EXHIBIT 1(a)
EXECUTION COPY
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES 2004-1
Asset Backed Notes
UNDERWRITING AGREEMENT
November 9, 2004
DEUTSCHE BANK SECURITIES INC.
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")
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Section 1. Introductory. GE Commercial Equipment Financing LLC, Series
2004-1 (the "Company"), CEF Equipment Holding, L.L.C. ("CEFEH" or the "Seller")
and General Electric Capital Corporation ("GECC") and General Electric Credit
Corporation of Tennessee ("GECC Tennessee" and together with GECC, the
"Originators") propose to cause the sale of the GE Commercial Equipment
Financing LLC, Series 2004-1 Asset Backed Notes, consisting of the Class A-1
Notes (the "Class A-1 Notes"), the Class A-2 Notes (the "Class A-2 Notes"), the
Class A-3 Notes (the "Class A-3 Notes"), the Class A-4 Notes (the "Class A-4
Notes"), the Class B Notes (the "Class B Notes") and the Class C Notes (the
"Class C Notes" and together with the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes and the Class B Notes, the "Notes"). The
Notes will be issued pursuant to an Indenture, dated as of November 16, 2004
(the "Indenture"), between the Company, and JPMorgan Chase Bank, as indenture
trustee (the "Indenture Trustee"). The Notes will be issued in an aggregate
initial principal amount of $840,347,000. The 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, technology and
telecommunications equipment, furniture and fixtures, medical and dental
equipment, 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 16, 2004 (the
"Interest Rate Swap Agreement"), between General Electric Capital Services, Inc.
("GECS" and the "Swap Counterparty"). Pursuant to a Loan Sale Agreement, dated
as of November 16, 2004 (the "Loan Sale Agreement"), among CEFEH, GECC and GECC
Tennessee, GECC and GECC Tennessee will sell the Loans to CEFEH. Pursuant to a
Loan Purchase and Sale Agreement, dated as of November 16, 2004 (the "Loan
Purchase and Sale Agreement") between CEFEH and the Company, CEFEH 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 16, 2004 (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 the then applicable LIBOR minus
0.04% per annum, the Class A-2 Notes shall bear interest at the then applicable
LIBOR plus 0.01% per annum, the Class A-3 Notes shall bear interest at the then
applicable LIBOR plus 0.02% per annum, the Class A-4 Notes shall bear interest
at the then applicable LIBOR plus 0.06% per annum, the Class B Notes shall bear
interest at the then applicable LIBOR plus 0.20% per annum and the Class C Notes
shall bear interest at the then applicable LIBOR plus 0.60% per annum.
Section 2. Representations, Warranties and Covenants of the Seller and
GECC.
(a) The Seller represents and warrants to the Underwriters, as of the
date hereof, that:
(i) The registration statement on Form S-3 (No. 333-118560),
including a prospectus and any supplements or amendments thereto, has been
filed with the Securities and Exchange Commission (the "Commission") for
registration under the Securities Act of 1933, as amended (the "Act"), of
the Notes, which registration statement has been declared effective by the
Commission. Such registration statement, as supplemented or amended to the
date hereof, including any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the effective date of the registration statement (as such date is
defined in Rule 158(c) under the Act, the "Effective Date"), is
hereinafter called the "Registration Statement," and such prospectus dated
September 13, 2004 as such prospectus is supplemented or amended by a
prospectus supplement relating to the Notes of the related Series, each in
the form first filed after the date hereof pursuant to Rule 424(b) under
the Act, including any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act which were filed under the
Exchange Act on or before the date of such prospectus supplement (such
prospectus supplement dated November 9, 2004, including such incorporated
documents, in the form first filed after the date hereof pursuant to Rule
424(b) is hereinafter called the "Prospectus Supplement) is hereinafter
called the "Base Prospectus" and together with the Prospectus Supplement,
the "Prospectus" (except where the context requires otherwise). Any
reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, the Prospectus or the Prospectus
Supplement, shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date or the issue date
of the Prospectus or Prospectus Supplement, as the case may be, deemed to
be incorporated therein by reference pursuant to Item 12 of Form S-3 under
the Act.
(ii) The Registration Statement, at the time it became effective,
and the prospectus contained therein, and any amendments thereof and
supplements thereto filed prior to the date hereof, conformed in all
material respects to the requirements of the Act
2
and the rules and regulations of the Commission thereunder (the "Rules and
Regulations"); on the date hereof and on the Closing Date, the
Registration Statement and the Prospectus, and any amendments thereof and
supplements thereto, will conform in all material respects to the
requirements of the Act and the Rules and Regulations; such Registration
Statement, at the time it became effective, 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; such Prospectus and Prospectus Supplement, on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, will not include
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading; provided,
however, that the Seller does not make any representations or warranties
as to the information contained in or omitted from such Registration
Statement or such Prospectus (or any supplement thereto) in reliance upon
and in conformity with written information furnished to the Seller by or
on behalf of the Underwriters specifically for use in the preparation
thereof which information consists of the Underwriters' Information (as
defined herein).
(iii) The Seller 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 Seller 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.
(iv) Each of the Company and the Seller 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 in connection with the issuance and
sale of the Notes and this Underwriting Agreement and to perform their
respective obligations hereunder and thereunder.
(v) 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 Seller, 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 Seller, enforceable
against each of the Company and the Seller 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 Agreement that purport to provide indemnification for securities laws
liabilities.
(vi) When the 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.
3
(vii) Neither the execution and delivery by the Company or the
Seller of any Related Document or this Underwriting Agreement to which it
is a party nor the consummation by the Company or the Seller of the
transactions contemplated herein or therein, nor the issuance of the Notes
by the Company or 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 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 Seller (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 Seller 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 Seller.
(viii) Other than as set forth in or contemplated by the Prospectus,
there are no legal or governmental proceedings pending to which the Seller
or the Company is a party or of which any property or assets of the Seller
or the Company are the subject of which, if determined adversely to the
Seller 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 Seller or the
Company, as applicable, or on the performance by the Seller 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 Seller
and the Company, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(ix) 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 Seller of any Related
Document or this Underwriting Agreement to which it is a party or the
performance by the Company or the Seller under any Related Document or
this Underwriting Agreement to which it is a party or (ii) the offer, sale
or delivery of the 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 Seller to perform its obligations under any Related
Document or this Underwriting Agreement.
(x) Each of the Company and the Seller 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 Prospectus and Prospectus Supplement, except to the
extent that the failure to have such licenses, certificates, authorities
or permits does not have a material adverse effect on the Notes or the
financial condition of the Company or the Seller, and neither the Company
nor the Seller has received, nor will have received as of the Closing
Date, any notice of proceedings relating to the revocation or
4
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
(xi) Each of the representations and warranties of the Seller and
the Company set forth in each Related Document is true and correct in all
material respects.
(xii) Neither the Seller nor the Company is now, and following the
issuance of the Notes, neither the Seller nor the Company will be, an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended.
(xiii) The Indenture has been qualified under the Trust Indenture
Act of 1939, as amended.
(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 Tennessee is a
corporation, duly formed, validly existing and in good standing under the
laws of its state of formation, and each of GECC and GEC Tennessee 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) Each of GECC and GECC Tennessee 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
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 GECC Tennessee, as applicable, 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 GECC and GECC Tennessee,
enforceable against GECC and GECC Tennessee, as applicable, 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 Agreement that purport to provide indemnification for securities laws
liabilities.
(iv) Neither the execution and delivery by GECC or GECC Tennessee
of any Related Document or this Underwriting Agreement to which it is a
party nor the consummation by GECC or GECC Tennessee 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,
5
or result in the imposition of any Liens upon any of the property or
assets of GECC or GECC Tennessee (except as required or permitted pursuant
thereto or hereto), pursuant to any material mortgage, indenture, loan
agreement, contract or other instrument to which GECC or GECC Tennessee 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 or the articles on
incorporation or the by-laws of GECC or GECC Tennessee.
(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 or GECC Tennessee of any Related Document
or this Underwriting Agreement to which it is a party or the performance
by GECC or GECC Tennessee under any Related Document or this Underwriting
Agreement to which it is a party or (ii) the offer, sale or delivery of
the 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
or GECC Tennessee to perform its obligations under any Related Document or
this Underwriting Agreement.
(vi) Each of GECC and GECC Tennessee 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 Prospectus and Prospectus Supplement, except to the extent that the
failure to have such licenses, certificates, authorities or permits does
not have a material adverse effect on the Notes or the financial condition
of GECC or GECC Tennessee, and neither GECC not GECC Tennessee 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
(vii) Each of the representations and warranties of GECC and GECC
Tennessee 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 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 Seller agrees to sell to each Underwriter, severally
and not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Seller, the respective original principal amounts of the Notes
set forth in Schedule I hereto opposite the name of such Underwriter, plus any
additional original principal amount of Notes which such Underwriter may be
obligated to purchase pursuant to Section 10 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 Seller (or paid by such other manner as may
be agreed upon by the Seller and the Representative), the Seller will deliver
the Notes to the Underwriters at the
6
offices of Xxxxx, Xxxxx Xxxx & Maw LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
on November 16, 2004, or at such other place and time as the Representative and
the Seller shall agree upon, each such time being herein referred to as a
"Closing Date." The Notes will initially be maintained through the facilities of
The Depository Trust Company, as indicated in the Prospectus Supplement.
Section 4. Public Offering of Notes. It is understood by the parties
hereto that the Underwriters propose to offer the Notes for sale to the public
(which may include selected dealers), as set forth in the Prospectus.
Section 5. Covenants of the Seller. The Seller covenants and agrees with
each Underwriter:
(a) The Seller 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 Notes are to be purchased by the Underwriters
from the Seller, either the initial public offering price or the method by which
the price at which the Notes are to be sold will be determined, the selling
concessions and reallowances, if any, and such other information as the
Representative and the Seller deem appropriate in connection with the offering
of the Notes; provided, however, that each of the Company and the Seller shall
make no amendment or supplement to the Registration Statement affecting or
relating to any material extent to the Notes, and shall make no amendment or
supplement to the Prospectus or the Prospectus Supplement relating to the 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 Seller 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 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 Notes or suspending any such
qualification, promptly shall use its best efforts to obtain its withdrawal.
(b) The Seller shall endeavor to arrange for the qualification of the
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 Notes; provided, however, that the Seller
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 Seller 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
7
reasonably request; and, if the delivery of a Prospectus shall be at the time
required by law in connection with sales of the 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 Seller 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
Seller shall not effect any such amendment without the consent of the
Representative.
(d) The Seller 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
Notes pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(e) So long as any of the Notes are outstanding, the Seller shall furnish
each Underwriter copies of all reports or other communications (financial or
other) furnished to holders of such Notes, and deliver to the Underwriters
during such same period (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the Commission and (ii) such
additional information concerning the business and financial condition of the
Seller as such Underwriter may from time to time reasonably request.
(f) The Seller 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 Notes
to the Underwriters;
(iv) the fees and disbursements of counsel and accountants for
GECC, GECC Tennessee and/or the Seller;
(v) the qualification of the 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;
8
(vi) if requested by the Representative, the determination of the
eligibility of the Notes for investment and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and
in connection with the preparation of a legal investment memorandum;
(vii) the printing and delivery to the Underwriters of copies of the
preliminary prospectuses, and of the Prospectus and Prospectus Supplement
and any amendments or supplements thereto;
(viii) the fees of the rating agencies rating the Notes; and
(ix) the fees and expenses of the Indenture Trustee and its
counsel.
If the sale of the Notes is not consummated by reason of any failure,
refusal or inability on the part of GECC, GECC Tennessee or the Seller 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 Seller shall be obligated to reimburse the Underwriters for
all out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
(g) So long as the Notes are outstanding, or until such time as each
Underwriter shall cease to maintain a secondary market in such Notes, whichever
occurs first, the Seller shall deliver to each Underwriter all statements and
reports furnished to the Indenture Trustee pursuant the Related Documents, as
soon as such statements and reports are furnished to the Indenture Trustee.
Section 6. Conditions Precedent to the Obligations of the Underwriters.
The obligation of the Underwriters to purchase and pay for the Notes is subject
to the accuracy of the representations and warranties on the part of GECC and
the Seller 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, GECC Tennessee and the Seller made pursuant to the provisions hereof, to
the performance by each of GECC, GECC Tennessee and the Seller of its
obligations hereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later
than 4:00 p.m., New York time, on the day following the date of this
Underwriting Agreement or such later date as shall have been consented to by the
Representative; and prior to the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
GECC or the Seller, shall be contemplated by the Commission.
(b) Each of GECC, GECC Tennessee and the Seller 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, GECC Tennessee or the
Seller, 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 Prospectus, each Related Document and this
Underwriting Agreement and that:
9
(i) to the best of such person's knowledge, the representations
and warranties of GECC, GECC Tennessee and/or the Seller, 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, GECC Tennessee and the Seller, 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 Seller'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, contains any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the
Prospectus and Prospectus Supplement, there shall not have occurred any material
adverse change or any development involving a prospective material adverse
change in or affecting particularly the business or assets of the Company, the
Seller, or any material adverse change in the financial position or results or
operations of the Company, the Seller, GECC or GECC Tennessee 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 Notes so as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the 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, GECC Tennessee, GECS and the
Seller, an opinion, dated the Closing Date, addressed to the Underwriters and
satisfactory in form and substance to the Representative and to counsel to the
Underwriters, relating to certain corporate, securities law and security
interests matters.
(e) [Reserved].
(f) The Representative shall have received from counsel (who shall be
satisfactory to the Representative) for GECC, GECC Tennessee and the Seller, an
opinion, dated the Closing Date, addressed to the Underwriters and satisfactory
in form and substance to the Representative and to counsel to the Underwriters,
relating to certain insolvency and bankruptcy matters and federal income tax
matters.
(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
10
Closing Date, addressed to the Underwriters, GECC and the Seller and
satisfactory in form and substance to the Representative and to counsel to the
Underwriters.
(h) Counsel to GECC and the Seller shall have furnished to the
Representative any opinions supplied to the rating agencies relating to certain
matters with respect to the Notes, which opinions shall also be addressed to the
Underwriters.
(i) The Representative shall have received a letter, dated the Closing
Date and addressed to the Underwriters, from certified public accountants (who
shall be satisfactory to the Representative), substantially in the form approved
by the Representative and counsel to the Underwriters.
(j) All documents incident to the Related Documents and this
Underwriting Agreement shall be reasonably satisfactory in form and substance to
the Representative and counsel to the Underwriters; and GECC, GECC Tennessee
and/or the Seller 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 Class A-1 Notes shall have been rated no less than "P1" by
Xxxxx'x Investors Services, Inc. ("Moody's"), "A-1+" by Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P") and
"F-1+" by Fitch, Inc. ("Fitch"), each of the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes shall have each been rated no less than "Aaa" by
Moody's and "AAA" by S&P and Fitch, the Class B Notes shall have been rated no
less than "A3" by Xxxxx'x and "A" by S&P and Fitch and the Class C Notes shall
have been rated investment grade by at least two nationally recognized rating
agencies, such ratings shall not have been rescinded, and no public announcement
shall have been made by the respective rating agencies that the rating of the
Notes have been placed under review.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Underwriting Agreement may be
terminated by the Representative by notice to the Seller 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 5 hereof.
Section 7. Indemnification and Contribution. (a) The Seller and GECC,
jointly and severally, agree to indemnify and hold harmless each Underwriter and
each person who controls the Underwriter within the meaning of the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act, or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement relating to the Notes as it became effective or in any amendment or
supplement thereof, or in such Registration Statement or the Prospectus, or in
any amendment thereof 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 for any legal or other
expenses (except where the Underwriter is required to bear such expenses
pursuant to Section 7(c)) reasonably incurred by such Underwriter in connection
11
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, to the extent that the indemnifying party
believes that it will be ultimately obligated to pay such expenses; provided,
however, that (i) none of the Seller or GECC will be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made under the second and fourth paragraphs under
"Underwriting" in the Prospectus Supplement in reliance upon and in conformity
with written information furnished to the Seller 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 Notes that are the
subject thereof if such person was not sent or did not receive a copy of a
supplement to such Prospectus at or prior to the confirmation of the initial
sale of such Notes and the untrue statement or omission of a material fact
contained in such Prospectus (or supplement thereto) was corrected (a "Corrected
Statement") in such supplement and such supplement was furnished by the Seller
or GECC to the Underwriter prior to the mailing or sending of such confirmation.
This indemnity agreement will be in addition to any liability which the Seller
or GECC may otherwise have.
(b) Each Underwriter severally, and not jointly, agrees to indemnify and
hold harmless the Seller, GECC, each of their respective directors and officers
who signed the Registration Statement relating to the Notes, and each person who
controls the Seller or GECC within the meaning of the Act or the Exchange Act to
the same extent as the foregoing indemnities from the Seller and GECC to the
Underwriter, but only in the Underwriter Information. 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
12
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 (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). Unless it shall assume the defense of
any proceeding, the indemnifying party shall not be liable for any settlement of
any proceeding, effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 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 Seller and GECC on the one hand and the Underwriters on the other from
the offering of the 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 Seller 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 Seller 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 Seller 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 Seller 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
13
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 Seller, GECC and the Underwriters agree that it would not be
just and equitable if contribution pursuant to Section 7(d) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the considerations referred to above. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 7(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim except where the indemnified party is required to bear such
expenses pursuant to Section 7(c); which expenses the indemnifying party shall
pay and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party believes that it will be ultimately obligated to pay
such expenses. In the event that any expenses so paid by the indemnifying party
are subsequently determined to not be required to be borne by the indemnifying
party hereunder, the party which received such payment shall promptly refund the
amount so paid to the party which made such payment.
Notwithstanding anything to the contrary in Section 7(d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of Section 7(d), each person who
controls the Underwriter within the meaning of either the Act or the Exchange
Act shall have the same rights to contribution as the Underwriter, and each
person who controls the Seller or GECC within the meaning of either the Act or
the Exchange Act, each officer of the Seller or GECC who shall have signed the
Registration Statement and each director of the Seller or GECC shall have the
same rights to contribution as the Seller or GECC, as applicable, subject in
each case to the immediately preceding sentence of this paragraph.
Section 8. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representative, by notice given to the Seller
prior to delivery of and payment for the 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 Notes
or to enforce contracts for the sale of the 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 9. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
each of GECC, the Seller or their
14
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 Seller or any of their respective
representatives, officers, managers or directors of any controlling person, and
will survive delivery of and payment for the Notes. Notwithstanding anything to
the contrary herein, the provisions of Section 7 hereof shall survive the
termination or cancellation of this Underwriting Agreement.
Section 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail on the Closing Date to purchase the 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 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 Notes to be purchased pursuant to this Underwriting
Agreement, this Underwriting Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 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 Seller 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 11. 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:
15
Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: XX Xxxxxxx
Telephone: (000) 000-0000;
with a copy to:
XxXxx Xxxxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000;
(ii) if sent to the Seller, will be mailed, delivered or sent by
facsimile transmission, and confirmed to it at:
CEF Equipment Holding, LLC
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Capital Markets Operations
Telephone: (000) 000-0000
Facsimile: (000) 000-0000;
with a copy to:
Xxxxx, Xxxxx Xxxx & Maw LLP
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
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000;
or to such other address as GECC, the Seller or the Representative may designate
in writing to the other parties hereto.
16
Section 12. Successors. This Underwriting Agreement will inure to the
benefit of and be binding upon the Underwriters, GECC and the Seller 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 13. 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 ANY TERMS 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 14. 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 Seller or the
Company to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Seller 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 Seller or the Company or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Seller
or the Company.
Section 15. 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.
17
EXECUTION COPY
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 Seller
and GECC.
Very truly yours,
CEF EQUIPMENT HOLDING, L.L.C.
By: _______________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By: _______________________________________
Name:
Title:
Accepted and agreed in New York, New York,
as of the date hereof:
DEUTSCHE BANK SECURITIES INC.
By: _______________________________________
Name:
Title:
By: _______________________________________
Name:
Title:
Acting on behalf of itself and, if applicable,
as the Representative of the Underwriters.
18
EXECUTION COPY
Schedule I
Approximate
Approximate Amount
Approximate Amount Approximate Purchased by Approximate
Amount Purchased by Amount Xxxxxxx Xxxxx, Amount
Initial Purchase Purchased by Xxxxxx Xxxxxxx Purchased by Xxxxxx, Xxxxxx Purchased by
Principal Price Deutsche Bank & Co. Xxxxxx & Xxxxx UBS Securities
Class Amount Percentage Securities Inc Incorporated Brothers Inc. Incorporated LLC
--------- ------------ ---------- -------------- -------------- ------------- -------------- --------------
Class A-1 $203,000,000 99.90000% $59,800,000 $59,800,000 $27,800,000 $27,800,000 $ 27,800,000
Class A-2 $152,000,000 99.87500% $41,950,000 $41,950,000 $22,700,000 $22,700,000 $ 22,700,000
Class A-3 $279,000,000 99.85000% $78,900,000 $78,900,000 $40,400,000 $40,400,000 $ 40,400,000
Class A-4 $126,514,000 99.82000% $35,280,500 $35,280,500 $18,651,000 $18,651,000 $ 18,651,000
Class B $ 54,623,000 99.75000% $27,311,500 $27,311,500 N/A N/A N/A
Class C $ 25,210,000 99.65000% $12,605,000 $12,605,000 N/A N/A N/A
Total $840,347,000
Total Purchase Price: $839,082,982.30
