Exhibit 1(a)
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES 2003-1
Asset Backed Notes
UNDERWRITING AGREEMENT
September 19, 2003
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")
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Section 1. Introductory. GE Commercial Equipment Financing LLC, Series
2003-1 (the "Company"), CEF Equipment Holding, L.L.C. ("CEFEH" or the "Seller")
and General Electric Capital Corporation ("GECC" or the "Originator") propose to
cause the sale of the GE Commercial Equipment Financing LLC, Series 2003-1 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"), Class B Notes (the "Class
B Notes" and together with the Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes and the Class A-4 Notes, the "Notes"). The Notes will be issued
pursuant to an Indenture, dated as of August 2, 2003 (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
$376,946,000. 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, furniture and fixtures,
construction equipment, technology and telecommunications equipment, maritime
assets or other equipment and the related security interests in the equipment
financed thereby (collectively, the "Loans"), certain rights under the Interest
Rate Swap Agreement, to be dated September 19, 2003 (the "DB Interest Rate Swap
Agreement"), between Deutsche Bank AG, New York Branch (the "DB Swap
Counterparty") and the Company, certain rights under the Interest Rate Swap
Agreement, to be dated September 19, 2003 (the "GECS Interest Rate Swap
Agreement"), between General Electric Capital Services, Inc. ("GECS" and the
"GECS Swap Counterparty" and together with the DB Swap Counterparty, the "Swap
Counterparties") and the Company, certain rights under a Variable Funding
Certificate to be dated September 25, 2003 (the "GECS Variable Funding
Certificate") issued by GECS in favor of the Seller and certain rights under a
Variable Funding Certificate to be dated September 25, 2003 (the "Seller
Variable Funding Certificate") issued by the Seller in favor of the Company.
Pursuant to a Loan Sale
Agreement, dated as of September 25, 2003 (the "Loan Sale Agreement"), between
CEFEH and GECC, GECC will sell the Loans to CEFEH. Pursuant to a Loan Purchase
and Sale Agreement, dated as of September 25, 2003 (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 September 25, 2003
(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 0.07% per annum, the Class A-3 Notes shall bear interest
at the then applicable LIBOR plus 0.09% per annum, the Class A-4 Notes shall
bear interest at the then applicable LIBOR plus 0.12% per annum and the Class B
Notes shall bear interest at the then applicable LIBOR plus 0.43% per annum.
Section 2. Representations, Warranties and Covenants of GECC and the
Seller. Each of GECC and the Seller, as applicable, represents and warrants to,
and agrees with, each Underwriter, as of the date hereof, that:
(a) The registration statement on Form S-3 (No. 333-99053),
including a prospectus and any 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 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 17, 2003 as such prospectus is supplemented 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 September 19, 2003, 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.
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(b) 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 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 neither GECC nor the Seller makes 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).
(c) GECC is a corporation duly incorporated, validly existing and
in good standing under the laws of the state of its incorporation, the Seller is
a limited liability company duly formed, validly existing and in good standing
under the laws of its state of formation, and each of GECC and the Seller is
duly qualified to transact business and is in good standing in each jurisdiction
in the United States of America in which the conduct of its business or the
ownership of its property requires such qualification, with power to own, lease
and operate its property and conduct its business as it is currently conducted.
(d) Each of GECC and the Seller has, and will have, the requisite
power to execute and deliver the Related Documents 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.
(e) Each of the Related Documents and this Underwriting Agreement
has been, or will be, duly and validly authorized, executed and delivered by
each of GECC 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 GECC and the Seller,
enforceable against each of GECC 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.
(f) 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.
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(g) Neither the execution and delivery by GECC or the Seller of
any Related Document or this Underwriting Agreement nor the consummation by GECC
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 GECC 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 GECC 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 incorporation or by-laws of
GECC or the certificate of formation or limited liability company agreement of
the Seller.
(h) Other than as set forth in or contemplated by the Prospectus,
there are no legal or governmental proceedings pending to which the Seller or
GECC is a party or of which any property or assets of the Seller or GECC are the
subject of which, if determined adversely to the Seller or GECC, 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
GECC or on the performance by the Seller or GECC of its obligations hereunder or
under the Related Documents; and, to the best knowledge of each of the Seller
and GECC, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(i) 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 the Seller of any Related Document, or this Underwriting
Agreement or the performance by GECC or the Seller of any Related Document or
this Underwriting Agreement 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 the Seller to perform its
obligations under any Related Document or this Underwriting Agreement.
(j) Each of GECC 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 GECC or the Seller, and
neither GECC nor the Seller 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.
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(k) 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.
(l) The Indenture has been qualified under the Trust Indenture Act
of 1939, as amended.
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 II
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 offices of ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ &
Maw LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on September 25, 2003, 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 GECC and the Seller. Each of GECC and the
Seller, jointly and severally, 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 GECC 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
GECC 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
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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) Each of the Seller and GECC 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 neither the Seller nor GECC shall 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) To 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
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) To 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, to furnish each
Underwriter copies of all reports or other communications (financial or other)
furnished to holders of such Notes, and to 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) To 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:
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(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 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;
(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 the 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 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), each of
GECC and the Seller shall jointly and severally 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, to 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 and the Seller made pursuant to the provisions hereof, to the
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performance by each of GECC 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 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 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:
(i) to the best of such person's knowledge, the
representations and warranties of GECC 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 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 Prospectus 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 or GECC otherwise than as set
forth or contemplated in the Prospectus, 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, GECS and the Seller, an
opinion, dated the Closing Date,
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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) The Representative shall have received from counsel (who shall
be satisfactory to the Representative) for the DB Swap Counterparty, an opinion,
dated the Closing Date and satisfactory in form and substance to the
Representative and to counsel to the Underwriters.
(f) The Representative shall have received from counsel (who shall
be satisfactory to the Representative) with respect to the GECS Variable Funding
Certificate and the Seller Variable Funding Certificate, an opinion, dated the
Closing Date and satisfactory in form and substance to the Representative and to
counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall
be satisfactory to the Representative) for GECC 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.
(h) 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 Seller and satisfactory in form and substance to the
Representative and to counsel to the Underwriters.
(i) 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.
(j) 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.
(k) All documents incident to the Related Documents and this
Underwriting Agreement shall be reasonably satisfactory in form and substance to
the Representative and counsel to the Underwriters; and GECC and/or the 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.
(l) The Class A-1 Notes shall have been rated no less than "P1" by
▇▇▇▇▇'▇ Investors Services, Inc. ("Moody's"), "A-1+" by Standard & Poor's
Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ 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, and the Class B Notes shall have been rated
no less than "A3" by Moody's and "A" by S&P and Fitch, such ratings shall not
have been rescinded, and no public announcement shall have been made by the
respective rating agencies that the rating of the Notes have been placed under
review.
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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
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 the 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"), (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 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 other
supplement and such supplement was furnished by the Seller or GECC to the
Underwriter prior to the delivery 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 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.
10
(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, 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. 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 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), (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
11
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 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 Underwriter 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 as 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
12
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, (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 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.
Section 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail on a 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.
13
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:
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇;
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
(ii) if sent to the Seller, will be mailed, delivered or
sent by facsimile transmission, and confirmed to it at:
CEF Equipment Holding, LLC
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Capital Markets Operations
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
with a copy to:
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ & Maw LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
14
GE Capital Markets Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if sent to GECC, will be mailed, delivered or sent by
facsimile transmission, and confirmed to it at:
General Electric Capital Corporation
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
or to such other address as GECC, the Seller or the Representative may designate
in writing to the other parties hereto.
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 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,
15
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.
16
Exhibit 1(a)
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 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.
Exhibit 1(a)
Schedule I
Approximate Approximate Approximate
Amount Amount Amount
Initial Purchase Purchased by Purchased by Purchased by
Principal Price Deutsche Bank Citigroup Global Banc of America
Class Amount Percentage Securities Inc. Markets Inc. Securities LLC
--------- -------------- ---------- --------------- ---------------- --------------
Class A-1 $ 101,200,000 99.90000% $ 45,540,000 $ 45,540,000 $ 10,120,000
Class A-2 $ 67,600,000 99.87500% $ 30,420,000 $ 30,420,000 $ 6,760,000
Class A-3 $ 124,400,000 99.82500% $ 55,980,000 $ 55,980,000 $ 12,440,000
Class A-4 $ 53,590,000 99.75500% $ 24,115,500 $ 24,115,500 $ 5,359,000
Class B $ 30,156,000 99.71500% $ 13,570,200 $ 13,570,200 $ 3,015,600
--------------
Total $ 376,946,000
Total Purchase Price: $376,325,359.90