EXECUTION COPY
GE EQUIPMENT MIDTICKET LLC, SERIES 2007-1
Asset Backed Notes
UNDERWRITING AGREEMENT
November 9, 2007
MORGAN STANLEY & 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")
1585 Broadway
New York, New York 10036
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
5
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.
6
(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
7
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 Mayer Brown
LLP, 1675 Broadway, New York, New York 10019 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
8
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 require
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