or omits to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(c) Since the respective dates as of which information is given in the
Prospectus and Prospectus Supplement, there shall not have occurred any material
adverse change or any development involving a prospective material adverse
change in or affecting particularly the business or assets of the Company, the
Depositor, or any material adverse change in the financial position or results
or operations of the Company, the Depositor or GECC otherwise than as set forth
or contemplated in the Prospectus as of the date hereof, which in the
Representative's reasonable judgment materially impairs the investment quality
of the Offered Notes so as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Offered Notes on the terms and
in the manner contemplated in the Prospectus and Prospectus Supplement.
(d) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for GECC, GECS and the Depositor, an
opinion, dated the Closing Date, addressed to the Underwriters and satisfactory
in form and substance to the Representative and to counsel to the Underwriters,
relating to certain corporate, securities law and security interests matters.
(e) [Reserved].
(f) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for GECC and the Depositor, an opinion,
dated the Closing Date, addressed to the Underwriters and satisfactory in form
and substance to the Representative and to counsel to the Underwriters, relating
to certain insolvency and bankruptcy matters and federal income tax matters.
(f) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for the Indenture Trustee (or its agent, as
applicable), an opinion, dated the Closing Date, addressed to the Underwriters,
GECC and the Depositor and satisfactory in form and substance to the
Representative and to counsel to the Underwriters.
(g) Counsel to GECC and the Depositor shall have furnished to the
Representative any opinions supplied to the rating agencies relating to certain
matters with respect to the Notes, which opinions shall also be addressed to the
Underwriters.
(h) The Representative shall have received (i) a letter, dated October 31,
2007, relating to the Preliminary Prospectus, (ii) a letter, dated November 8,
2007, relating to the supplement to the Preliminary Prospectus and (iii) a
letter, dated November 9, 2007, relating to the Prospectus, each addressed to
the Underwriters, from certified public accountants (who shall be satisfactory
to the Representative), substantially in the form approved by the Representative
and counsel to the Underwriters.
12
(i) All documents incident to the Related Documents and this Underwriting
Agreement shall be reasonably satisfactory in form and substance to the
Representative and counsel to the Underwriters; and GECC and/or the Depositor
shall furnish the Representative and counsel to the Underwriters with such other
opinions, certificates, letters and documents as the Representative or counsel
to the Underwriters shall reasonably request.
(j) The Class A-1 Notes shall have been rated no less than "P-1" by Xxxxx'x
Investors Services, Inc. ("Moody's"), "A-1+" by Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P") and "F1+" by
Fitch, Inc. ("Fitch"), each of the Class A-2a Notes, the Class A-2b Notes, the
Class A-3a Notes, the Class A-3b Notes and the Class A-4 Notes shall have each
been rated no less than "Aaa" by Moody's and "AAA" by S&P and Fitch and the
Class B Notes shall have been rated no less than "A1" by Moody's, "A+" by S&P
and "A" by Fitch, such ratings shall not have been rescinded, and no public
announcement shall have been made by the respective rating agencies that the
rating of the Notes have been placed under review.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Underwriting Agreement may be
terminated by the Representative by notice to the Depositor at any time at or
prior to the Closing Date, and such termination shall be without liability of
any party to any other party except as provided in Section 7 hereof.
Section 7. Indemnification and Contribution. (a) The Depositor and GECC,
jointly and severally, agree to indemnify and hold harmless each Underwriter and
each person who controls the Underwriter within the meaning of the Act or the
Exchange Act 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) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in (i) the Registration
Statement, (ii) the Preliminary Prospectus (it being understood that such
indemnification with respect to the Preliminary Prospectus does not include the
omission of pricing and price-dependent information, which information shall of
necessity appear only in the final Prospectus), (iii) the Prospectus, (iv) the
Designated Static Pool Information or (v) information provided by the Depositor
or GECC to the extent used in the written communications constituting an
electronic road show within the meaning of Rule 433(h) under the Act, or are
caused by the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading and will
reimburse each Underwriter (or any person controlling such Underwriter) for any
legal or other expenses (except where the Underwriter is required to bear such
expenses pursuant to Section 7(c)) reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; which expenses the indemnifying party shall pay as and
when incurred, at the request of such Underwriter (or any person controlling
such Underwriter), to the extent that the indemnifying party believes that it
will be ultimately obligated to pay such expenses; provided, however, that (i)
none of the Depositor or GECC 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 under the second and fourth paragraphs under "Underwriting" in the
Prospectus Supplement in reliance
13
upon and in conformity with written information furnished to the Depositor or
GECC by any Underwriter expressly for use therein (the "Underwriter
Information") and (ii) such indemnity with respect to any Corrected Statement
(as defined below) in such Prospectus (or supplement thereto) shall not inure to
the benefit of the Underwriter (or any person controlling the Underwriter) 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 (or supplement thereto) was
corrected (a "Corrected Statement") in such supplement and such supplement was
furnished by the Depositor or GECC to the Underwriter prior to the delivery of
the confirmation of the sale of such Offered Notes, but such Underwriter did not
furnish such supplement to the Prospectus containing the Corrected Statement to
such investor prior to the delivery of such confirmation. This indemnity
agreement will be in addition to any liability which the Depositor or GECC may
otherwise have.
(b) Each Underwriter severally, and not jointly, agrees to indemnify and
hold harmless the Depositor, GECC, each of their respective directors and
officers who signed the Registration Statement relating to the Offered Notes,
and each person who controls the Depositor or GECC within the meaning of the Act
or the Exchange Act (i) to the same extent as the foregoing indemnities from the
Depositor and GECC to the Underwriter, but only in the Underwriter Information
and (ii) with respect to the failure on the part of such Underwriter to convey
to any investor with whom such Underwriter entered into a "contract of sale"
within the meaning contemplated by Rule 159 of the Act (a "Contract of Sale"),
prior to the time such investor entered into such Contract of Sale, the
Preliminary Prospectus. This indemnity agreement will be in addition to any
liability which the Underwriter may otherwise have.
(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(a) or (b), notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability unless such indemnified party is materially
harmed by such failure and shall not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section 7(a) or (b). 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 and to otherwise participate in
the defense of such
14
action 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 (plus local counsel) for the
indemnified parties), (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 be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Depositor and GECC on the one hand and the Underwriters on the other from
the offering of the Offered Notes. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Depositor and GECC on the
one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Depositor and GECC 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) received by the Depositor and GECC bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Depositor or GECC on the
one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the aggregate underwriting discounts actually paid to such Underwriter
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. The
15
Underwriters obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The Depositor, GECC 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 and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party believes that it will be ultimately obligated to pay
such expenses. In the event that any expenses so paid by the indemnifying party
are subsequently determined to not be required to be borne by the indemnifying
party hereunder, the party which received such payment shall promptly refund the
amount so paid to the party which made such payment.
Notwithstanding anything to the contrary in Section 7(d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of Section 7(d), each person who
controls the Underwriter within the meaning of either the Act or the Exchange
Act shall have the same rights to contribution as the Underwriter, and each
person who controls the Depositor or GECC within the meaning of either the Act
or the Exchange Act, each officer of the Depositor or GECC who shall have signed
the Registration Statement and each director of the Depositor or GECC shall have
the same rights to contribution as the Depositor or GECC, as applicable, subject
in each case to the immediately preceding sentence of this paragraph.
Section 8. Offering Communications. (a) For purposes hereof, "Free Writing
Prospectus" shall have the meaning given such term in Rule 405 under the Act.
"Issuer Free Writing Prospectus" shall mean an issuer free writing prospectus,
as defined in Rule 433 under the Act, relating to the Notes that (i) is required
to be filed with the Commission by the Depositor or (ii) is exempt from filing
pursuant to Rule 433(d)(5)(i) under the Act because it contains a description of
the Notes or of the offering that does not reflect the final terms. "Permitted
Additional Information" shall mean information that is included in any road show
presentation the Company, the Depositor or GECC has approved (each, a "Road
Show").
(b) Other than the Preliminary Prospectus, Prospectus and the Permitted
Additional Information, each Underwriter represents, warrants and agrees with
GECC and the Depositor 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 Time of Sale, 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
16
of Sale, as set forth in the related confirmation of trade. Notwithstanding the
foregoing, the Depositor agrees that the Underwriters may disseminate
information on Bloomberg to prospective investors relating solely to (i)
information of the type identified in Rule 134 of the Act, (ii) information
included in the Preliminary Prospectus, (iii) the status of allocations and
subscriptions of the Offered Notes, expected pricing parameters of the Notes and
the yields and weighted average lives of the Notes, and (iv) information
constituting final terms of the Notes within the meaning of Rule 433(d)(5)(ii)
under the Act. Each Underwriter represents that communications containing
information described in clauses (i), (ii) and (iii) of the immediately
preceding sentence shall not be required to be filed with the Commission as Free
Writing Prospectuses. No later than 10:00 A.M. New York City time on the first
day following determination of the interest rates and initial principal amounts
of the Notes, the Underwriters shall provide to the Depositor, for filing with
the Commission as provided in Section 5(h), a Free Writing Prospectus (the
"Final Terms") containing final terms of the Notes.
(c) Each Underwriter that uses the Internet or other electronic means to
offer or sell the Offered Notes severally represents that it has in place, and
covenants that it shall maintain, internal controls and procedures which it
reasonably believes to be sufficient to ensure compliance in all material
respects with all applicable legal requirements under the Act.
Section 9. Agreement of each Underwriter. (a) Each Underwriter agrees that
(i) if the Prospectus is not delivered with the confirmation in reliance on Rule
172 under the Act, it will include in every confirmation sent out by such
Underwriter the notice required by Rule 173 under the Act, informing the
investor that the sale was made pursuant to the Registration Statement and that
the investor may request a copy of the Prospectus from the Underwriter; (ii) if
a paper copy of the Prospectus is requested by a Person who receives a
confirmation, such Underwriter shall deliver a paper copy of such Prospectus to
such Person; and (iii) if an electronic copy of the Prospectus is delivered by
such Underwriter for any purpose, such copy shall be the same electronic file
containing the Prospectus in the identical form transmitted electronically to
such Underwriter by or on behalf of the Depositor specifically for use by such
Underwriter pursuant to this Section 9; for example, if the Prospectus is
delivered to such Underwriter by or on behalf of the Depositor in a single
electronic file in a read-only format, then such Underwriter will deliver the
electronic copy of the Prospectus in the same single electronic file in
read-only format. Each Underwriter further agrees that if it delivers to an
investor the Prospectus in read-only format, upon such Underwriter's receipt of
a request from the investor within the period for which delivery of the
Prospectus is required, such Underwriter will promptly deliver or cause to be
delivered to the investor, without charge, a paper copy of the Prospectus.
(b) Prior to the Closing Date, each Underwriter shall notify GECC and the
Depositor of (i) the date on which the Preliminary Prospectus is first used and
(ii) the time of the first Contract of Sale to which such Preliminary Prospectus
relates.
(c) Each Underwriter represents and agrees (i) that it did not enter into
any commitment to sell any Offered Notes prior to the Time of Sale, it did not
enter into any Contract of Sale for any Offered Notes prior to the Time of Sale
and, without limiting the foregoing, it did not enter into a Contract of Sale
with an investor in the Offered Notes prior to the delivery of the Preliminary
Prospectus to such investor, and (ii) that it will, at any time that
17
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 Depositor or by GECC), prior
to the applicable time of any such Contract of Sale with respect to such
investor, the Preliminary Prospectus.
(d) If the Depositor, GECC or an Underwriter determines or becomes aware
that any "written communication" (as defined in Rule 405 under the Act)
(including the Preliminary Prospectus) or oral statement (when considered in
conjunction with all information conveyed at the time of the Contract of Sale)
made or prepared by the Depositor or such Underwriter contains an untrue
statement of material fact or omits to state a material fact necessary to make
the statements, in light of the circumstances under which they were made, not
misleading at the time that a Contract of Sale was entered into, either the
Depositor or such Underwriter may prepare corrective information, with notice to
the other party and such Underwriter shall deliver such information in a manner
reasonably acceptable to both parties, to any Person with whom a Contract of
Sale was entered into based on such written communication or oral statement, and
such information shall provide any such Person with the following:
(i) adequate disclosure of the contractual arrangement;
(ii) adequate disclosure of the Person's rights under the existing
Contract of Sale at the time termination is sought;
(iii) adequate disclosure of the new information that is necessary to
correct the misstatements or omissions in the information given at the time
of the original Contract of Sale; and
(iv) a meaningful ability to elect to terminate or not terminate the
prior Contract of Sale and to elect to enter into or not enter into a new
Contract of Sale.
Any costs or losses incurred in connection with any such termination or
reformation shall be subject to Section 7.
Section 10. Termination. This Underwriting Agreement shall be subject to
termination in the absolute discretion of the Representative, by notice given to
the Depositor prior to delivery of and payment for the Offered Notes, if prior
to such time there shall gave occurred (i) any outbreak or escalation of
hostilities or other calamity or crisis, the effect of which is such as to make
it, in the reasonable judgment of the Representative, impracticable or
inadvisable to market the Offered Notes or to enforce contracts for the sale of
the Offered Notes on the terms and in the manner contemplated by the Prospectus
and the Prospectus Supplement, as amended or supplemented, (ii) the suspension
of trading generally by either the American Stock Exchange or the New York Stock
Exchange, or the establishment of minimum or maximum prices or ranges of prices,
by either of such exchanges or by order of the Commission or any other
governmental authority, or any general banking moratorium declared by federal or
New York authorities, or (iii) a disruption in securities settlement, payment or
clearance services in the United States.
18
Section 11. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
each of GECC, the Depositor or their respective officers or managers and of the
Underwriters set forth in or made pursuant to this Underwriting Agreement will
remain in full force and effect, regardless of any investigation or statement as
to the results thereof, made by or on behalf of any Underwriter, GECC, the
Depositor or any of their respective representatives, officers, managers or
directors of any controlling person, and will survive delivery of and payment
for the Offered Notes. Notwithstanding anything to the contrary herein, the
provisions of Section 7 hereof shall survive the termination or cancellation of
this Underwriting Agreement.
Section 12. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail on the Closing Date to purchase the Offered Notes
which it or they are obligated to purchase under this Underwriting Agreement
(the "Defaulted Notes"), the Representative shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Notes in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Representative shall not have completed such
arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Notes does not exceed 10% of the
principal amount of the Offered Notes to be purchased pursuant to this
Underwriting Agreement, each of the non-defaulting Underwriters named in this
Underwriting Agreement shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations thereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Notes exceeds 10% of the principal
amount of the Offered Notes to be purchased pursuant to this Underwriting
Agreement, this Underwriting Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section 12 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Underwriting Agreement, either the Representative or the Depositor shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus Supplement or in any other documents or arrangements.
Section 13. Notices. All communications hereunder will be in writing and:
(i) if sent to the Underwriters, will be mailed, delivered or sent by
facsimile transmission and confirmed to the Representative at:
19
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Hantz Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
XxXxx Xxxxxx LLP
Xxx Xxxxxxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000;
(ii) if sent to the Depositor, will be mailed, delivered or sent by
facsimile transmission, and confirmed to it at:
CEF Equipment Holding, LLC
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Capital Markets Operations
Telephone: (000) 000-0000
Facsimile: (000) 000-0000;
with a copy to:
Xxxxx Xxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000;
20
(iii) if sent to GECC, will be mailed, delivered or sent by facsimile
transmission, and confirmed to it at:
General Electric Capital Corporation
00 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000;
or to such other address as GECC, the Depositor or the Representative may
designate in writing to the other parties hereto.
Section 14. Successors. This Underwriting Agreement will inure to the
benefit of and be binding upon the Underwriters, GECC and the Depositor and
their respective successors and the officers, managers and directors and
controlling persons referred to in Section 7 hereof, and no other person will
have any right or obligations hereunder.
Section 15. Governing Law. THIS UNDERWRITING AGREEMENT SHALL 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. EACH PARTY
HERETO HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW
YORK STATE OR FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW YORK, NEW YORK OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS UNDERWRITING AGREEMENT, AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT
OF THE ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE OR FEDERAL
COURT, AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OF
PROCEEDING.
Section 16. Nonpetition Covenant. Notwithstanding any prior termination of
this Underwriting Agreement, the Underwriters, prior to the date which is one
year and one day after the payment in full of all Notes issued by the Company,
shall not acquiesce, petition or otherwise invoke or cause the Depositor or the
Company to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Depositor or the Company
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 Depositor or the Company or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Depositor or the Company.
Section 17. Counterparts. This Underwriting Agreement may be executed by
each of the parties hereto in any number of counterparts, and by each of the
parties hereto on separate
21
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Section 18. Nature of Underwriters' Services. The Depositor acknowledges
and agrees that each Underwriter in providing investment banking services to the
Depositor in connection with the offering, including in acting pursuant to the
terms of this Underwriting Agreement, has acted and is acting as an independent
contractor and not as a fiduciary and the Depositor does not intend any
Underwriter to act in any capacity other than independent contractor, including
as a fiduciary. For avoidance of doubt, the Underwriters are not acting as
agents or representatives of the Company.
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If the foregoing is in accordance with your understanding, please sign and
return to us a counterpart hereof, whereupon this letter and your acceptance
hereof shall constitute a binding agreement among the Underwriters, the
Depositor and GECC.
Very truly yours,
CEF EQUIPMENT HOLDING, L.L.C.
By:
-------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
-------------------------------------
Name:
Title:
Accepted and agreed in New York, New
York, as of the date hereof:
XXXXXX XXXXXXX & CO. INCORPORATED
By:
-----------------------------------
Name:
Title:
Acting on behalf of itself and, if applicable, as the Representative of the
Underwriters.
Schedule I
Approximate
Amount Approximate
Purchased by Amount
Initial Purchase Xxxxxx Xxxxxxx Purchased by
Principal Price & Co. X. X. Xxxxxx Securities
Class Amount Percentage Incorporated Inc.
---------- -------------- ---------- -------------- -----------------------
Class A-1 $ 243,000,000 100.00000% $ 94,500,000 $ 94,500,000
Class A-2a $ 75,000,000 99.99716% $ 28,754,417 $ 28,754,417
Class A-2b $ 208,000,000 100.00000% $ 79,745,583 $ 79,745,583
Class A-3a $ 53,000,000 99.99827% $ 20,215,415 $ 20,215,415
Class A-3b $ 200,000,000 100.00000% $ 76,284,585 $ 76,284,585
Class A-4 $ 311,727,000 100.00000% $119,863,500 $119,863,500
Class B $ 26,728,000 99.98810% $ 13,364,000 $ 13,364,000
Total $1,117,455,000
Approximate
Approximate Amount
Approximate Amount Purchased by
Initial Purchase Amount Purchased by Xxxxxxx, Lynch, Pierce,
Principal Price Purchased by Barclays Deutsche Bank Xxxxxx & Xxxxx
Class Amount Percentage Capital Inc. Securities Inc. Incorporated
---------- -------------- ---------- --------------------- --------------- -----------------------
Class A-1 $ 243,000,000 100.00000% $18,000,000 $18,000,000 $18,000,000
Class A-2a $ 75,000,000 99.99716% $ 5,830,389 $ 5,830,389 $ 5,830,389
Class A-2b $ 208,000,000 100.00000% $16,169,611 $16,169,611 $16,169,611
Class A-3a $ 53,000,000 99.99827% $ 4,189,723 $ 4,189,723 $ 4,189,723
Class A-3b $ 200,000,000 100.00000% $15,810,277 $15,810,277 $15,810,277
Class A-4 $ 311,727,000 100.00000% $24,000,000 $24,000,000 $24,000,000
Class B $ 26,728,000 99.98810% -- -- --
Total $1,117,455,000
Total Purchase Price: $1,117,448,772.47
