GE EQUIPMENT TRANSPORTATION LLC, SERIES 2011-1 Asset Backed Notes UNDERWRITING AGREEMENT
Exhibit 1(a)
EXECUTION COPY
Asset Backed Notes
June 22, 2011
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx 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”) |
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Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 |
Ladies and Gentlemen:
Section 1. Introductory. GE Equipment Transportation LLC, Series 2011-1 (the
“Company”), CEF Equipment Holding, L.L.C. (“CEFEH” or the “Depositor”) and
General Electric Capital Corporation (“GECC”), as sponsor, propose to cause the sale of the
GE Equipment Transportation LLC, Series 2011-1 Asset Backed Notes, consisting of the Class A-1,
Class A-2, Class A-3 and Class A-4 Notes (collectively, the “Class A Notes” or the
“Offered Notes”). The Company will also issue the Class B Notes (the “Class B
Notes”) and Class C Notes (the “Class C Notes” and together with the Class B Notes and
the Offered Notes, the “Notes”). The Notes will be issued pursuant to an Indenture, dated
as of June 29, 2011 (the “Indenture”), between the Company and Citibank, N.A. as indenture
trustee (the “Indenture Trustee”). The Notes will be issued in an aggregate initial
principal amount of $691,858,000. 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 secured by transportation equipment and the related security interests in the equipment
financed thereby (collectively, the “Loans”). GECC will sell the Loans to the Depositor
pursuant to a Loan Sale Agreement, dated as of June 29, 2011 (the “Loan Sale Agreement”),
between the Depositor and GECC. Pursuant to a Loan Purchase and Sale Agreement, dated as of June
29, 2011 (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 June 29,
2011 (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 0.29377% per annum, the Class A-2 Notes shall bear
interest at 0.77% per annum, the Class A-3 Notes shall bear interest at 1.00% per annum and the
Class A-4 Notes shall bear interest at 1.33% per annum.
The Depositor has prepared and filed a shelf registration statement on Form S-3 (having the
registration number 333-160604), 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. Either no
post-effective amendment has been filed or 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 (together with the Permitted Additional Information (as
defined herein), the “Time of Sale Information”). 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 of Sale” means 12:45 p.m. (New York City time) on June 22, 2011 (the time the
first Contract of Sale (as defined below) was entered into as designated by the Representative).
If, subsequent to the Time of Sale 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 Depositor has prepared and delivered to the Representative 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 “Time of Sale Information” will refer to the Ratings FWP (as defined below) and
the information conveyed to investors on the date of entry into the first new Contract of Sale in
an amended Preliminary Prospectus approved by the Company and the Representative that corrects such
material misstatements or omissions
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(a “Corrected Prospectus”) and “Time of Sale” will refer to the date on which the new
Contracts of Sale were entered into.
Section 2. Representations, Warranties and Covenants of the Depositor and GECC.
(a) The Depositor represents and warrants to and agrees with each Underwriter 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, the Prospectus and the Ratings FWP (as defined
below), 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 those 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) (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 (the “Rules and Regulations”) and of the Trust Indenture Act
of 1939; (B) 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; (C) the
Registration Statement, at the Effective Time, did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and (D) the Prospectus, as of its date, and
as of the Closing Date (as 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 below); provided, further, that this paragraph
(z) makes no representation and warranty as to the Time of Sale Information which is
covered by paragraph (aa) below.
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(aa) The Time of Sale Information 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) Other than with respect to the Preliminary Prospectus, the Prospectus and the
Permitted Additional Information (as defined below) and the other information permitted in
Section 8(b), 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 as of the Closing
Date, 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 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 this Underwriting Agreement and the Related Documents 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, as applicable, and assuming due authorization, execution and
delivery thereof by the other parties thereto, each of this Underwriting Agreement and the
Related Documents constitutes, or will constitute on the Closing Date, the valid, legal and
binding obligation of each of the Company and the Depositor, respectively, enforceable
against each of the Company and the Depositor, as applicable, in accordance with their
respective 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.
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(v) The Offered Notes will conform in all material respects 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 Indenture,
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, or the operations of the Depositor or the Company, as applicable, or
on the performance by the Depositor or the Company, as 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 as of the
Closing Date, all material licenses, certificates, authorities or permits issued by the
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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).
(xiv) GECC has executed and delivered a written representation (the “17g-5
Representation”) to each “nationally recognized statistical rating organization” (within
the meaning of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) hired
to rate the Offered Notes (each, a “Rating Agency”) which satisfies the requirements
of paragraph (a)(3)(iii) of Rule 17g-5 (“Rule 17g-5”) of the Exchange Act. GECC has
complied and will comply, and has caused and will cause the Depositor to comply, in all
material respects, with the 17g-5 Representation other than any breach of the 17g-5
Representation arising from any breach by any Underwriter of the representation, warranty
and covenant set forth in Section 9(e) hereof.
(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 incorporation 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.
(ii) GECC has, and will have as of the Closing Date, the requisite power to execute and
deliver this Underwriting Agreement and the Related Documents 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.
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(iii) Each of this Underwriting Agreement and the Related Documents 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 of 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 as of the closing date, 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 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.
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(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 June 29, 2011, 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 of the Offered Notes made by it 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 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
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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 take such actions as may be reasonably requested by the Underwriters
to qualify the Offered Notes for sale under the laws of such jurisdictions as the Underwriters may
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.
(d) 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.
(e) 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
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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.
(f) 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
Prospectus and of the Prospectus 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 reasonable out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the Underwriters.
(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
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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
obligations of the Underwriters to purchase and pay for the Offered Notes on the Closing Date are
subject to the accuracy of the representations and warranties 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 their respective 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
(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
11
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 and the Depositor, an opinion, dated the Closing Date, addressed to the
Underwriters and satisfactory in form and substance to the Underwriters and to counsel to the
Underwriters, relating to certain corporate, securities law and security interests matters.
(e) The Representative shall have received from counsel (who shall be satisfactory to the
Representative) for GECC and the Depositor, a signed negative assurance letter, dated the Closing
Date, addressed to the Underwriters and satisfactory in form and substance to the Underwriters and
to counsel to the Underwriters, relating to certain matters with respect to the Registration
Statement, the Preliminary Prospectus and the Prospectus.
(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 Underwriters and to counsel to the
Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(g) 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 Underwriters and to counsel to the Underwriters.
(h) Counsel to GECC and the Depositor shall have furnished to the Representative any opinions
(if any) supplied to the rating agencies relating to certain matters with respect to the Notes,
which opinions shall also be addressed to the Underwriters.
(i) The Representative shall have received (i) a letter, dated June 14, 2011, relating to the
Preliminary Prospectus and (ii) a letter, dated June 22, 2011, 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 Underwriters and counsel to the
Underwriters.
(j) All documents incident to the Related Documents and this Underwriting Agreement shall be
reasonably satisfactory in form and substance to the Representative and
12
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.
(k) The Offered Notes shall have received the ratings specified in the final Ratings FWP (as
defined below).
(l) The Representative shall have received from Xxxxxxx XxXxxxxxx LLP, counsel to the
Underwriters, a signed negative assurance letter, dated the Closing Date, addressed to the
Underwriters and satisfactory in form and substance to the Underwriters, relating to the
Registration Statement, the Preliminary Prospectus and the Prospectus.
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
any 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) any Permitted Additional
Information, or are caused by the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and will reimburse each Underwriter 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
(or any person controlling 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);
provided, however, that (i) neither of the Depositor nor 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, regarding, among other things, stabilization, under “Underwriting” in the
Prospectus Supplement in reliance 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
13
(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 and the Ratings FWP. 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 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
14
(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 prior 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 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
15
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 an 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 the free writing prospectus, dated June 14,
2011, with respect to the ratings of the Offered Notes and the free writing prospectus, dated June
22, 2011 with respect to the ratings of the Offered Notes (together, the “Ratings FWP”) and
the information that is included in any road show presentation the Company, the Depositor or GECC
has approved (each, a “Road Show”) and Intex.cdi files containing data derived from
information available in the Prospectus.
(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 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
16
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; provided that, in the case of the
communications containing information described in clauses (i), (ii) and (iii) of the immediately
preceding sentence, such communications 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 (which notice may be provided by
email or substantially in the form of Exhibit A hereto) 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 such Underwriter
is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with
17
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, 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 based on the information
contained in the Corrected Prospectus.
Any costs or losses incurred in connection with any such termination or reformation shall be
subject to Section 7.
(e) Each Underwriter, severally and not jointly, represents to and agrees that it has not
provided and will not provide, without the prior written consent of GECC (which consent may be
provided in the form of an email), any Rating Information to a Rating Agency or other “nationally
recognized statistical rating organization” (within the meaning of the Exchange Act) (“NRSRO”);
provided, for the avoidance of doubt, that if an Underwriter receives an oral communication from a
Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to
the oral communication with a designated representative from GECC or refer such Rating Agency to
GECC, who will respond to the oral communication. For the purposes of this paragraph, “Rating
Information” means any information, written or oral, relating to the Company, the Notes, the
Loans, the transactions contemplated by this Agreement or any other information that could be
reasonably determined to be relevant to determining the initial credit rating for the Notes,
including information about the characteristics of the
18
receivables and the legal structure of the Notes and undertaking credit rating surveillance on the
Notes (as contemplated by Rule 17g-5(a)(iii)(3)(c)).
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.
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.
19
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:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxx Xxxxxx Xxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000;
Xxx Xxxxxx Xxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000;
with a copy to:
Xxxxxxx XxXxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000;
000 Xxxx Xxxxxx
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 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Capital Markets Operations
Telephone: (000) 000-0000
Facsimile: (000) 000-0000;
00 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Capital Markets Operations
Telephone: (000) 000-0000
Facsimile: (000) 000-0000;
20
with a copy to:
Xxxxx Xxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000;
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000;
(iii) if sent to GECC, will be mailed, delivered or sent by facsimile transmission, and
confirmed to it at:
General Electric Capital Corporation
000 Xxxxxxx 0
Xxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000;
000 Xxxxxxx 0
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
21
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
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. Each of GECC and the Depositor
acknowledge and agree that the Underwriters are acting solely in the capacity of arm’s length
contractual counterparties to GECC and the Depositor with respect to the offering of Notes
contemplated hereby (including in connection with determining the terms of the offering) and not as
a financial advisor or a fiduciary to, or an agent of, GECC, the Depositor, the Company or any
other person. Additionally, none of the Underwriters is advising GECC, the Depositor, the Company
or any other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. GECC and the Depositor shall consult with their own advisors concerning such matters
and shall be responsible for making their own independent investigation and appraisal of the
transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to
GECC, the Depositor or the Company with respect thereto. Any review by the Underwriters of GECC,
the Depositor, the Company, the transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the Underwriters and shall not be on
behalf of GECC, the Depositor, the Company or any other party.
22
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: | /s/ | |||
Name: | Xxxxxx X. Xxxxxxxx | |||
Title: | Senior Vice President — Securitization | |||
GENERAL ELECTRIC CAPITAL CORPORATION |
||||
By: | /s/ | |||
Name: | Xxxxxx X. Xxxxxxxx | |||
Title: | Senior Vice President — Securitization | |||
Accepted and agreed in New York, New York, as of the date hereof: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED |
||||
By: | /s/ | |||
Name: | Xxxxxxxx Xxxxxxx | |||
Title: | Director | |||
Acting on behalf of itself and, if applicable,
as the Representative of the Underwriters.
as the Representative of the Underwriters.
Schedule I
Approximate | ||||||||||||||||
Amount | Approximate | |||||||||||||||
Purchased by | Amount | |||||||||||||||
Initial | Purchase | Xxxxxxx Lynch, Pierce, | Purchased by | |||||||||||||
Principal | Price | Xxxxxx & Xxxxx | Citigroup Global | |||||||||||||
Class | Amount | Percentage | Incorporated | Markets Inc. | ||||||||||||
Class A-1 |
$ | 213,000,000 | 99.88400 | % | $ | 123,540,000 | $ | 63,900,000 | ||||||||
Class A-2 |
$ | 165,970,000 | 99.76601 | % | $ | 96,262,600 | $ | 49,791,000 | ||||||||
Class A-3 |
$ | 177,360,000 | 99.68427 | % | $ | 102,868,800 | $ | 53,208,000 | ||||||||
Class A-4 |
$ | 59,520,000 | 99.65909 | % | 34,521,600 | $ | 17,856,000 | |||||||||
Total |
$ | 691,858,000 |
Approximate | ||||||||||||||||
Amount | Approximate | |||||||||||||||
Initial | Purchase | Purchased by | Amount | |||||||||||||
Principal | Price | CastleOak | Purchased by | |||||||||||||
Class | Amount | Percentage | Securities, L.P. | RBS Securities Inc. | ||||||||||||
Class A-1 |
$ | 213,000,000 | 99.88400 | % | $ | 12,780,000 | $ | 12,780,000 | ||||||||
Class A-2 |
$ | 165,970,000 | 99.76601 | % | $ | 9,958,200 | $ | 9,958,200 | ||||||||
Class A-3 |
$ | 177,360,000 | 99.68427 | % | $ | 10,641,600 | $ | 10,641,600 | ||||||||
Class A-4 |
$ | 59,520,000 | 99.65909 | % | $ | 3,571,200 | $ | 3,571,200 | ||||||||
Total |
$ | 691,858,000 |
Total Purchase Price: $615,806,466.74
1
EXHIBIT A
FORM OF NOTICE PURSUANT TO SECTION 9(B)
Date: ___________, _____
[Time]: _____ [a.m.] [p.m.]
To: | General Electric Capital Corporation CEF Equipment Holding, L.L.C. |
|
Re: | GE Equipment Transportation LLC, Series 2011-1 |
Ladies and Gentlemen:
This notice is made and delivered pursuant to Section 9(b) of that certain
Underwriting Agreement, dated as of June 22, 2011 (the “Underwriting Agreement”), by and
among General Electric Capital Corporation (“GECC”), CEF Equipment Holding, L.L.C. (the
“Depositor”) and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, acting on behalf of
itself and as the representative of the several underwriters listed on Schedule I thereto (in such
capacity, the “Representative”). All capitalized terms used in this notice and not
otherwise defined herein shall have the meanings assigned to them in the Underwriting Agreement.
The Underwriter named below hereby notifies GECC and the Depositor that [the date hereof is
the date on which the Preliminary Prospectus was first used] [and] [the time hereof is the time at
which the first Contract of Sale has been entered into in connection with the Preliminary
Prospectus].
[______________________], as Underwriter |
||||
By: | ||||
Title: | ||||
2