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 Merrill Lynch, Amount
Initial Purchase Purchased by Morgan Stanley Purchased by Pierce, Fenner Purchased by
Principal Price Deutsche Bank & Co. Lehman & Smith 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
EXHIBIT 4(b)
EXECUTION VERSION
LIMITED LIABILITY COMPANY AGREEMENT
OF
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES 2004-1
(A DELAWARE LIMITED LIABILITY COMPANY)
Dated November 16, 2004
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES 2004-1
LIMITED LIABILITY COMPANY AGREEMENT dated as of November 16, 2004,
adopted by CEF Equipment Holding, L.L.C., as a member (the "Initial Member").
Preliminary Statement
The Initial Member desires to form a limited liability company under
the Delaware Limited Liability Company Act (currently Chapter 18 of Title 6 of
the Delaware Code), as amended from time to time (the "Act").
Accordingly, the Initial Member hereby adopts the following as the
"Limited Liability Company Agreement" of the Company within the meaning of
Section 18-101(7) of the Act.
ARTICLE I
SECTION 1.1 Definitions. Capitalized terms used in this Agreement
and not otherwise defined herein shall have the meanings assigned to such terms
in the "Definitions Addendum" attached to this Agreement and incorporated herein
and shall otherwise have the meanings assigned to such terms in the Act.
ARTICLE II
SECTION 2.1 Formation. The Company was formed as a limited liability
company pursuant to the provisions of the Act on September 27, 2004 by entry
into this Agreement and by the filing of the Certificate of Formation with the
office of the Secretary of State of Delaware. The Initial Member hereby adopts,
confirms and ratifies said Certificate of Formation and all acts taken in
connection therewith. William Malpica is hereby designated as an "authorized
person" within the meaning of the Act, and has executed, delivered and filed the
Certificate of Formation of the Company with the Secretary of State of the State
of Delaware. Upon the filing of the Certificate of Formation with the Secretary
of State of the State of Delaware, his powers as an "authorized person" ceased,
and the Member thereupon became the designated "authorized person" and shall
continue as the designated "authorized person" within the meaning of the Act.
The Member shall execute, deliver and file any other certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify to
do business any other jurisdiction in which the Company may wish to conduct
business. The existence of the Company as a separate legal entity shall continue
until cancellation of the Certificate of Formation as provided in the Act.
ARTICLE III
SECTION 3.1 Name. The name of the Company is GE Commercial Equipment
Financing LLC, Series 2004-1.
Issuer LLC Agreement
ARTICLE IV
SECTION 4.1 Purpose and Limitations on Activities. The Company shall
limit its purposes and activities to (i) the issuance and sale of Membership
Interests, on the terms and conditions set forth herein; (ii) acquiring (through
purchase or otherwise) from CEF Equipment Holding, L.L.C. or any of its
subsidiaries or affiliates (collectively, the "Seller"), holding, servicing,
transferring and pledging equipment loan and lease receivables, mortgage loans
and receivables and any related rights, documents, assets, and interests
("Assets"); (iii) entering into any agreement providing for the acquisition,
sale, financing, servicing, hedging or transfer of the Assets or interests in
the Assets; (iv) retaining or reacquiring an interest in the Assets; (v) lending
or otherwise investing proceeds from Assets and any other income; and (vi) any
purposes and activities necessary, convenient or incidental to the conduct,
promotion or attainment of the business purposes and activities of the Company
as set forth in clauses (i) through (v) above.
Provided that, in connection with the permitted activities specified above, the
purpose and activities of the Company shall be further limited as follows:
(vii) the Company may only hold (a) financial assets (as that term is
defined within Statement of Financial Accounting Standards No. 140 and related
Generally Accepted Accounting Principles, as amended) transferred to it from the
Seller (the "Transferred Assets"), (b) cash obtained from collections of the
Financial Assets and temporary cash equivalent investments of that cash pending
distribution, and (c) nonfinancial assets that may be acquired from time to time
in connection with foreclosure and related servicing activities associated with
the financial assets acquired under clause (a) above. Temporary cash investments
are intended to include money market accounts and certificates of deposits with
maturities no later than the next scheduled distribution date;
(viii) the servicing of assets held by the Company shall be conducted in a
manner that is consistent with the servicing agreement to which the Company
shall become a party coincident with the initial transfer of assets from the
Seller (the "Servicing Agreement");
(ix) the Company may sell or assign assets only as specified in the
Servicing Agreement; and
(x) the Company may enter into derivative contracts or hedges that have
the following characteristics: (a) are interest rate swap arrangements, (b) have
a fair value at inception of zero, and (c) commence on a date within 2 days of
the effective date of the receipt by the Company of Transferred Assets.
SECTION 4.2 Authority. The Company, by or through the Member, or any
Manager on behalf of the Company, may enter into and perform the Indenture,
Transaction Documents and all documents, agreements, certificates, or financing
statements contemplated thereby or related thereto, together with any amendments
or supplements thereto, all without any further act, vote or approval of any
other Person notwithstanding any other provision of this Agreement, the Act or
applicable law, rule or regulation. The foregoing authorization shall not be
deemed a restriction on the powers of the Member or any Manager to enter into
other agreements on behalf of the Company.
Issuer LLC Agreement
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ARTICLE V
SECTION 5.1 Registered Office; Other Offices. The address of the
registered office of the Company in the State of Delaware is c/o Corporation
Service Company, 2711 Centerville Road, Wilmington, New Castle County, Delaware
19808. The Manager may establish other offices of the Company at such locations
within or outside the State of Delaware as the Initial Member may determine.
ARTICLE VI
SECTION 6.1 Registered Agent. The name and address of the registered
agent of the Company for service of process on the Company in the State of
Delaware is Corporation Service Company, 2711 Centerville Road, Wilmington, New
Castle County, Delaware, 19808.
ARTICLE VII
SECTION 7.1 Admission of Members. (a) By execution of this
Agreement, the Initial Member is hereby admitted as a Member of the Company and
shall have a Membership Interest in the Company including, without limitation,
such rights in and to the profits and losses of the Company and rights to
receive distributions of the Company's assets, and such other rights and
obligations, as provided herein.
(b) Without the consent of any Member or other Person, the Manager
may cause the Company to issue additional Membership Interests and thereby admit
a new Member or new Members, as the case may be, to the Company, only if such
new Member (i) has delivered to the Initial Member its capital contribution,
(ii) has agreed in writing to be bound by the terms of this Agreement by
becoming a party hereto, and (iii) has delivered such additional documentation
as the Initial Member shall reasonably require to so admit such new Member to
the Company.
SECTION 7.2 Initial Member. The name and the address of the Initial
Member of the Company is as follows:
CEF Equipment Holding, L.L.C.
44 Old Ridgeburry Road
Danbury, Connecticut 06810
ARTICLE VIII
SECTION 8.1 Management. Subject to Section 16.1, management of the
Company is initially vested in the Initial Member. The Initial Member shall be a
"manager" within the meaning of the Act (a "Manager") until such time as the
Initial Member appoints one or more Managers to replace the Initial Member in
its capacity as manager of the Company. Each Manager shall perform duties, on
behalf of the Company as Manager as set forth in this Agreement and in the Act
and may enter into contracts with Persons on behalf of the Company and engage in
activities on behalf of the Company, including issuing, delivering and executing
Issuer LLC Agreement
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contracts, agreements and other documents in connection therewith, in each case
in accordance with Section 4.1.
SECTION 8.2 Managers to Provide Information to the Initial Member.
It shall be the duty of each Manager, to keep the Initial Member reasonably
informed as to material events relating to the Company, including, without
limitation, all claims pending or threatened against the Company and the
execution by such Manager on behalf of the Company of any material agreements or
instruments.
SECTION 8.3 Accounting and Tax Reports; Tax Matters. (a) The Manager
shall: (a) maintain (or cause to be maintained) the books of the Company on a
calendar year basis on the accrual method of accounting, (b) deliver to each
Member, as may be required by the Code and applicable Treasury Regulations, such
information as may be required (including Schedule K-1) to enable each Member to
prepare its federal, state and local income tax returns, (c) file such tax
returns relating to the Company, and make such elections as may from time to
time be required or appropriate under any applicable state or federal statute or
rule or regulation thereunder so as to maintain the Company's characterization
as a partnership for federal income tax purposes, (d) cause such tax returns to
be signed in the manner required by law and (e) collect or cause to be collected
any withholding tax with respect to income or distributions to Members. The
Manager shall elect under Section 1278 of the Code to include in income
currently any market discount that accrues with respect to the Assets and shall
elect under Section 171 of the Code to amortize any bond premium with respect to
the Assets. The Manager shall not make the election provided under Section 754
of the Code.
(b) Initial Member shall be designated the "tax matters partner"
of the Company pursuant to Section 6231(a)(7)(A) of the Code and applicable
Treasury Regulations and shall sign on behalf of the Company the tax returns of
the Company.
ARTICLE IX
SECTION 9.1 Initial Capital Contributions. The initial cash capital
contribution to be made by the Initial Member promptly hereafter is $10,000.
ARTICLE X
SECTION 10.1 Additional Contributions. (a) The Members shall have no
obligation to make any additional capital contribution to the Company after the
date hereof, but the Initial Member may elect to do so from time to time.
ARTICLE XI
SECTION 11.1 Distributions. Distributions shall be made to the
Members at the times and in the aggregate amounts determined by the Manager,
subject to the limitations of the Act or other applicable laws.
SECTION 11.2 Distribution upon Withdrawal. Upon withdrawal, any
withdrawing Member shall not be entitled to receive any distribution and shall
not otherwise be entitled to receive the fair market value of its Membership
Interest.
Issuer LLC Agreement
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ARTICLE XII
SECTION 12.1 Transfers. (a) A Member other than the Initial Member
may not Transfer any part of its Membership Interest without the prior written
consent of the Initial Member, such consent not to be unreasonably withheld. Any
purported Transfer of any Membership Interest in contravention of this Section
12.1 shall, to the fullest extent permitted by law, be null and void and of no
force or effect whatsoever. No purchase or transfer of a Membership Interest
will be effective, and neither the Company nor the Initial Member will recognize
any such purchase or transfer, if, after giving effect to such purchase or
transfer, 25% or more of the Membership Interests as determined under 29 C.F.R.
Section 2510.3-101, would be held by Benefit Plan Investors. A purchaser that
is, or is acting on behalf of, an employee benefit plan subject to ERISA or
Section 4975 of the Code or any entity deemed to hold plan assets of either of
the foregoing, will be required to represent and warrant that its investment in
the Membership Interests will not result in a non-exempt prohibited transaction
under ERISA or Section 4975 of the Code (or, in the case of a governmental or
church plan, a violation of any similar federal, state or local law).
(b) The Initial Member shall admit a transferee of a Member's
Membership Interest to the Company only if such transferee (i) has agreed in
writing to be bound by the terms of this Agreement by becoming a party hereto
and (ii) has delivered such additional documentation as the Initial Member shall
reasonably require to so admit such transferee to the Company. Notwithstanding
anything contained herein to the contrary, both the Company and the Initial
Member shall be entitled to treat the transferee of a Membership Interest as the
absolute owner thereof in all respects, and shall incur no liability for
distributions of cash or other property made in good faith to it, until such
time as a written assignment or other evidence of the consummation of a Transfer
that conforms to the requirements of this Section 12.1 and is reasonably
satisfactory to the Initial Member has been received by the Company. The
effective date of any Transfer permitted under this Agreement shall be the close
of business on the day of receipt thereof by the Company.
SECTION 12.2 Restrictions on Expulsion. No Member shall be expelled
as a Member under any circumstances.
ARTICLE XIII
SECTION 13.1 Liability of Members. Except as required by the Act, no
Member or any Manager, agent, shareholder, director, employee or incorporator of
any Member solely by reason of its capacity as such will be liable for the
debts, obligations and liabilities of the Company, whether arising in contract,
tort or otherwise, which debts, obligations and liabilities shall be solely the
debts, obligations and liabilities of the Company or such other Member, as
applicable.
ARTICLE XIV
SECTION 14.1 Exculpation and Indemnification of Members and
Managers. (a) No Indemnified Party shall be liable to the Company or any Member
for any loss, damage or claim incurred by reason of any act performed or any act
omitted by such Indemnified Party in
Issuer LLC Agreement
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connection with any matter arising from, or related to, or in connection with
this Agreement or the Company's business or affairs; provided, however, that the
foregoing shall not eliminate or limit the liability of any Indemnified Party if
a judgment or other final adjudication adverse to the Indemnified Party
establishes (i) that the Indemnified Party's acts or omissions were in bad faith
or involved intentional misconduct or a knowing violation of law or (ii) that
the Indemnified Party personally gained in fact a financial profit or other
advantage to which the Indemnified Party was not legally entitled.
(b) The Company shall, to the fullest extent permitted by the Act,
indemnify and hold harmless, and advance expenses to, each Indemnified Party
against any losses, claims, damages or liabilities to which the Indemnified
Party may become subject in connection with any matter arising from, related to,
or in connection with, this Agreement or the Company's business or affairs;
provided, however, that no indemnification may be made to or on behalf of any
Indemnified Party (and expenses advanced shall be returned) if a judgment or
other final adjudication adverse to the Indemnified Party establishes (i) that
the Indemnified Party's acts were committed in bad faith or were the result of
active and deliberate dishonesty and were material to the cause of action so
adjudicated or (ii) that the Indemnified Party personally gained in fact a
financial profit or other advantage to which the Indemnified Party was not
legally entitled.
(c) Notwithstanding anything else contained in this Agreement, the
indemnity obligations of the Company under paragraph (b) above shall:
(i) be in addition to any liability that the Company may
otherwise have;
(ii) inure to the benefit of the successors, assigns, heirs
and personal representatives of each Indemnified Party; and
(iii) be limited to the assets of the Company.
(d) This Article XIV shall survive any termination of this
Agreement and the dissolution of the Company.
ARTICLE XV
SECTION 15.1 Duration and Dissolution. The Company shall be
dissolved and its affairs shall be wound up upon the affirmative vote or written
consent of the Initial Member or as otherwise required by the Act.
ARTICLE XVI
SECTION 16.1 Bankruptcy. Except by the unanimous consent of all
Members, and Managers, the Company shall not file a voluntary petition in
bankruptcy or otherwise seek relief under Title 11 of the United States Code or
any successor statute thereto, or under any similar applicable state law.
Issuer LLC Agreement
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SECTION 16.2 Amendments. This Agreement may be amended only by
written instrument executed by the Initial Member, provided that the Rating
Agency Condition is satisfied.
SECTION 16.3 Headings. The titles of Sections of this Agreement are
for convenience or reference only and shall not define or limit any of the
provisions of this Agreement.
SECTION 16.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT
GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES THEREOF.
SECTION 16.5 Separability of Provisions. Each provision of this
Agreement shall be considered separable and if for any reason any provision or
provisions herein are determined to be invalid, unenforceable or illegal under
any existing or future law, such invalidity, unenforceability or illegality
shall not impair the operation of or affect those portions of this Agreement
which are valid, enforceable and legal.
SECTION 16.6 Further Assurances. The Initial Member shall execute
and deliver such further instruments and do such further acts and things as may
be required to carry out the intent and purposes of this Agreement.
SECTION 16.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original of this
Agreement. Executed counterparts may be delivered electronically.
SECTION 16.8 Assignment; Third Party Beneficiaries. The parties
hereto acknowledge and agree that the rights of the Company under this Agreement
may be pledged from time to time by the Company to creditors of the Company to
secure the Company's obligations to such creditors. Nothing in this Agreement
whether express or implied, shall be construed to give to any other Person
(other than a party hereto or an Indemnified Party) any legal or equitable
right, remedy or claim under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 16.9 Notwithstanding any other provision of this Agreement,
each Member agrees that this Agreement constitutes a legal, valid and binding
agreement of such Member, and is enforceable against such Member, in accordance
with its terms.
[Signature Follows]
7
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Agreement as of the date first above written.
CEF EQUIPMENT HOLDING, L.L.C.,
as Member
By: _______________________________
Name:
Title:
Issuer LLC Agreement
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DEFINITIONS ADDENDUM
TO THE
LIMITED LIABILITY COMPANY AGREEMENT
"Act" is defined in the Preliminary Statement.
"Affiliate" means, with respect to any Person, any Person or group
of Persons acting in concert in respect of the Person in question that, directly
or indirectly, controls or is controlled by or is under common control with such
Person. For the purposes of this definition, "control" (including, with
correlative meaning, the terms "controlled by" and "under common control with")
as used with respect to any Person or group of Persons, shall mean the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
"Agreement" means this Limited Liability Company Agreement, as
amended from time to time.
"Amounts Available for Distribution" means on each Distribution Date
all funds received by the Company from whatever source after the payment of all
interest, principal and other debt payments made by the Company on such
Distribution Date and any other obligations of the Company payable on such
Distribution Date.
"Asset" is defined in Section 4.1.
"Benefit Plan Investor" means an "employee benefit plan" within the
meaning of Section 3(3) of ERISA (whether or not subject to ERISA, and
including, without limitation, foreign or government plans), a "plan" described
in Section 4975(e)(1) of the Code, or any entity deemed to hold "plan assets" of
any of the foregoing by reason of investment by an "employee benefit plan" or
"plan" in the entity.
"Business Day" means any day that is not a Saturday, Sunday or a day
on which banks are required or permitted to be closed in the State of New York
or the State of Connecticut.
"Certificate of Formation" means the Certificate of Formation of the
Company, as amended from time to time.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and Treasury Regulations promulgated thereunder.
"Company" means GE Commercial Equipment Financing LLC, Series
2004-1, a Delaware limited liability company.
"Distribution Date" means the 20th day of each calendar month, or,
if such day is not a Business Day, the next Business Day, commencing on December
20, 2004.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time and any regulations promulgated thereunder.
Issuer LLC Agreement
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"Indemnified Party" means a Member, Manager, employee, organizer or
agent of the Company or any officer, agent, shareholder, director, employee or
incorporator of the Initial Member.
"Indenture" means the Indenture, dated November 16, 2004, between
the Company and JPMorgan Chase Bank, N.A., as the Indenture Trustee thereunder,
as the same may be amended and supplemented from time to time.
"Initial Member" has the meaning assigned in the preamble.
"Manager" is defined in Section 8.1.
"Member" means the Initial Member and any Person that is admitted as
a member of the Company, in each case for so long as such Person continues to be
a member of the Company, in such Person's capacity as a member of the Company.
"Membership Interest" means the entire limited liability company
interest of a Member in the Company at any particular time, including the right
of a Member to any and all benefits to which a Member may be entitled as
provided in this Agreement, together with the obligations of such member to
comply with all the terms and provisions of this Agreement. A Membership
Interest may be represented by a certificate.
"Person" means an individual, partnership corporation (including a
business trust), limited liability company, joint stock company, trust,
association, joint venture, government or any agency or political subdivision
thereof or any other entity of whatever nature.
"Rating Agency Condition" means, with respect to any action, that
each rating agency rating any notes issued by the Company shall have been given
prior notice thereof and that each of the rating agencies shall have notified
the Company and JPMorgan Chase Bank, N.A. as the Indenture Trustee in writing
that such action will not result in a reduction or withdrawal of the then
current rating of any such class of the notes.
"Seller" is defined in Section 4.1.
"Transaction Documents" means this Agreement, the Related Documents
as defined in the Indenture and all documents and certificates contemplated
thereby or delivered in connection therewith.
"Transfer" means, (i) as a noun, any transfer, sale, assignment,
exchange, charge, pledge, gift, hypothecation, conveyance, encumbrance or other
disposition whether direct or indirect, voluntary or involuntary, by operation
of law or otherwise and, (ii) as a verb, directly or indirectly, voluntarily or
involuntarily, by operation of law or otherwise, to transfer, sell, assign,
exchange, charge, pledge, give, hypothecate, convey, encumber or otherwise
dispose of.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code.
Issuer LLC Agreement
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FORM OF CERTIFICATE OF FORMATION
OF
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES 2004-1
This Certificate of Formation of GE Commercial Equipment Financing LLC,
Series 2004-1, dated as of September 27, 2004, has been duly executed and is
being filed by William Malpica, as an authorized person, to form a limited
liability company under the Delaware Limited Liability Company Act (6
Del.C. Section 18-101, et seq.).
1. The name of the limited liability company is GE Commercial Equipment
Financing LLC, Series 2004-1 (the "LLC").
2. The address of the registered office of the LLC in the State of Delaware
is 2711 Centerville Road, in the City of Wilmington, County of New Castle,
Delaware 19808. The name of the registered agent of the LLC at such
address is Corporation Service Company.
3. The name and address of the registered agent for service of process on the
LLC in the State of Delaware is Corporation Service Company, 2711
Centerville Road, County of New Castle, Wilmington, Delaware 19808.
4. The period of duration of the LLC is perpetual unless otherwise dissolved
in accordance with the Limited Liability Company Agreement of the LLC.
5. This Certificate of Formation shall be effective as of its filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation of the LLC this 27th day of September 2004.
By:
Name: William Malpica
Title: Authorized Person
Issuer LLC Agreement
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EXHIBIT 4(c)
EXECUTION VERSION
LOAN SALE AGREEMENT
November 16, 2004,
among
GENERAL ELECTRIC CAPITAL CORPORATION,
as Seller,
GENERAL ELECTRIC CREDIT CORPORATION OF TENNESSEE,
as Seller,
and
CEF EQUIPMENT HOLDING, L.L.C.,
as Purchaser
Loan Sale Agreement
This LOAN SALE AGREEMENT ("Agreement" or "Sale Agreement") is entered into
as of November 16, 2004 by and among GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation ("GE Capital"), GENERAL ELECTRIC CREDIT CORPORATION OF
TENNESSEE, a Tennessee corporation ("GECT" and together with GE Capital, the
"Sellers", and individually, each a "Seller") and CEF EQUIPMENT HOLDING, L.L.C.,
a Delaware limited liability company (the "Purchaser").
In consideration of the premises and the mutual covenants hereinafter
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in Section 1 of Annex A to this
Agreement.
Section 1.2 Rules of Construction. For purposes of this Agreement, the
rules of construction set forth in Section 2 of Annex A shall govern. All
Annexes, Exhibits and Schedules hereto, are incorporated herein by reference
and, taken together with this Agreement, shall constitute but a single
agreement.
ARTICLE II
SALES OF CEF ASSETS
Section 2.1 Sale of Loans. (a) Subject to the terms and conditions hereof
each Seller does hereby sell, transfer, assign, set over and otherwise convey to
the Purchaser, without recourse (subject to the obligations herein) all right,
title and interest of each Seller in:
(i) the Loans, including the Loan Files, and all obligations of
the Obligors thereunder, including the right to payment of any
interest accrued and to accrue from and after November 1, 2004
or finance charges and other obligations of such Obligor with
respect thereto due or to become due on or after the Cutoff
Date;
(ii) all Related Security and Collections with respect thereto;
(iii) all other property now or hereafter in the possession or
custody of, or in transit to, the Issuer, the Servicer, any
Sub-Servicer or each Seller relating to any of the foregoing;
(iv) all Records with respect to any of the foregoing; and
(v) all proceeds of the foregoing (collectively the "CEF Assets").
Loan Sale Agreement
(b) On or before the Closing Date, each Seller shall (i) indicate
in its computer files that the CEF Assets have been sold to the Purchaser
pursuant to this Agreement by so identifying such CEF Assets with an
appropriate notation and (ii) deliver to the Purchaser or its designee the
following documents (collectively, the "Loan Files"):
(i) the original fully executed copy of the Loan;
(ii) a record or facsimile of the original credit application fully
executed by the Obligor;
(iii) the original certificate of title or file stamped copy of the
UCC financing statement or such other documents evidencing the
security interest of the Purchaser in the Equipment; and
(iv) any and all other documents relating to a Loan, an Obligor or
any of the Equipment.
Section 2.2 Grant of Security Interest. The parties hereto intend that the
sale pursuant to Section 2.1 hereof shall constitute a purchase and sale and not
a loan. Notwithstanding anything to the contrary set forth in this Section 2.2,
if a court of competent jurisdiction determines that the sale provided for
herein constitutes a loan and not a purchase and sale, then the parties hereto
intend that this Agreement shall constitute a security agreement under
applicable law and that each Seller shall be deemed to have granted, and each
Seller hereby grants, to the Purchaser a first priority lien and security
interest in and to all of such Seller's right, title and interest in, to and
under the CEF Assets sold and transferred by such Seller on the Closing Date.
The possession by the Purchaser of notes and such other goods, money, documents,
chattel paper or certificated securities shall be deemed to be "possession by or
delivery to secured party" for purposes of perfecting the security interest
pursuant to the UCC in force in the relevant jurisdiction (including, without
limitation, Section 9-313(c)(1) thereof). Notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, bailees or agents (as applicable) of the Purchaser for the
purpose of perfecting such security interest under applicable law (except that
nothing in this sentence shall cause any Person to be deemed to be an agent of
the Purchaser for any purpose other than for perfection of such security
interest unless, and then only to the extent, expressly appointed and authorized
by the Purchaser in writing).
Section 2.3 Sale Price. (a) As consideration for the sale of the CEF
Assets pursuant to Section 2.1 hereof, the Purchaser shall pay to the applicable
Seller on the Closing Date, the CEF Cash Purchase Price for the CEF Assets sold
and transferred by such Seller to the Purchaser on the Closing Date. The CEF
Cash Purchase Price for the sale of CEF Assets shall be an amount equal to the
fair market value thereof as agreed upon by the Purchaser and the applicable
Seller prior to such sale.
(b) The CEF Cash Purchase Price for the CEF Assets sold by each
Seller under this Agreement shall be payable in full in cash by the
Purchaser on the Closing Date. On the Closing Date, the Purchaser shall,
upon satisfaction of the applicable
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2
conditions set forth in Article III, make available to each of the Sellers
the CEF Cash Purchase Price in same day funds.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions to Sale. Each sale hereunder shall be subject to
satisfaction of each of the following conditions precedent (any one or more of
which, except clause (e) below, may be waived in writing by the Purchaser) as of
the Closing Date:
(a) This Agreement or counterparts hereof shall have been duly
executed by, and delivered to, the applicable Seller and the Purchaser,
and the Purchaser shall have received such documents, instruments,
agreements and legal opinions as the Purchaser shall reasonably request in
connection with the transactions contemplated by this Agreement, each in
form and substance reasonably satisfactory to the Purchaser.
(b) The Purchaser shall have received satisfactory evidence that
the applicable Seller has obtained all required consents and approvals of
all Persons, including all requisite Governmental Authorities, to the
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby.
(c) The applicable Seller shall be in compliance in all material
respects with all applicable foreign, federal, state and local laws and
regulations, including those specifically referenced in Section 4.2(c),
except to the extent that the failure to so comply, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(d) The representations and warranties of the applicable Seller
contained herein or in any other Related Document shall be true and
correct in all material respects (or, to the extent any such
representation or warranty is qualified by a materiality standard, such
representation or warranty shall be true and correct) as of the Closing
Date, both before and after giving effect to such sale, except to the
extent that any such representation or warranty expressly relates to an
earlier date and except for changes therein expressly permitted by this
Agreement.
(e) At the time of such sale, the Purchaser shall have sufficient
funds on hand to pay the CEF Cash Purchase Price.
(f) The applicable Seller shall be in compliance with each of its
covenants and other agreements set forth herein.
(g) The applicable Seller shall have taken such other action,
including delivery of approvals, consents, opinions, documents and
instruments to the Purchaser as the Purchaser may reasonably request.
Loan Sale Agreement
3
The consummation by a Seller of the sale of CEF Assets on the Closing Date shall
be deemed to constitute, as of the Closing Date, a representation and warranty
by such Seller that the conditions in clauses (d), (f) and (g) of this Section
3.1 have been satisfied.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.1 Representations and Warranties of the Sellers. To induce the
Purchaser to purchase the CEF Assets, each Seller makes the following
representations and warranties to the Purchaser, as of the Closing Date, each
and all of which shall survive the execution and delivery of this Agreement.
(a) Corporate Existence; Power and Authority. Such Seller (i) is a
corporation duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization; and (ii) has all requisite
power and authority and licenses to conduct its business, to own its
properties and to execute, deliver and perform its obligations under this
Agreement.
(b) UCC Information. The true legal name of such Seller as
registered in the jurisdiction of its organization, and the current
location of such Seller's jurisdiction of organization are set forth in
Schedule 4.1(b) and such location has not changed within the past 12
months with respect to such Seller. During the prior five years, except as
set forth in Schedule 4.1(b), such Seller has not been known as or used
any corporate, fictitious or trade name. In addition, Schedule 4.1(b)
lists the Seller's (i) federal employer identification number and (ii)
organizational identification number as designated by the jurisdiction of
its organization.
(c) Authorization, Compliance with Law. The execution, delivery
and performance by such Seller of this Agreement and the other Related
Documents and the creation and perfection of all Liens and ownership
interests provided for herein: (i) have been duly authorized by all
necessary corporate action, and (ii) do not violate any provision of any
law or regulation of any Governmental Authority, or contractual or
corporate restrictions, binding on such Seller, except where such
violations, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
(d) Enforceability. On or prior to the Closing Date, each of the
Related Documents to which a Seller is a party shall have been duly
executed and delivered by such Seller and each such Related Document shall
then constitute a legal, valid and binding obligation of such Seller,
enforceable against it in accordance with its terms, subject as to
enforcement to bankruptcy, receivership, conservatorship, insolvency,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting creditors' rights and to general principles of
equity.
(e) Solvency. Such Seller is Solvent.
Loan Sale Agreement
4
(f) Use of Proceeds. No proceeds received by such Seller under
this Agreement will be used by it for any purpose that violates Regulation
U of the Federal Reserve Board.
(g) Investment Company Act. Such Seller is not an "investment
company" or "controlled by" an "investment company," as such terms are
defined in the Investment Company Act.
(h) Loans and Other CEF Assets. With respect to each Loan and the
other CEF Assets sold by such Seller on the Closing Date, such Seller
represents and warrants that (i) such Loan satisfies the criteria for an
Eligible Loan as of the Cut-Off Date; (ii) immediately prior to sale to
the Purchaser, such CEF Assets were owned by such Seller free and clear of
any Adverse Claim, and such Seller has had at all relevant times the full
right, power and authority to sell, contribute, assign, transfer and
pledge its interest therein as contemplated under this Agreement and, upon
such sale, the Purchaser will acquire valid and properly perfected title
to, and the sole record and beneficial ownership interest in, such CEF
Assets, free and clear of any Adverse Claim or restrictions on
transferability, and the Liens granted to the Purchaser by such Seller
pursuant to Section 2.2 will at all times be fully perfected first
priority Liens in and to such Loans and, in addition, following such sale,
such Loan will not be subject to any Adverse Claim as a result of any
action or inaction on the part of such Seller (or any predecessor in
interest); and (iii) if such Loan is cross-collateralized with a loan that
is not a CEF Asset conveyed hereunder, as of the Closing Date, either (x)
the repossession or exercise of other rights with respect to the related
Equipment by the holder of such loan would not materially impair the
security intended to be afforded for such Loan and result in a material
adverse effect on the holders of the Notes or (y) the holder of such loan
and the Purchaser or its assigns as holder of the Loan have entered into
an intercreditor arrangement under which each holder has agreed to
subordinate its respective lien and rights of enforcement against the
Equipment financed by the other holder or its predecessor in interest.
The representations and warranties described in this Section 4.1 shall survive
the sale of the CEF Assets to the Purchaser, any subsequent assignment or sale
of the CEF Assets by the Purchaser, and the termination of this Agreement and
the other Related Documents and shall continue until the payment in full of all
CEF Assets.
Section 4.2 Affirmative Covenants of the Sellers. Each Seller covenants
and agrees that, unless otherwise consented to by the Purchaser, from and after
the Closing Date:
(a) Records. The Seller shall at its own cost and expense, for not
less than three years from the date on which each Loan was originated, or
for such longer period as may be required by law, maintain adequate
Records with respect to such Loan, including records of all payments
received, credits granted and merchandise returned with respect thereto.
(b) Access. At any reasonable time, and from time to time at the
Purchaser's reasonable request, and upon at least seven days prior notice
to such Seller, such Seller shall permit the Purchaser (or such Person as
the Purchaser may designate), at the
Loan Sale Agreement
5
expense of the Purchaser (or such Person as the Purchaser may designate),
to conduct audits or visit and inspect any of the properties of such
Seller to examine the records, internal controls and procedures maintained
by such Seller with respect to the CEF Assets and take copies and extracts
therefrom, and to discuss such Seller's affairs with its officers,
employees and, upon notice to such Seller, independent accountants. Such
Seller shall authorize such officers, employees and independent
accountants to discuss with the Purchaser (or such Person as the Purchaser
may designate) the affairs of such Seller as such affairs relate to the
CEF Assets. Any audit provided for herein shall be conducted in accordance
with such Seller's rules respecting safety and security on its premises
and without materially disrupting operations. If an Event of Default shall
have occurred and be continuing, such Seller shall provide such access at
all times and without advance notice and shall provide the Purchaser (or
such Person as the Purchaser may designate) with access to its suppliers
and customers.
(c) Compliance With Agreements and Applicable Laws. The Seller
shall comply with all federal, state and local laws and regulations
applicable to it and the CEF Assets, including those relating to truth in
lending, fair credit billing, fair credit reporting, equal credit
opportunity, fair debt collection practices, privacy, licensing and
taxation, except to the extent that the failure to so comply, individually
or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
(d) Maintenance of Existence and Conduct of Business. The Seller
shall preserve and maintain its corporate existence, rights, franchise and
privileges in the jurisdiction of its incorporation.
(e) Notice of Material Event. The Seller shall promptly inform the
Purchaser in writing of the occurrence of any of the following, in each
case setting forth the details thereof and what action, if any, the Seller
proposes to take with respect thereto:
(i) any Litigation commenced, or to the knowledge of the Seller,
threatened against the Seller or with respect to or in
connection with all or any substantial portion of the CEF
Assets or developments in such Litigation in each case that
the Seller believes has a reasonable risk of being determined
adversely to the Seller and that could, if determined
adversely, have a Material Adverse Effect; or
(ii) the commencement of a case or proceeding by or against the
Seller seeking a decree or order in respect of the Seller (A)
under the Bankruptcy Code or any other applicable federal,
state or foreign bankruptcy or other similar law, (B)
appointing a custodian, receiver, liquidator, assignee,
trustee or sequestrator (or similar official) for the Seller
or for any substantial part of the Seller's assets, or (C)
ordering the winding-up or liquidation of the affairs of the
Seller.
(f) Separate Identity. The Seller shall, to the extent applicable
to it, act in a manner that is consistent with the statements
set forth in Exhibit 4.2(f).
Loan Sale Agreement
6
(g) Deposit of Collections. The Seller shall transfer and cause
its Subsidiaries to transfer to the Purchaser or the Servicer on its
behalf, promptly, and in any event no later than the second Business Day
after receipt thereof, all Collections it may receive in respect of CEF
Assets.
(h) Sale Characterization. For accounting purposes, the Seller
shall treat the sale made hereunder as a sale of the CEF Assets. The
Seller shall also maintain its accounting books and records in a manner
which clearly reflects such sale of the CEF Assets to the Purchaser.
Section 4.3 Negative Covenants of the Sellers. Each Seller covenants and
agrees that, without the prior written consent of the Purchaser, from and after
the Closing Date and until the later of the Redemption Date or the Class C
Maturity Date:
(a) Adverse Claims. The Seller shall not create, incur, assume or
permit to exist any Adverse Claim on or with respect to any CEF Assets.
(b) UCC Matters. The Seller shall not change its state of
organization or incorporation or its name, identity or corporate structure
such that any financing statement filed to perfect the Purchaser's
interests under this Agreement would become seriously misleading, unless
the Seller shall have given the Purchaser not less than 30 days' prior
written notice of such change.
(c) No Proceedings. From the Closing Date and until the date one
year plus one day following the date on which all amounts due with respect
to the Notes have been paid in full in cash, Seller shall not, directly or
indirectly, institute or cause to be instituted against the Purchaser any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceeding under any federal or state bankruptcy or
similar law; provided that the foregoing shall not in any way limit the
Seller's right to pursue any other creditor rights or remedies that the
Seller may have under applicable law.
ARTICLE V
INDEMNIFICATION
Section 5.1 Indemnification. Without limiting any other rights that the
Purchaser or any of its Stockholders, officers, directors, employees, attorneys,
agents or representatives (each, a "Purchaser Indemnified Person") may have
hereunder or under applicable law, each Seller hereby agrees severally to
indemnify and hold harmless each Purchaser Indemnified Person from and against
any and all Indemnified Amounts that may be claimed or asserted against or
incurred by any such Purchaser Indemnified Person to the extent arising from or
related to the failure of a Loan sold and transferred by such Seller to be
originated in compliance with all requirements of law; provided, that no Seller
shall be liable for any indemnification to a Purchaser Indemnified Person to the
extent that any such Indemnified Amounts result from (a) such Purchaser
Indemnified Person's bad faith, gross negligence or willful misconduct, (b)
recourse for uncollectible Loans, or (c) any income tax or franchise tax
incurred by any Purchaser
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7
Indemnified Person, except to the extent that the incurrence of any such tax
results from a breach of or default by such Seller under this Agreement.
NO PARTY TO THIS AGREEMENT SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO
THIS AGREEMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH
PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR
INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A
RESULT OF ANY TRANSACTION CONTEMPLATED HEREUNDER.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other parties, or whenever any of the parties desires to give or
serve upon any other parties any communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and shall be deemed to have been validly
served, given or delivered (a) upon the earlier of actual receipt and three
Business Days after deposit in the United States mail, registered or certified
mail, return receipt requested, with proper postage prepaid, (b) upon
transmission, when sent by telecopy or other similar facsimile transmission
(with such telecopy or facsimile promptly confirmed by delivery of a copy by
personal delivery or United States mail as otherwise provided in this Section
6.1), (c) one Business Day after deposit with a reputable overnight courier with
all charges prepaid or (d) when delivered, if hand-delivered by messenger, all
of which shall be addressed to the party to be notified and sent to the address
or facsimile number set forth below or to such other address (or facsimile
number) as may be substituted by notice given as herein provided. The giving of
any notice required hereunder may be waived in writing by the party entitled to
receive such notice. Failure or delay in delivering copies of any notice,
demand, request, consent, approval, declaration or other communication to any
Person (other than Purchaser) designated in any written communication provided
hereunder to receive copies shall in no way adversely affect the effectiveness
of such notice, demand, request, consent, approval, declaration or other
communication. Notwithstanding the foregoing, whenever it is provided herein
that a notice is to be given to any other party hereto by a specific time, such
notice shall be effective only if actually received by such party prior to such
time, and if such notice is received after such time or on a day other than a
Business Day, such notice shall be effective only on the immediately succeeding
Business Day.
Loan Sale Agreement
8
If to GE Capital:
General Electric Capital Corporation
44 Old Ridgebury Road
Danbury, Connecticut 06810
Attention: General Counsel
Telephone: (203) 796-1000
Facsimile: (203) 796-1313
If to GECT:
General Electric Credit Corporation of Tennessee
44 Old Ridgebury Road
Danbury, CT 06801
Attention: Linda Zecher
Telephone: 302-739-3073
Facsimile: 302-739-5831
Attention: Capital Markets Operations
Telephone: (203) 796-5518
Facsimile: (203) 796-5554
Section 6.2 No Waiver; Remedies. (a) Any party's failure, at any time or
times, to require strict performance by any other party hereto of any provision
of this Agreement shall not waive, affect or diminish any right of such party
thereafter to demand strict compliance and performance herewith. Any suspension
or waiver of any breach or default hereunder shall not suspend, waive or affect
any other breach or default whether the same is prior or subsequent thereto and
whether of the same or a different type. None of the undertakings, agreements,
warranties, covenants and representations of any party contained in this
Agreement, and no breach or default by any party hereunder, shall be deemed to
have been suspended or waived by any other party hereto unless such waiver or
suspension is by an instrument in writing signed by an officer of or other duly
authorized signatory of such party and directed to the defaulting party
specifying such suspension or waiver.
(b) Upon discovery by any Seller or the Purchaser of any breach of
any representation, warranty, undertaking or covenant described in
Sections 4.1, 4.2 or 4.3, which breach is reasonably likely to have a
Material Adverse Effect, the party discovering the same shall give prompt
written notice thereof to the other parties hereto.
Loan Sale Agreement
9
As liquidated damages, the Purchaser shall, on the Transfer Date relating
to the Collection Period during which the breach is discovered, request
the applicable Seller to, and such Seller shall pay to, or at the
direction of, the Purchaser the Purchase Amount for the applicable CEF
Assets (measured at the end of the Collection Period during which such
breach is discovered). Upon such payment, all rights, title and interest
of the Purchaser in and to such CEF Assets will be deemed to be
automatically released without the necessity of any further action by the
Purchaser, the applicable Seller or any other party and such CEF Assets
will become the property of the such Seller.
(c) Each party's rights and remedies under this Agreement shall be
cumulative and nonexclusive of any other rights and remedies that such
party may have under any other agreement, including the other Related
Documents, by operation of law or otherwise.
Section 6.3 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of each Seller and the Purchaser and their
respective successors and permitted assigns, except as otherwise provided
herein. No Seller may assign, transfer, hypothecate or otherwise convey its
rights, benefits, obligations or duties hereunder without the prior express
written consent of the Purchaser. Any such purported assignment, transfer,
hypothecation or other conveyance by any Seller without the prior express
written consent of the Purchaser shall be void. Each Seller acknowledges that
under the Purchase and Sale Agreement the Purchaser will assign its rights
granted hereunder to the Issuer, and upon such assignment, the Issuer shall
have, to the extent of such assignment, all rights of the Purchaser hereunder
and the Issuer may in turn transfer such rights. The terms and provisions of
this Agreement are for the purpose of defining the relative rights and
obligations of each of the Sellers and the Purchaser with respect to the
transactions contemplated hereby and no Person shall be a third-party
beneficiary of any of the terms and provisions of this Agreement.
Section 6.4 Termination; Survival of Obligations. (a) This Agreement shall
create and constitute the continuing obligations of the parties hereto in
accordance with its terms, and shall remain in full force and effect until the
earlier of (i) the Class C Maturity Date or (ii) the Redemption Date.
(b) Except as otherwise expressly provided herein or in any other
Related Document, no termination or cancellation (regardless of cause or
procedure) of any commitment made by the Purchaser under this Agreement
shall in any way affect or impair the obligations, duties and liabilities
of any Seller or the rights of the Purchaser relating to any unpaid
portion of any and all recourse and indemnity obligations of such Seller
to the Purchaser, due or not due, liquidated, contingent or unliquidated
or any transaction or event occurring prior to such termination, or any
transaction or event, the performance of which is required after the Class
C Maturity Date. Except as otherwise expressly provided herein or in any
other Related Document, all undertakings, agreements, covenants,
warranties and representations of or binding upon any Seller, and all
rights of the Purchaser hereunder shall not terminate or expire, but
rather shall survive any such termination or cancellation and shall
continue in full force and effect until the earlier of (i) the Class C
Maturity Date or (ii) the Redemption Date; provided, that the rights and
remedies pursuant to Section 6.2(b), the indemnification and payment
Loan Sale Agreement
10
provisions of Article V, and the provisions of Sections 4.3(c), 6.3 and
6.12 shall be continuing and shall survive any termination of this
Agreement.
Section 6.5 Complete Agreement; Modification of Agreement. This Agreement
constitutes the complete agreement between the parties with respect to the
subject matter hereof, supersedes all prior agreements and understandings
relating to the subject matter hereof and thereof, and may not be modified,
altered or amended except as set forth in Section 6.6.
Section 6.6 Amendments and Waivers. No amendment, modification,
termination or waiver of any provision of this Agreement, or any consent to any
departure therefrom by any party hereto, shall in any event be effective unless
the same shall be in writing and signed by each of the parties hereto and their
respective permitted successors and assigns. No consent or demand in any case
shall, in itself, entitle any party to any other consent or further notice or
demand in similar or other circumstances.
Section 6.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF EXCEPT
SECTION 5-1401 OF THE GENERAL OBLIGATION LAW) AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL
HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF
OR RELATING TO THIS AGREEMENT; PROVIDED, THAT EACH PARTY HERETO
ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY;
PROVIDED FURTHER, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR
OPERATE TO PRECLUDE THE PURCHASER FROM BRINGING SUIT OR TAKING OTHER LEGAL
ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE CEF ASSETS OR ANY
SECURITY FOR THE OBLIGATIONS OF ANY SELLER ARISING HEREUNDER OR TO ENFORCE
A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE PURCHASER. EACH PARTY
HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION
OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES
ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS
TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE
Loan Sale Agreement
11
BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS
ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 6.1 AND THAT SERVICE SO MADE
SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT
THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER
POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY
PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED
AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS
TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND
OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 6.8 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement.
Section 6.9 Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
Section 6.10 Section Titles. The section titles and table of contents
contained in this Agreement are provided for ease of reference only and shall be
without substantive meaning or content of any kind whatsoever and are not a part
of the agreement between the parties hereto.
Section 6.11 No Setoff. No Seller's obligations under this Agreement shall
be affected by any right of setoff, counterclaim, recoupment, defense or other
right such Seller might have against the Purchaser, all of which rights are
hereby expressly waived by such Seller.
Loan Sale Agreement
12
Section 6.12 Confidentiality. Notwithstanding anything herein to the
contrary, there is no restriction (express or implied) on any disclosure or
dissemination of the structure or tax aspects of the transaction contemplated by
the Related Documents. Furthermore, each party hereto acknowledges that it has
no proprietary rights to any tax matter or tax idea contemplated hereby or to
any element of the transaction structure contemplated hereby.
Section 6.13 Further Assurances. (a) Each Seller shall, at its sole cost
and expense, upon request of the Purchaser, promptly and duly authorize, execute
and/or deliver, as applicable, any and all further instruments and documents and
take such further actions that may be necessary or desirable or that the
Purchaser may request to carry out more effectively the provisions and purposes
of this Agreement or to obtain the full benefits of this Agreement and of the
rights and powers herein granted, including authorizing and filing any financing
or continuation statements under the UCC with respect to the ownership interests
or Liens granted hereunder. Each Seller hereby authorizes the Purchaser to file
any such financing or continuation statements without the signature of such
Seller to the extent permitted by applicable law. A carbon, photographic or
other reproduction of this Agreement or of any notice or financing statement
covering the CEF Assets or any part thereof shall be sufficient as a notice or
financing statement where permitted by law. If any amount payable under or in
connection with any of the CEF Assets is or shall become evidenced by any
instrument, such instrument, other than checks and notes received in the
ordinary course of business, shall be duly endorsed in a manner satisfactory to
the Purchaser immediately upon such Seller's receipt thereof and promptly
delivered to or at the direction of the Purchaser.
(b) If any Seller fails to perform any agreement or obligation under
this Section 6.13, the Purchaser may (but shall not be required to) itself
perform, or cause performance of, such agreement or obligation, and the
reasonable expenses of the Purchaser incurred in connection therewith shall be
payable by such Seller upon demand of the Purchaser.
Section 6.14 Accounting Changes. If any Accounting Changes occur and such
changes result in a change in the standards or terms used herein, then the
parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such Accounting Changes with the desired
result that the criteria for evaluating the financial condition of such Persons
and their Subsidiaries shall be the same after such Accounting Changes as if
such Accounting Changes had not been made. If the parties hereto agree upon the
required amendments to this Agreement, then after appropriate amendments have
been executed and the underlying Accounting Change with respect thereto has been
implemented, any reference to GAAP contained herein shall, only to the extent of
such Accounting Change, refer to GAAP consistently applied after giving effect
to the implementation of such Accounting Change. If such parties cannot agree
upon the required amendments within 30 days following the date of implementation
of any Accounting Change, then all financial statements delivered and all
standards and terms used herein shall be prepared, delivered and used without
regard to the underlying Accounting Change.
[Signatures Follow]
Loan Sale Agreement
13
IN WITNESS WHEREOF, the parties have caused this LOAN SALE AGREEMENT to be
executed by their respective duly authorized representatives, as of the date
first above written.
General Electric Capital Corporation
True Legal Name: General Electric Capital
Corporation
Jurisdiction of Organization: Delaware
Executive Offices/Principal Place of 44 Old Ridgebury Road
Business: Danbury, Connecticut 06810
Collateral Locations: Danbury, Connecticut
El Paso, Texas
Mexico
India
Trade Names: GE Capital
FEIN: 13-1500700
Organizational Identification Number: 3174543
General Electric Credit Corporation of
Tennessee
True Legal Name: General Electric Credit
Corporation of Tennessee
Jurisdiction of Organization: Tennessee
Executive Offices/Principal Place of 20225 Water Tower Blvd, Suite 300
Business: Brookfield, WI 53045-3598
Collateral Locations: El Paso, TX
Trade Names: None
FEIN: 06-0876201
Organizational Identification Number: [ ]
Loan Sale Agreement
The Purchaser, GECS and the Sellers have and will continue (in each case,
to the extent within its control) to maintain the Purchaser's separate existence
and identity and have and will continue to take all steps necessary to make it
apparent to third parties that the Purchaser is an entity with assets and
liabilities distinct from those of the Sellers or GECS or any other Subsidiary
or Affiliate of any Seller or GECS. In addition to the foregoing, such steps and
indicia of the Purchaser's separate identity include the following:
(a) The Purchaser does and will maintain its own stationery and other
business forms separate from those of any other Person (including the Sellers
and GECS), and will conduct business in its own name except that certain Persons
may act on behalf of the Purchaser as agents;
(b) The Purchaser maintains and will maintain separate office space of its
own as part of its operations, although such space is in a building shared with
GE Capital. The corporate records, the other books and records, and the other
assets of the Purchaser are and will be segregated from the property of each of
the Sellers and GECS, respectively;
(c) The Sellers will issue consolidated financial statements, which
financial statements will not show CEF Assets that have been sold by such Seller
to the Purchaser as assets of such Seller and its consolidated subsidiaries.
Each of the Sellers, GECS and the Purchaser will take certain actions to
disclose publicly the Purchaser's separate existence and the transactions
contemplated hereby, including through the filing of the UCC Financing
Statements. None of the Sellers, GECS or the Purchaser has concealed or will
conceal from any interested party any transfers contemplated by the Related
Documents;
(d) The Purchaser will not have its own employees, and, as indicated, the
Purchaser's business relating to the CEF Assets may be conducted through the
agents. However, any allocations of direct, indirect or overhead expenses for
items shared between the Purchaser and GE Capital or GECS that are not included
as part of the Servicing Fee are and will be made among such entities to the
extent practical on the basis of actual use or value of services rendered and
otherwise on a basis reasonably related to actual use or the value of services
rendered;
(e) Except as provided in paragraph (d) above regarding the allocation of
certain shared overhead items, the Purchaser does and will pay its own operating
expenses and liabilities from its own funds, except GECS did and will pay all
expenses of the Purchaser incurred in connection with the transactions entered
into pursuant to the Related Documents, including those related to the
Purchaser's organization;
(f) Each of the Sellers, GECS and the Purchaser does and will maintain its
assets and liabilities in such a manner that it is not costly or difficult to
segregate, ascertain or otherwise identify the Purchaser's individual assets and
liabilities from those of the Sellers or GECS or from those of any other Person
or entity, including any other subsidiary or affiliate of the Sellers or GECS.
Except as set forth below, the Purchaser does and will maintain its own books of
account and corporate records separate from each of the Sellers and GECS or any
other
Loan Sale Agreement
Subsidiary or Affiliate of the Sellers and GECS. Monetary transactions,
including those with each other, are and will continue to be properly reflected
in their respective financial records. The Purchaser does not and will not
commingle or pool its funds or other assets or liabilities with those of any
Seller or GECS or any other Subsidiary or Affiliate of the Sellers or GECS
except as specifically provided in the Related Documents with respect to the
temporary commingling of Collections and with respect to, if applicable, any
such Person's retention, in their capacity as agent or Custodian for the
Purchaser, of the books and records pertaining to the CEF Assets. However, any
such agent or Custodian will not generally make the books and records relating
to the CEF Assets available to any of creditors or other interested persons of
the Purchaser, the Sellers or GECS. The Purchaser does not and will not maintain
joint bank accounts or other depository accounts to which any Seller or GECS or
any other Subsidiary or Affiliate of the Sellers or GECS (other than in their
capacity as agent for the Purchaser, if applicable) has independent access;
(g) The Purchaser will strictly observe corporate formalities, and the
Sellers and GECS will strictly observe corporate formalities with respect to its
dealings with the Purchaser. Specifically, no transfer of assets between any of
the Sellers and GECS, on the one hand, and the Purchaser, on the other, will be
made without adherence to corporate formalities;
(h) The transactions among the Purchaser and the Sellers or GECS,
including, in the case of GE Capital, the terms governing any servicer advances
and the amount and payment of the servicing fee, are on terms and conditions
that are consistent with those of arm's-length relationships. None of the
Sellers or GECS is or will be, or holds or will hold itself out to be,
responsible for the debts of the Purchaser, except as provided in the
representations made by the Sellers (including, if applicable, as a servicer or
a sub-servicer) to the Purchaser relating to the CEF Assets and their prior
ownership and servicing thereof. The Purchaser will not guaranty the debts of
any Seller or GECS;
(i) All distributions made by the Purchaser to GECS as its sole member
shall be in accordance with applicable law;
(j) Any other transactions between the Purchaser and any Seller or GECS
permitted by (although not expressly provided for in) the Related Documents have
been and will be fair and equitable to each of the parties, have been and will
be the type of transaction that would be entered into by a prudent Person or
entity, and have been and will be on terms that are at least as favorable as may
be obtained from a third party Person; and
(k) The Purchaser is not named, or has entered into any agreement to be
named, directly or indirectly, as a direct or contingent beneficiary or loss
payee on any insurance policy covering the assets of any Seller or GECS.
* * * * * *
Loan Sale Agreement
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions...................................................... 1
Section 1.2 Rules of Construction............................................ 1
ARTICLE II
SALES OF CEF ASSETS
Section 2.1 Sale of Loans.................................................... 1
Section 2.2 Grant of Security Interest....................................... 2
Section 2.3 Sale Price....................................................... 2
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions to Sale............................................... 3
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.1 Representations and Warranties of the Sellers.................... 4
Section 4.2 Affirmative Covenants of the Sellers............................. 5
Section 4.3 Negative Covenants of the Sellers................................ 7
ARTICLE V
INDEMNIFICATION
Section 5.1 Indemnification.................................................. 7
ARTICLE VI
MISCELLANEOUS
Section 6.1 Notices.......................................................... 8
Section 6.2 No Waiver; Remedies.............................................. 9
Section 6.3 Successors and Assigns........................................... 10
Section 6.4 Termination; Survival of Obligations............................. 10
Section 6.5 Complete Agreement; Modification of Agreement.................... 11
Section 6.6 Amendments and Waivers........................................... 11
Section 6.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL..... 11
Section 6.8 Counterparts..................................................... 12
Section 6.9 Severability..................................................... 12
Section 6.10 Section Titles................................................... 12
Section 6.11 No Setoff........................................................ 12
Schedule I Schedule of GECC Loans
Schedule II Schedule of GECT Loans
Exhibit 4.2(f) Separate Indemnity Provisions
-ii-
FINAL VERSION
ANNEX A
to
LOAN SALE AGREEMENT
dated as of
November 16, 2004
Annex A to
Loan Sale Agreement
DEFINITIONS AND INTERPRETATION
SECTION 1. Definitions and Conventions. Capitalized terms used in the Sale
Agreement shall have (unless otherwise provided elsewhere therein) the following
respective meanings:
"Accounting Changes" means, with respect to any Person, an adoption of
GAAP different from such principles previously used for reporting purposes by
such Person as defined in the Accounting Principles Board Opinion Number 20.
"Administration Agreement" means the Administration Agreement, dated as of
November 16, 2004, between the Administrator and the Issuer.
"Administrator" means General Electric Capital Corporation, a Delaware
corporation, in its capacity as Administrator under the Administration
Agreement, or any other Person designated as a successor administrator.
"Adverse Claim" means any claim of ownership or any Lien, other than any
ownership interest or Lien created under the Sale Agreement or the Purchase and
Sale Agreement, any Lien created under the Indenture or any Permitted
Encumbrances.
"Affiliate" means, with respect to any Person, (a) each Person that,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, five percent (5%) or more of the stock having
ordinary voting power in the election of directors of such Person, (b) each
Person that controls, is controlled by, or is under common control with such
Person, or (c) each of such Person's officers, directors, joint venturers and
partners. For the purposes of this definition, "control" of a Person means the
possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"Annual Percentage Rate" or "APR" of a Loan means, the interest rate or
annual rate of finance charges stated in or, if not explicitly stated, the
implicit finance charge used by the Servicer to calculate periodic payments with
respect to the related Loan.
"Appendices" means, with respect to any Related Document, all exhibits,
schedules, annexes and other attachments thereto, or expressly identified
thereto.
"Bankruptcy Code" means the provisions of Title 11 of the United States
Code, 11 U.S.C. Sections 101 et seq. as amended from time to time.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which banks are required or permitted to be closed in the State of New York or
the State of Connecticut.
"CEF Assets" is defined in Section 2.1(a) of the Sale Agreement.
"CEF Cash Purchase Price" means, with respect to the sale of CEF Assets
sold and transferred by any Seller on the Closing Date, the portion of the sale
price therefor determined by
Annex A to
Loan Sale Agreement
the applicable Seller and the Purchaser pursuant to Section 2.3(a) of the Sale
Agreement to be paid in cash.
"CEF Limited Liability Company Agreement" means the Second Amended and
Restated Limited Liability Company Agreement of the Purchaser dated as of
September 25, 2003, as the same may be amended and supplemented from time to
time.
"Class C Maturity Date" is defined in the Indenture.
"Closing Date" means November 16, 2004.
"Collection Period" means, with respect to any Payment Date, the calendar
month preceding the month in which the Payment Date occurs (or, if for the first
Payment Date, the period from and including the day after the Cut-off Date to
and including the last day of the calendar month preceding the calendar month in
which the first Payment Date occurs).
"Collections" means, with respect to any Payment Date all payments made by
or on behalf of the Obligors received during the related Collection Period, any
Recoveries received during the related Collection Period, any proceeds from
insurance policies covering the Equipment or related Obligor received during the
related Collection Period, Liquidation Proceeds received during the related
Collection Period, and payments made by a lessee pursuant to its obligation (if
any) to pay the Termination Value pursuant to the related Loan received during
the related Collection Period; provided, that "Collections" for the first
Collection Period shall exclude interest accrued before November 1, 2004.
"Consumer Contract" means a contract entered into by an Obligor in
connection with a transaction in which the Obligor incurs the related
indebtedness primarily for personal, family, or household purposes.
"Credit and Collection Policies" or "Credit and Collection Policy" means
the policies, practices and procedures adopted by the Issuer on the Closing Date
for providing equipment loans secured by transportation equipment, industrial
equipment, furniture and fixtures, construction equipment, medical and dental
equipment, technology and telecommunications equipment, maritime assets or other
equipment, including the policies and procedures for determining the
creditworthiness of Obligors and the extension of credit to Obligors, or
relating to the maintenance of such types of loans and collections on such types
of loans.
"Cut-off Date" means, with respect to Loans secured by medical and dental
Equipment, September 24, 2004, and with respect to all other Loans, September
25, 2004.
"Dollars" or "$" means lawful currency of the United States of America.
"Eligible Loan" means as to each CEF Asset as of the Closing Date:
(i) Characteristics of CEF Assets. Each CEF Asset: (A) was either
originated in the United States of America by GE Capital in connection
with the financing or lease of Equipment in the ordinary course of GE
Capital's business or acquired by GE Capital in the ordinary course of its
business, and, in each case, was fully and properly executed by
Annex A to
Loan Sale Agreement
2
the parties thereto, (B) has created a valid, subsisting and enforceable
first priority security interest (except to the extent the Equipment
secures any loan that is cross-collateralized with such CEF Asset) in the
Equipment in favor of GE Capital or GECT, as applicable, that, as of the
Closing Date, has been assigned by GE Capital or GECT, as applicable, to
Purchaser, and (C) contains customary and enforceable provisions such that
the rights and remedies of the holder thereof are adequate for realization
against the collateral of the benefits of the security.
(ii) Schedule of CEF Assets. The information set forth on Schedule I
and Schedule II of the Loan Sale Agreement is true and correct in all
material respects as of the opening of business on the Cutoff Date and no
selection procedures believed by the applicable Seller to be adverse to
the interests of the Purchaser were utilized in selecting the CEF Assets.
The computer tape regarding the CEF Assets made available to Purchaser and
its assigns is true and correct in all respects.
(iii) Compliance with Law. Each CEF Asset and the sale or lease of
the related Equipment complied in all material respects at the time it was
originated or made and at the execution of this Agreement with all
requirements of applicable Federal, State and local laws and regulations
thereunder.
(iv) Binding Obligation. Each CEF Asset represents the genuine,
legal, valid and binding payment obligation in writing of the Obligor,
enforceable by the holder thereof in accordance with its terms.
(v) No Government Obligor. None of the CEF Assets is due from the
United States of America or any State or from any agency, department or
instrumentality of the United States of America or any State.
(vi) Security Interest in the Equipment. Immediately prior to the
sale, assignment and transfer thereof, each CEF Asset shall be secured by
a validly perfected first priority security interest (as defined in
Section 1-201(37) of the UCC) in the Equipment (except to the extent the
Equipment secures any loan that is cross-collateralized with such CEF
Asset) in favor of the applicable Seller as secured party or all necessary
and appropriate actions have been commenced that would result in the valid
perfection of a first priority security interest in the Equipment in favor
of such Seller as secured party.
(vii) CEF Assets in Force. No CEF Asset has been satisfied,
subordinated or rescinded, nor has any Equipment been released from the
Lien granted by the related CEF Asset in whole or in part.
(viii) No Amendment or Waiver. No provision of a CEF Asset has been
waived, altered or modified in any respect, except pursuant to a document,
instrument or writing included in the Loan Files and no such amendment,
waiver, alteration or modification causes such CEF Asset not to be an
Eligible Loan.
(ix) No Defenses. No right of rescission, setoff, counterclaim or
defense has been asserted or threatened or exists with respect to any CEF
Asset.
Annex A to
Loan Sale Agreement
3
(x) Lawful Assignment. No CEF Asset has been originated in, or is
subject to the laws of, any jurisdiction under which the sale, transfer
and assignment of such CEF Asset or any CEF Asset under the Loan Sale
Agreement would be unlawful.
(xi) All Filings Made. All filings (including UCC filings) necessary
in any jurisdiction to give Purchaser a first priority perfected ownership
interest in the CEF Asset have been made (except to the extent the
Equipment secures any loan that is cross-collateralized with such CEF
Asset).
(xii) One Original. There is only one original executed copy of each
CEF Asset.
(xiii) Insurance. The Obligor on each CEF Asset is required to
maintain physical damage insurance covering the Equipment in accordance
with GE Capital's normal requirements.
(xiv) No Bankruptcies. No Obligor on any CEF Asset as of the Cutoff
Date was noted in the related Loan File as being the subject of a
bankruptcy proceeding.
(xv) No Repossessions. None of the Equipment securing any CEF Asset
is in repossession status.
(xvi) Instrument or Chattel Paper. Each CEF Asset constitutes an
"instrument" or "chattel paper" as defined in the UCC of each State the
law of which governs the perfection of the interest granted in it and/or
the priority of such perfected interest.
(xvii) U.S. Obligors. None of the CEF Assets is denominated and
payable in any currency other than United States Dollars or is due from
any Person that does not have a mailing address in the United States of
America.
(xviii) No Delinquent Loan. None of the CEF Assets is more than 30
days past due.
(xix) No Consumer Contract. None of the CEF Assets constitutes a
Consumer Contract.
(xx) Finance Lease. With respect to each CEF Asset that is in form a
lease rather than a secured loan, the terms of such CEF Asset provides
that it is non-cancelable and that, by the end of the lease term, the
lessee may elect to purchase the related Equipment upon the exercise of a
nominal purchase option that satisfies Section 1-201(37)(a)(iv) of the
UCC.
"Equipment" means any transportation equipment, industrial equipment,
furniture and fixtures, construction equipment, medical and dental equipment,
technology and telecommunications equipment, maritime assets or other equipment,
together with all accessions thereto securing an Obligor's indebtedness under
the respective Loan.
"Event of Default" is defined in Section 5.1 of the Indenture.
Annex A to
Loan Sale Agreement
4
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect on the Closing Date, modified by Accounting Changes as
GAAP is further defined in Section 2(a) of this Annex A.
"GE Capital" is defined in the preamble of the Sale Agreement.
"GECS" means General Electric Capital Services, Inc., a Delaware
corporation or any successors or assigns thereto.
"GECT" is defined in the preamble of the Sale Agreement.
"Governmental Authority" means any nation or government, any state,
county, city, town, district, board, bureau, office, commission, any other
municipality or other political subdivision thereof (including any educational
facility, utility or other Person operated thereby), and any agency, department
or other entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Indemnified Amounts" means, with respect to any Person, any and all
suits, actions, proceedings, claims, damages, losses, liabilities and expenses
(including reasonable attorneys' fees and disbursements and other costs of
investigation or defense, including those incurred upon any appeal).
"Indenture" means the Indenture, dated November 16, 2004, between the
Issuer and the Indenture Trustee, as the same may be amended and supplemented
from time to time.
"Indenture Trustee" means JPMorgan Chase Bank, N.A., not in its individual
capacity but solely as Indenture Trustee under the Indenture, or any successor
Indenture Trustee under the Indenture.
"Investment Company Act" means the provisions of the Investment Company
Act of 1940, 15 U.S.C. Sections 80a et seq., and any regulations promulgated
thereunder.
"Issuer" means GE Commercial Equipment Financing LLC Series 2004-1, a
Delaware limited liability company, until a successor replaces it and,
thereafter, means the successor and, for purposes of any provision contained in
the Indenture and required by the Trust Indenture Act of 1939, each other
obligor on the Notes.
"Issuer Limited Liability Company Agreement" means the Limited Liability
Company Agreement of the Issuer, dated as of November 16, 2004, among the
Managing Member and the Issuer, as the same may be amended or supplemented from
time to time.
"Lien" means a security interest (as such term is defined in Section 1-201
of Article 1 of the UCC), lien, charge, pledge, equity or encumbrance of any
kind, other than tax liens, mechanics' liens and any liens that attach to the
related Loan by operation of law as a result of any act or omission by the
related Obligor.
Annex A to
Loan Sale Agreement
5
"Liquidated Loan" means any Loan (i) liquidated through the sale or other
disposition of all or a portion of the related Equipment, (ii) that has been
charged off in accordance with the Credit and Collection Policy without
realizing upon the Equipment or (iii) the due date of any Scheduled Payment of
which has been extended, at any time after the Cut-off Date for an aggregate
period of 12 or more calendar months.
"Liquidation Proceeds" means, with respect to any Liquidated Loan, the
amounts collected in respect thereof from whatever source (including the
proceeds of insurance policies with respect to the related Equipment or Obligor)
during the Collection Period in which it became a Liquidated Loan, net of the
sum of any amounts expended in connection with such liquidation and any amounts
required by law to be remitted to the Obligor on such Liquidated Loan or any
creditor of such Obligor to the extent required by applicable law or agreement.
"Litigation" means, with respect to any Person, any action, claim,
lawsuit, demand, investigation or proceeding pending or threatened against such
Person before any court, board, commission, agency or instrumentality of any
federal, state, local or foreign government or of any agency or subdivision
thereof or before any arbitrator or panel of arbitrators.
"Loan" means any Loan included in Schedules of Loans and any agreement
(including any invoice) pursuant to, or under which, an Obligor shall be
obligated to make payments with respect to any Loan.
"Loan Files" is defined in Section 2.1 of the Sale Agreement.
"Loan Value" is defined in the Purchase and Sale Agreement.
"Managing Member" means CEF Equipment Holding, L.L.C., a Delaware limited
liability company or any successor Managing Member under the Issuer Limited
Liability Company Agreement.
"Material Adverse Effect" means, with respect to any Person, a material
adverse effect on (a) the business, assets, liabilities, operations, prospects
or financial or other condition of such Person, (b) the ability of such Person
to perform any of its obligations under the Related Documents in accordance with
the terms thereof, (c) the validity or enforceability of any Related Document or
the rights and remedies of such Person under any Related Document or (d) the
Loans, as applicable, therefor, any interest related thereto or the ownership
interests or Liens of such Person thereon or the priority of such interests or
Liens.
"Note Depository Agreement" means the agreement among the Issuer, the
Indenture Trustee and The Depository Trust Company, as the initial clearing
agency, dated as of the Closing Date.
"Notes" means the notes issued under the Indenture.
"Obligor" means, as to each Loan, any Person who owes payments under the
Loan.
Annex A to
Loan Sale Agreement
6
"Payment Date" means, with respect to each Collection Period, the 20th day
of the calendar month following the end of that Collection Period, or, if such
day is not a Business Day, the next Business Day, commencing on December 20,
2004.
"Permitted Encumbrances" means the following encumbrances: (a) Liens for
taxes or assessments or other governmental charges not yet due and payable; (b)
pledges or deposits securing obligations under workmen's compensation,
unemployment insurance, social security or public liability laws or similar
legislation; (c) pledges or deposits securing bids, tenders, contracts (other
than contracts for the payment of money) or leases to which a Seller or any
Affiliate thereof is a party as lessee made in the ordinary course of business;
(d) deposits securing statutory obligations of a Seller or any Affiliate
thereof; (e) inchoate and unperfected workers', mechanics', suppliers' or
similar Liens arising in the ordinary course of business; (f) carriers',
warehousemen's or other similar possessory Liens arising in the ordinary course
of business and securing liabilities in an outstanding aggregate amount not in
excess of $100,000 at any one time; (g) deposits securing, or in lieu of,
surety, appeal or customs bonds in proceedings to which a Seller or any
Affiliate thereof is a party; (h) any attachment or judgment Lien not
constituting an Event of Default; (i) presently existing or hereinafter created
Liens in favor of the Purchaser, the Issuer or the Indenture Trustee; and (j)
presently existing or hereinafter created Liens on personal property or
Equipment which are subordinate to or pari passu with the Liens in favor of the
Purchaser, the Issuer or the Indenture Trustee.
"Person" means any individual, sole proprietorship, partnership, joint
venture, unincorporated organization, trust, association, corporation (including
a business trust), limited liability company, institution, public benefit
corporation, joint stock company, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Precomputed Loan" means any Loan under which the portion of a payment
allocable to earned interest (which may be referred to in the related Loan as an
add-on finance charge) and the portion allocable to principal are determined
according to the sum of periodic balances, the sum of monthly payments or any
equivalent method or are monthly actuarial loans.
"Purchase Amount" means, as of the close of business on the last day of a
Collection Period, an amount equal to the Loan Value of the applicable Loan, as
of the first day of the immediately following Collection Period (or, with
respect to any applicable Loan that is a Liquidated Loan, as of the day
immediately prior to such Loan becoming a Liquidated Loan less any Liquidation
Proceeds actually received by the Issuer) plus interest accrued and unpaid
thereon as of such last day at a rate per annum equal to the APR for such Loan.
"Purchase and Sale Agreement" means the Loan Purchase and Sale Agreement
dated as of November 16, 2004, by and between the Transferor and the Issuer as
the same may be amended from time to time.
"Purchaser" is defined in the preamble to the Sale Agreement.
"Purchaser Indemnified Person" is defined in Section 5.1 of the Sale
Agreement.
"Records" means all notes, leases, security agreements and other
documents, books, records and other information (including computer programs,
tapes, disks, data processing
Annex A to
Loan Sale Agreement
7
software and related property and rights) prepared and maintained by any Seller,
the Servicer, any Sub-Servicer or the Issuer with respect to the Loans and the
Obligors thereunder, and the other CEF Assets.
"Recoveries" means, with respect to any Liquidated Loan, monies collected
in respect thereof, from whatever source (other than from the sale or other
disposition of the Equipment), in any Collection Period after such Loan became a
Liquidated Loan.
"Redemption Date" is defined in the Indenture.
"Related Documents" means the Sale Agreement, the Purchase and Sale
Agreement, the Servicing Agreement, the Issuer Limited Liability Company
Agreement, the CEF Limited Liability Company Agreement, the Administration
Agreement, the Note Depository Agreement, the Swap Agreement, and all other
agreements, instruments, and documents and including all other pledges, powers
of attorney, consents, assignments, contracts, notices, and all other written
matter whether heretofore, now or hereafter executed by or on behalf of any
Person, or any employee of any Person, and delivered in connection with any of
the foregoing. Any reference in the foregoing documents to a Related Document
shall include all Appendices thereto, and all amendments, restatements,
supplements or other modifications thereto, and shall refer to such Related
Document as the same may be in effect at any and all times such reference
becomes operative.
"Related Security" means with respect to any Loan: (a) any interest
(including security interests), if any, in the related Equipment; (b) all
guarantees, insurance or other agreements or arrangements of any kind from time
to time supporting or securing payment of such Loan (including rights (if any)
to receive proceeds on insurance policies covering the Obligors); and (c) all
Records relating to such Loan.
"Sale Agreement" means the Loan Sale Agreement, dated November 16, 2004,
among GE Capital, GECT and the Purchaser, as the same may be amended or
supplemented from time to time.
"Scheduled Payment" on a Loan means that portion of the payment required
to be made by the Obligor during any Collection Period sufficient to amortize
the principal balance under (x) in the case of a Precomputed Loan, the actuarial
method or (y) in the case of a Simple Interest Loan, the simple interest method,
in each case, over the term of the Loan and to provide interest at the APR,
provided that Termination Values shall also constitute Scheduled Payments.
"Schedules of Loans" means the schedules of Loans attached as Schedule I
and Schedule II to the Sale Agreement (which schedules may be in the form of
microfiche).
"Securities Act" means the provisions of the Securities Act of 1933, 15
U.S.C. Sections 77a et seq., and any regulations promulgated thereunder.
"Securities Exchange Act" means the provisions of the Securities Exchange
Act of 1934, 15 U.S.C. Sections 78a et seq., and any regulations promulgated
thereunder.
Annex A to
Loan Sale Agreement
8
"Seller" means GE Capital and GECT, each in its capacity as a seller
hereunder, their respective successors and assigns.
"Servicer" means General Electric Capital Corporation in its capacity as
Servicer under the Servicing Agreement, or any other Person designated as a
Successor Servicer under such agreement.
"Servicing Agreement" means the Servicing Agreement dated as of November
16, 2004, by and between the Issuer and the Servicer, as the same may be amended
or supplemented from time to time.
"Servicing Fee" is defined in the Servicing Agreement.
"Simple Interest Loan" means any Loan under which the portion of a payment
allocable to interest and the portion allocable to principal is determined by
allocating a fixed level payment between principal and interest, such that such
payment is allocated first to the accrued and unpaid interest at the Annual
Percentage Rate for such Loan on the unpaid principal balance and the remainder
of such payment is allocable to principal.
"Solvent" means, with respect to any Person on a particular date, that on
such date (a) the fair value of the property of such Person is greater than the
total amount of liabilities, including contingent liabilities, of such Person;
(b) the present fair salable value of the assets of such Person is not less than
the amount that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured; (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature; and (d) such
Person is not engaged in a business or transaction, and is not about to engage
in a business or transaction, for which such Person's property would constitute
an unreasonably small capital. The amount of contingent liabilities (such as
Litigation, guaranties and pension plan liabilities) at any time shall be
computed as the amount that, in light of all the facts and circumstances
existing at the time, represents the amount that can reasonably be expected to
become an actual or matured liability.
"Stock" means all shares, options, warrants, membership interests in a
limited liability company, general or limited partnership interests or other
equivalents (regardless of how designated) of or in a corporation, partnership
or equivalent entity whether voting or nonvoting, including common stock,
preferred stock or any other "equity security" (as such term is defined in Rule
3a11-1 of the General Rules and Regulations promulgated by the Securities and
Exchange Commission under the Securities Exchange Act).
"Stockholder" means, with respect to any Person, each holder of Stock of
such Person.
"Sub-Servicer" means any Person with whom the Servicer enters into a
Sub-Servicing Agreement.
"Sub-Servicing Agreement" means any written contract entered into between
a Servicer and any Sub-Servicer pursuant to and in accordance with the Servicing
Agreement.
Annex A to
Loan Sale Agreement
9
"Subsidiary" means, with respect to any Person, any corporation or other
entity (a) of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other Persons
performing similar functions are at the time directly or indirectly owned by
such Person or (b) that is directly or indirectly controlled by such Person
within the meaning of control under Section 15 of the Securities Act.
"Successor Servicer" is defined in Section 6.2 of the Servicing Agreement.
"Swap Agreement" is defined in the Indenture.
"Termination Value" means the "Termination Value" (if any) payable by
lessee pursuant to the applicable Loan.
"Transfer Date" is defined in the Indenture.
"Transferor" means CEF Equipment Holding, L.L.C. a Delaware limited
liability company, as seller under the Purchase and Sale Agreement.
"UCC" means, with respect to any jurisdiction, the Uniform Commercial Code
as the same may, from time to time, be enacted and in effect in such
jurisdiction.
SECTION 2. Other Interpretive Matters. All terms defined directly or by
incorporation in the Sale Agreement shall have the defined meanings when used in
any certificate or other document delivered pursuant thereto unless otherwise
defined therein. For purposes of the Sale Agreement (including in this Annex A)
and all related certificates and other documents, unless the context otherwise
requires: (a) accounting terms not otherwise defined in such Agreement, and
accounting terms partly defined in such Agreement to the extent not defined,
shall have the respective meanings given to them under generally accepted
accounting principles; and unless otherwise provided, references to any month,
quarter or year refer to a fiscal month, quarter or year as determined in
accordance with the GE Capital fiscal calendar; (b) terms defined in Article 9
of the UCC and not otherwise defined in such Agreement are used as defined in
that Article; (c) references to any amount as on deposit or outstanding on any
particular date means such amount at the close of business on such day; (d) the
words "hereof," "herein" and "hereunder" and words of similar import refer to
such Agreement (or the certificate or other document in which they are used) as
a whole and not to any particular provision of such Agreement (or such
certificate or document); (e) references to any Section, Schedule or Exhibit are
references to Sections, Schedules and Exhibits in or to such Agreement (or the
certificate or other document in which the reference is made), and references to
any paragraph, subsection, clause or other subdivision within any Section or
definition refer to such paragraph, subsection, clause or other subdivision of
such Section or definition; (f) the term "including" means "including without
limitation"; (g) references to any law or regulation refer to that law or
regulation as amended from time to time and include any successor law or
regulation; (h) references to any agreement refer to that agreement as from time
to time amended, restated or supplemented or as the terms of such agreement are
waived or modified in accordance with its terms; (i) references to any Person
include that Person's successors and assigns; and (j) headings are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
Annex A to
Loan Sale Agreement
10
EXHIBIT 4(d)
EXECUTION VERSION
LOAN PURCHASE AND SALE AGREEMENT
Dated as of November 16, 2004
between
CEF EQUIPMENT HOLDING, L.L.C.,
as Seller
and
GE COMMERCIAL EQUIPMENT
FINANCING LLC, SERIES 2004-1,
as Purchaser
Loan Purchase
and Sale Agreement
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions..................................................... 1
Section 1.2 Rules of Construction........................................... 1
ARTICLE II
SALES OF PURCHASER ASSETS
Section 2.1 Sale of Loans................................................... 1
Section 2.2 Grant of Security Interest...................................... 2
Section 2.3 Sale Price...................................................... 2
Section 2.4 Removal of Loans................................................ 2
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions to Sale.............................................. 3
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.1 Representations and Warranties of the Seller.................... 4
Section 4.2 Affirmative Covenants of the Seller............................. 6
Section 4.3 Negative Covenants of the Seller................................ 7
ARTICLE V
INDEMNIFICATION
Section 5.1 Indemnification................................................. 8
ARTICLE VI
CLEAN-UP CALL
Section 6.1 Clean-up Call................................................... 8
ARTICLE VII
MISCELLANEOUS
Section 7.1 Notices......................................................... 9
Section 7.2 No Waiver; Remedies............................................. 10
Section 7.3 Successors and Assigns.......................................... 10
Section 7.4 Termination; Survival of Obligations............................ 10
Section 7.5 Complete Agreement; Modification of Agreement................... 11
Section 7.6 Amendments and Waivers.......................................... 11
Section 7.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.... 11
Section 7.8 Counterparts.................................................... 12
Section 7.9 Severability.................................................... 13
Section 7.10 Section Titles.................................................. 13
-i-
TABLE OF CONTENTS
(continued)
PAGE
Section 7.11 No Setoff....................................................... 13
Section 7.12 Confidentiality................................................. 13
Section 7.13 Further Assurances.............................................. 13
Section 7.14 Accounting Changes.............................................. 13
Schedule 4.1(b) UCC Information
Schedule I Schedule of CEF Loans
Exhibit 4.2(f) Separate Indemnity Provisions
Annex A Definitions and Interpretations
-ii-
This LOAN PURCHASE AND SALE AGREEMENT ("Agreement" or "Purchase and Sale
Agreement") is entered into as of November 16, 2004, by and between CEF
EQUIPMENT HOLDING, L.L.C. (the "Seller"), a Delaware limited liability company
and GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES 2004-1, a Delaware limited
liability company (the "Purchaser").
In consideration of the premises and the mutual covenants hereinafter
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in Section 1 of Annex A to this
Agreement.
Section 1.2 Rules of Construction. For purposes of this Agreement, the
rules of construction set forth in Section 2 of Annex A shall govern. All
Annexes, Exhibits and Schedules hereto, are incorporated herein by reference
and, taken together with this Agreement, shall constitute but a single
agreement.
ARTICLE II
SALES OF PURCHASER ASSETS
Section 2.1 Sale of Loans. (a) Subject to the terms and conditions hereof,
the Seller does hereby sell, transfer, assign, set over and otherwise convey to
the Purchaser, without recourse (subject to the obligations herein) all right,
title and interest of the Seller in:
(i) the Loans, including the Loan Files, and all obligations of
the Obligors thereunder, including the right to payment of any
interest accrued and to accrue from and after November 1, 2004
or finance charges and other obligations of such Obligor with
respect thereto due or to become due on or after the Cutoff
Date;
(ii) all Related Security and Collections with respect thereto;
(iii) the Loan Sale Agreement;
(iv) all other property now or hereafter in the possession or
custody of, or in transit to, the Servicer, any Sub-Servicer
or the Seller relating to any of the foregoing;
(v) all Records with respect to any of the foregoing; and
(vi) all proceeds of the foregoing (collectively the "Purchaser
Assets").
Loan Purchase
and Sale Agreement
(b) On or before the Closing Date, the Seller shall (i) indicate in
its computer files that the Purchaser Assets have been sold to the
Purchaser pursuant to this Agreement by so identifying the Purchaser
Assets with an appropriate notation and (ii) deliver to the Purchaser or
its designee the following documents (collectively, the "Loan Files"):
(i) the original fully executed copy of the Loan;
(ii) a record or facsimile of the original credit application fully
executed by the Obligor;
(iii) the original certificate of title or file stamped copy of the
UCC financing statement or such other documents evidencing the
security interest of the Purchaser in the Equipment; and
(iv) any and all other documents relating to a Loan, an Obligor or
any of the Equipment.
Section 2.2 Grant of Security Interest. The parties hereto intend that the
sale pursuant to Section 2.1 hereof shall constitute a purchase and sale and not
a loan. Notwithstanding anything to the contrary set forth in this Section 2.2,
if a court of competent jurisdiction determines that the sale provided for
herein constitutes a loan and not a purchase and sale, then the parties hereto
intend that this Agreement shall constitute a security agreement under
applicable law and that the Seller shall be deemed to have granted, and the
Seller hereby grants, to the Purchaser a first priority lien and security
interest in and to all of the Seller's right, title and interest in, to and
under the Purchaser Assets. The possession by the Purchaser of notes and such
other goods, money, documents, chattel paper or certificated securities shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to the Uniform Commercial Code in force in the
relevant jurisdiction (including, without limitation, Section 9-313(c)(1)
thereof). Notifications to persons holding such property, and acknowledgments,
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, bailees or
agents (as applicable) of the Purchaser for the purpose of perfecting such
security interest under applicable law (except that nothing in this sentence
shall cause any Person to be deemed to be an agent of the Purchaser for any
purpose other than for perfection of such security interest unless, and then
only to the extent, expressly appointed and authorized by the Purchaser in
writing).
Section 2.3 Sale Price. On the Closing Date, the Purchaser shall, upon
satisfaction of the applicable conditions set forth in Article III, issue and
exchange the Notes (the "Purchaser Purchase Price") as consideration for the
Purchaser Assets sold and transferred by the Seller to the Purchaser pursuant to
Section 2.1 hereof.
Section 2.4 Removal of Loans. (a) In the event a Loan becomes a Delinquent
Loan or the Obligor thereon is subject to a bankruptcy proceeding, the Seller
shall be granted an assignable option (a "Purchase Option") to purchase such
Delinquent Loan from the Purchaser at a price (the "Option Price") equal to the
Purchase Amount. The Seller may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any such Loan to any party at any time after the
related Loan becomes a Delinquent Loan or the Obligor thereon is subject to a
Loan Purchase and Sale Agreement
2
bankruptcy proceeding. The Seller shall notify the Purchaser of such transfer
and such notice shall include the transferee's name, address, telephone number,
facsimile number and appropriate contact person(s) and shall be acknowledged in
writing by the transferee. If not exercised earlier, the Purchase Option with
respect to any such Loan shall automatically terminate upon (i) in the case of a
Delinquent Loan, the related Obligor's cure of all defaults on the Loan, (ii)
the acquisition by, or on behalf of, the Issuer of the related Equipment through
repossession, (iii) upon a repurchase of a Loan due to the Seller's breach of a
representation with respect to such Loan or (iv) on the Business Day immediately
preceding the last day of the calendar quarter ending at least ten (10) days
after such Loan became a Defaulted Loan. The aggregate Outstanding Principal
Balance of Loans with respect to which the Seller may exercise its Purchase
Option at any time before the Redemption Date shall not exceed 10% of the
aggregate Outstanding Principal Balance of the Loans as of the Cutoff Date.
(b) Upon a Loan becoming a Delinquent Loan or the Obligor thereon
becoming subject to a bankruptcy proceeding, the Seller may exercise the
Purchase Option by providing the Purchaser at least five days prior
written notice thereof (the "Purchase Option Notice"), which notice shall
specify a cash exercise price at least equal to the Option Price. The
Purchase Option Notice shall be delivered in the manner specified in
Section 2.4(a). The exercise of any Purchase Option pursuant to this
clause (b) shall be irrevocable.
(c) Upon exercise of a Purchase Option, the Seller shall be required
to pay the Option Price specified in its Purchase Option Notice to the
Purchaser within 10 Business Days of exercising its Purchase Option. The
proceeds of any sale of such Loan, after deduction of the expenses of such
sale incurred in connection therewith, shall be deposited by the Seller no
later than the day before the next Payment Date.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions to Sale. The sale hereunder shall be subject to
satisfaction of each of the following conditions precedent (any one or more of
which, except clause (e) below, may be waived in writing by the Purchaser) as of
the Closing Date:
(a) This Agreement or counterparts hereof shall have been duly
executed by, and delivered to, the Seller and the Purchaser, and the
Purchaser shall have received such documents, instruments, agreements and
legal opinions as the Purchaser shall reasonably request in connection
with the transactions contemplated by this Agreement, each in form and
substance reasonably satisfactory to the Purchaser.
(b) The Purchaser shall have received satisfactory evidence that the
Seller has obtained all required consents and approvals of all Persons,
including all requisite Governmental Authorities, to the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby.
Loan Purchase and Sale Agreement
3
(c) The Seller shall be in compliance in all material respects with
all applicable foreign, federal, state and local laws and regulations,
including those specifically referenced in Section 4.2(c), except to the
extent that the failure to so comply, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(d) The representations and warranties of the Seller contained
herein or in any other Related Document shall be true and correct in all
material respects (or, to the extent any such representation or warranty
is qualified by a materiality standard, such representation or warranty
shall be true and correct) as of the Closing Date, both before and after
giving effect to such sale, except to the extent that any such
representation or warranty expressly relates to an earlier date and except
for changes therein expressly permitted by this Agreement.
(e) The Seller shall be in compliance with each of its covenants and
other agreements set forth herein.
(f) The Seller shall have taken such other action, including
delivery of approvals, consents, opinions, documents and instruments to
the Purchaser as the Purchaser may reasonably request.
The consummation by the Seller of the sale of Purchaser Assets on the Closing
Date shall be deemed to constitute, as of the Closing Date, a representation and
warranty by the Seller that the conditions in clauses (d), (e) and (f) of this
Section 3.1 have been satisfied.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.1 Representations and Warranties of the Seller. To induce the
Purchaser to purchase the Purchaser Assets, the Seller makes the following
representations and warranties to the Purchaser, as of the Closing Date, each
and all of which shall survive the execution and delivery of this Agreement.
(a) Valid Existence; Power and Authority. The Seller (i) is a
limited liability company duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; and (ii) has
all requisite power, authority and licenses to conduct its business, to
own its properties and to execute, deliver and perform its obligations
under this Agreement.
(b) UCC Information. The true legal name of the Seller as registered
in the jurisdiction of its organization, and the current location of the
Seller's jurisdiction of organization are set forth in Schedule 4.1(b) and
such location has not changed within the past 12 months. During the prior
five years, except as set forth in Schedule 4.1(b), the Seller has not
been known as or used any limited liability company, fictitious or trade
name. In addition, Schedule 4.1(b) lists the Seller's (i) federal employer
identification number and (ii) organizational identification number as
designated by the jurisdiction of its organization.
Loan Purchase and Sale Agreement
4
(c) Power, Authorization, Enforceable Obligations. The execution,
delivery and performance by the Seller of this Agreement and the other
Related Documents and the creation and perfection of all Liens and
ownership interests provided for herein: (i) have been duly authorized by
all necessary action, and (ii) do not violate any provision of any law or
regulation of any Governmental Authority, or contractual or other
restrictions, binding on the Seller, except where such violations,
individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect.
(d) Enforceability. On or prior to the Closing Date, each of the
Related Documents to which the Seller is a party shall have been duly
executed and delivered by the Seller and each such Related Document shall
then constitute a legal, valid and binding obligation of the Seller
enforceable against it in accordance with its terms, subject as to
enforcement to bankruptcy, receivership, conservatorship, insolvency,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting creditors' rights and to general principles of
equity.
(e) Solvency. The Seller is Solvent.
(f) Use of Proceeds. No proceeds received by the Seller under this
Agreement will be used by it for any purpose that violates Regulation U of
the Federal Reserve Board.
(g) Investment Company Act. The Seller is not an "investment
company" or "controlled by" an "investment company," as such terms are
defined in the Investment Company Act.
(h) Loans and Other Purchaser Assets. With respect to each Loan and
the other Purchaser Assets sold by the Seller on the Closing Date, the
Seller represents and warrants that (i) such Loan satisfies the criteria
for an Eligible Loan as of the Cut-Off Date; and (ii) immediately prior to
its sale to the Purchaser, such Purchaser Assets were owned by the Seller
free and clear of any Adverse Claim, and the Seller has had at all
relevant times the full right, power and authority to sell, contribute,
assign, transfer and pledge its interest therein as contemplated under
this Agreement and, upon such sale, the Purchaser will acquire valid and
properly perfected title to, and the sole record and beneficial ownership
interest in, such Purchaser Assets, free and clear of any Adverse Claim or
restrictions on transferability, and the Liens granted to the Purchaser by
the Seller pursuant to Section 2.2 will at all times be fully perfected
first priority Liens in and to such Loans and, in addition, following such
sale, such Loan will not be subject to any Adverse Claim as a result of
any action or inaction on the part of the Seller (or any predecessor in
interest).
The representations and warranties described in this Section 4.1 shall survive
the sale of the Purchaser Assets to the Purchaser, any subsequent assignment or
sale of the Purchaser Assets by the Purchaser, and the termination of this
Agreement and the other Related Documents and shall continue until the payment
in full of all Purchaser Assets.
Loan Purchase and Sale Agreement
5
Section 4.2 Affirmative Covenants of the Seller. The Seller covenants and
agrees that, unless otherwise consented to by the Purchaser, from and after the
Closing Date:
(a) Records. The Seller shall at its own cost and expense, for not
less than three years from the date on which each Loan was originated, or
for such longer period as may be required by law, maintain adequate
Records with respect to such Loan, including records of all payments
received, credits granted and merchandise returned with respect thereto.
(b) Access. At any reasonable time, and from time to time at the
Purchaser's reasonable request, and upon at least seven days prior notice
to the Seller, the Seller shall permit the Purchaser (or such Person as
the Purchaser may designate), at the expense of the Purchaser (or such
Person as the Purchaser may designate), to conduct audits or visit and
inspect any of the properties of the Seller to examine the records,
internal controls and procedures maintained by the Seller with respect to
the Purchaser Assets and take copies and extracts therefrom, and to
discuss the Seller's affairs with its officers, employees and, upon notice
to the Seller, independent accountants. The Seller shall authorize such
officers, employees and independent accountants to discuss with the
Purchaser (or such Person as the Purchaser may designate) the affairs of
the Seller as such affairs relate to the Purchaser Assets. Any audit
provided for herein shall be conducted in accordance with the Seller's
rules respecting safety and security on its premises and without
materially disrupting operations. If an Event of Default shall have
occurred and be continuing, the Seller shall provide such access at all
times and without advance notice and shall provide the Purchaser (or such
Person as the Purchaser may designate) with access to its suppliers and
customers.
(c) Compliance With Agreements and Applicable Laws. The Seller shall
comply with all federal, state and local laws and regulations applicable
to it and the Purchaser Assets, including those relating to truth in
lending, fair credit billing, fair credit reporting, equal credit
opportunity, fair debt collection practices, privacy, licensing and
taxation, except to the extent that the failure to so comply, individually
or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
(d) Maintenance of Existence and Conduct of Business. The Seller
shall preserve and maintain its legal existence, rights, franchise and
privileges in the jurisdiction of its formation.
(e) Notice of Material Event. The Seller shall promptly inform the
Purchaser in writing of the occurrence of any of the following, in each
case setting forth the details thereof and what action, if any, the Seller
proposes to take with respect thereto:
(i) any Litigation commenced or, to the knowledge of the Seller,
threatened against the Seller or with respect to or in
connection with all or any substantial portion of the
Purchaser Assets or developments in such Litigation in each
case that the Seller believes has a reasonable risk of being
determined adversely to the Seller and that could, if
determined adversely, have a Material Adverse Effect; or
Loan Purchase and Sale Agreement
6
(ii) the commencement of a case or proceeding by or against the
Seller seeking a decree or order in respect of the Seller (A)
under the Bankruptcy Code or any other applicable federal,
state or foreign bankruptcy or other similar law, (B)
appointing a custodian, receiver, liquidator, assignee,
trustee or sequestrator (or similar official) for the Seller
or for any substantial part of Seller's assets, or (C)
ordering the winding-up or liquidation of the affairs of the
Seller.
(f) Separate Identity. The Seller shall, to the extent applicable to
it, act in a manner that is consistent with the statements set forth in
Exhibit 4.2(f).
(g) Deposit of Collections. The Seller shall transfer and cause its
Subsidiaries to transfer to the Purchaser or the Servicer on its behalf,
promptly, and in any event no later than the second Business Day after
receipt thereof, all Collections it may receive in respect of Purchaser
Assets.
(h) Sale Characterization. For accounting purposes, the Seller shall
treat the sale made hereunder as a sale of the Purchaser Assets. The
Seller shall also maintain its accounting books and records in a manner
which clearly reflects such sale of the Purchaser Assets to the Purchaser.
Section 4.3 Negative Covenants of the Seller. The Seller covenants and
agrees that, without the prior written consent of the Purchaser, from and after
the Closing Date and until the later of the Redemption Date or the Class C
Maturity Date:
(a) Adverse Claims. The Seller shall not create, incur, assume or
permit to exist any Adverse Claim on or with respect to any Purchaser
Assets.
(b) Modifications of Loans. The Seller shall not extend, amend,
forgive, discharge, compromise, cancel, waive or otherwise modify the
terms or conditions of any Loan except (i) as permitted under the
Servicing Agreement and, (ii) to the extent that such extension,
amendment, forgiveness, discharge, compromise, cancellation, waiver or
modification, does not affect the Purchaser's ownership interest in such
Loan and does not negatively impact the ultimate collectibility of such
Loan.
(c) UCC Matters. The Seller shall not change its state of formation
or its name, identity or limited liability company structure such that any
financing statement filed to perfect the Purchaser's interests under this
Agreement would become seriously misleading, unless the Seller shall have
given the Purchaser not less than 30 days' prior written notice of such
change.
(d) No Proceedings. From the Closing Date and until the date one
year plus one day following the date on which all amounts due with respect
to the Notes have been paid in full in cash, Seller shall not, directly or
indirectly, institute or cause to be instituted against the Purchaser any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceeding under any federal or state bankruptcy or
similar law; provided that the foregoing shall not in any way limit the
Seller's right to
Loan Purchase and Sale Agreement
7
pursue any other creditor rights or remedies that the Seller may have
under applicable law.
(e) Consolidations, Mergers and Sales of Assets. The Seller shall
not (i) consolidate or merge with or into any other Person unless the
Seller is the entity surviving such merger or (ii) sell, lease or
otherwise transfer all or substantially all of its assets to any other
Person.
ARTICLE V
INDEMNIFICATION
Section 5.1 Indemnification. Without limiting any other rights that the
Purchaser or any of its Stockholders, officers, directors, employees, attorneys,
agents or representatives (each, a "Purchaser Indemnified Person") may have
hereunder or under applicable law, the Seller hereby agrees to indemnify and
hold harmless each Purchaser Indemnified Person from and against any and all
Indemnified Amounts that may be claimed or asserted against or incurred by any
such Purchaser Indemnified Person to the extent arising from or related to the
failure of a Loan to be originated in compliance with all requirements of law;
provided, that the Seller shall not be liable for any indemnification to a
Purchaser Indemnified Person to the extent that any such Indemnified Amounts
result from (a) such Purchaser Indemnified Person's bad faith, gross negligence
or willful misconduct, (b) recourse for uncollectible Loans, or (c) any income
tax or franchise tax incurred by any Purchaser Indemnified Person, except to the
extent that the incurrence of any such tax results from a breach of or default
by the Seller under this Agreement.
NO PARTY TO THIS AGREEMENT SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO
THIS AGREEMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH
PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR
INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A
RESULT OF ANY TRANSACTION CONTEMPLATED HEREUNDER.
ARTICLE VI
CLEAN-UP CALL
Section 6.1 Clean-up Call. As of the first day of any Collection Period
immediately preceding a Payment Date as of which the Pool Balance is 10% or less
of the Pool Balance as of the Cut-off Date, the Seller shall have the option to
purchase all of the Collateral, other than the Trust Accounts. To exercise such
option, the Seller shall pay to the Servicer, on behalf of the Issuer, and the
Servicer shall deposit in the Collection Account an amount equal to the
aggregate Purchase Amount for the Loans plus the appraised value of any such
other property held by the Purchaser, such value to be determined by an
appraiser mutually agreed upon by the Seller and the Purchaser, shall succeed to
all interests in, to and under the Collateral, other than the Trust Accounts.
Loan Purchase and Sale Agreement
8
ARTICLE VII
MISCELLANEOUS
Section 7.1 Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other parties, or whenever any of the parties desires to give or
serve upon any other parties any communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and shall be deemed to have been validly
served, given or delivered (a) upon the earlier of actual receipt and three
Business Days after deposit in the United States mail, registered or certified
mail, return receipt requested, with proper postage prepaid, (b) upon
transmission, when sent by telecopy or other similar facsimile transmission
(with such telecopy or facsimile promptly confirmed by delivery of a copy by
personal delivery or United States mail as otherwise provided in this Section
7.1), (c) one Business Day after deposit with a reputable overnight courier with
all charges prepaid or (d) when delivered, if hand-delivered by messenger, all
of which shall be addressed to the party to be notified and sent to the address
or facsimile number set forth below or to such other address (or facsimile
number) as may be substituted by notice given as herein provided. The giving of
any notice required hereunder may be waived in writing by the party entitled to
receive such notice. Failure or delay in delivering copies of any notice,
demand, request, consent, approval, declaration or other communication to any
Person (other than Purchaser) designated in any written communication provided
hereunder to receive copies shall in no way adversely affect the effectiveness
of such notice, demand, request, consent, approval, declaration or other
communication. Notwithstanding the foregoing, whenever it is provided herein
that a notice is to be given to any other party hereto by a specific time, such
notice shall be effective only if actually received by such party prior to such
time, and if such notice is received after such time or on a day other than a
Business Day, such notice shall be effective only on the immediately succeeding
Business Day.
Attention: General Counsel
Telephone: (203) 796-5518
Facsimile: (203) 796-1310
If to Purchaser:
GE Commercial Equipment Financing LLC,
Series 2004-1
44 Old Ridgebury Road
Danbury, Connecticut 06810
Attention: Capital Markets Operations
Telephone: (203) 796-5518
Facsimile: (203) 796-5554
Loan Purchase and Sale Agreement
9
Section 7.2 No Waiver; Remedies. (a) Either party's failure, at any time
or times, to require strict performance by the other party hereto of any
provision of this Agreement shall not waive, affect or diminish any right of
such party thereafter to demand strict compliance and performance herewith. Any
suspension or waiver of any breach or default hereunder shall not suspend, waive
or affect any other breach or default whether the same is prior or subsequent
thereto and whether of the same or a different type. None of the undertakings,
agreements, warranties, covenants and representations of either party contained
in this Agreement, and no breach or default by either party hereunder, shall be
deemed to have been suspended or waived by the other party hereto unless such
waiver or suspension is by an instrument in writing signed by an officer of or
other duly authorized signatory of such party and directed to the defaulting
party specifying such suspension or waiver.
(b) Upon discovery by the Seller or the Purchaser of any breach of
any representation, warranty, undertaking or covenant described in
Sections 4.1, 4.2 or 4.3, which breach is reasonably likely to have a
Material Adverse Effect, the party discovering the same shall give prompt
written notice thereof to the other party hereto. As liquidated damages,
the Purchaser shall, on the Transfer Date relating to the Collection
Period during which the breach is discovered, request the Seller to, and
the Seller shall pay to, or at the direction of, the Purchaser the
Purchase Amount for the applicable Purchaser Assets (measured at the end
of the Collection Period during which such breach is discovered). Upon
such payment, all rights, title and interest of the Purchaser in and to
such Purchaser Assets will be deemed to be automatically released without
the necessity of any further action by the Purchaser, the Seller or any
other party and such Purchaser Assets will become the property of the
Seller.
(c) Each party's rights and remedies under this Agreement shall be
cumulative and nonexclusive of any other rights and remedies that such
party may have under any other agreement, including the other Related
Documents, by operation of law or otherwise.
Section 7.3 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the Seller and the Purchaser and their
respective successors and permitted assigns, except as otherwise provided
herein. The Seller may not assign, transfer, hypothecate or otherwise convey its
rights, benefits, obligations or duties hereunder without the prior express
written consent of the Purchaser. Any such purported assignment, transfer,
hypothecation or other conveyance by the Seller without the prior express
written consent of the Purchaser shall be void. The Seller acknowledges that
under the Indenture the Purchaser will assign its rights granted hereunder to
the Indenture Trustee, and upon such assignment, Indenture Trustee shall have,
to the extent of such assignment, all rights of the Purchaser hereunder and
Indenture Trustee may in turn transfer such rights. The terms and provisions of
this Agreement are for the purpose of defining the relative rights and
obligations of the Seller and the Purchaser with respect to the transactions
contemplated hereby and no Person shall be a third-party beneficiary of any of
the terms and provisions of this Agreement.
Section 7.4 Termination; Survival of Obligations. (a) This Agreement shall
create and constitute the continuing obligations of the parties hereto in
accordance with its terms, and shall
Loan Purchase and Sale Agreement
10
remain in full force and effect until the earlier of (i) the Class C Maturity
Date or (ii) the Redemption Date.
(b) Except as otherwise expressly provided herein or in any other
Related Document, no termination or cancellation (regardless of cause or
procedure) of any commitment made by the Purchaser under this Agreement
shall in any way affect or impair the obligations, duties and liabilities
of the Seller or the rights of the Purchaser relating to any unpaid
portion of any and all recourse and indemnity obligations of the Seller to
the Purchaser, due or not due, liquidated, contingent or unliquidated or
any transaction or event occurring prior to such termination, or any
transaction or event, the performance of which is required after the Class
C Maturity Date. Except as otherwise expressly provided herein or in any
other Related Document, all undertakings, agreements, covenants,
warranties and representations of or binding upon the Seller, and all
rights of the Purchaser hereunder shall not terminate or expire, but
rather shall survive any such termination or cancellation and shall
continue in full force and effect until the earlier of (i) the Class C
Maturity Date or (ii) the Redemption Date; provided, that the rights and
remedies pursuant to Section 7.2(b), the indemnification and payment
provisions of Article V, and the provisions of Sections 4.3(e), 7.3 and
7.12 shall be continuing and shall survive any termination of this
Agreement.
Section 7.5 Complete Agreement; Modification of Agreement. This Agreement
constitutes the complete agreement between the parties with respect to the
subject matter hereof, supersedes all prior agreements and understandings
relating to the subject matter hereof and thereof, and may not be modified,
altered or amended except as set forth in Section 7.6.
Section 7.6 Amendments and Waivers. No amendment, modification,
termination or waiver of any provision of this Agreement, or any consent to any
departure therefrom by any party hereto, shall in any event be effective unless
the same shall be in writing and signed by each of the parties hereto. No
consent or demand in any case shall, in itself, entitle any party to any other
consent or further notice or demand in similar or other circumstances.
Section 7.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF EXCEPT
SECTION 5-1401 OF THE GENERAL OBLIGATION LAW) AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL
HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF
OR RELATING TO THIS AGREEMENT;
Loan Purchase and Sale Agreement
11
PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE
COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF
MANHATTAN IN NEW YORK CITY; PROVIDED FURTHER, THAT NOTHING IN THIS
AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE PURCHASER FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO
REALIZE ON THE LOANS OR ANY SECURITY FOR THE OBLIGATIONS OF THE SELLER
ARISING HEREUNDER OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR
OF THE PURCHASER. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND
EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE
BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY
WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED
IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS,
COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH
SECTION 7.1 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE
EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT
IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION
SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED
AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS
TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND
OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 7.8 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement.
Loan Purchase and Sale Agreement
12
Section 7.9 Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
Section 7.10 Section Titles. The section titles and table of contents
contained in this Agreement are provided for ease of reference only and shall be
without substantive meaning or content of any kind whatsoever and are not a part
of the agreement between the parties hereto.
Section 7.11 No Setoff. The Seller's obligations under this Agreement
shall not be affected by any right of setoff, counterclaim, recoupment, defense
or other right the Seller might have against the Purchaser, all of which rights
are hereby expressly waived by the Seller.
Section 7.12 Confidentiality. Notwithstanding anything herein to the
contrary, there is no restriction (express or implied) on any disclosure or
dissemination of the structure or tax aspects of the transaction contemplated by
the Related Documents. Furthermore, each party hereto acknowledges that it has
no proprietary rights to any tax matter or tax idea contemplated hereby or to
any element of the transaction structure contemplated hereby.
Section 7.13 Further Assurances. (a) The Seller shall, at its sole cost
and expense, upon request of the Purchaser, promptly and duly authorize, execute
and/or deliver, as applicable, any and all further instruments and documents and
take such further actions that may be necessary or desirable or that the
Purchaser may request to carry out more effectively the provisions and purposes
of this Agreement or to obtain the full benefits of this Agreement and of the
rights and powers herein granted, including authorizing and filing any financing
or continuation statements under the UCC with respect to the ownership interests
or Liens granted hereunder. The Seller hereby authorizes the Purchaser to file
any such financing or continuation statements without the signature of the
Seller to the extent permitted by applicable law. A carbon, photographic or
other reproduction of this Agreement or of any notice or financing statement
covering the Purchaser Assets or any part thereof shall be sufficient as a
notice or financing statement where permitted by law. If any amount payable
under or in connection with any of the Purchaser Assets is or shall become
evidenced by any instrument, such instrument, other than checks and notes
received in the ordinary course of business, shall be duly endorsed in a manner
satisfactory to the Purchaser immediately upon the Seller's receipt thereof and
promptly delivered to or at the direction of the Purchaser.
(b) If the Seller fails to perform any agreement or obligation under this
Section 7.13, the Purchaser may (but shall not be required to) itself perform,
or cause performance of, such agreement or obligation, and the reasonable
expenses of the Purchaser incurred in connection therewith shall be payable by
the Seller upon demand of the Purchaser.
Section 7.14 Accounting Changes. If any Accounting Changes occur and such
changes result in a change in the standards or terms used herein, then the
parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such Accounting Changes with the desired
result that the criteria for evaluating the financial condition of such Persons
and their Subsidiaries shall be the same after such Accounting Changes as if
such
Loan Purchase and Sale Agreement
13
Accounting Changes had not been made. If the parties hereto agree upon the
required amendments to this Agreement, then after appropriate amendments have
been executed and the underlying Accounting Change with respect thereto has been
implemented, any reference to GAAP contained herein shall, only to the extent of
such Accounting Change, refer to GAAP consistently applied after giving effect
to the implementation of such Accounting Change. If such parties cannot agree
upon the required amendments within 30 days following the date of implementation
of any Accounting Change, then all financial statements delivered and all
standards and terms used herein shall be prepared, delivered and used without
regard to the underlying Accounting Change.
[Signatures Follow]
Loan Purchase and Sale Agreement
14
IN WITNESS WHEREOF, the parties have caused this LOAN PURCHASE AND SALE
AGREEMENT to be executed by their respective duly authorized representatives, as
of the date first above written.
The Purchaser, GECS, GE Capital, GECT and the Seller have and will
continue (in each case, to the extent within its control) to maintain the
Purchaser's separate existence and identity and have and will continue to take
all steps necessary to make it apparent to third parties that the Purchaser is
an entity with assets and liabilities distinct from those of the Seller, GE
Capital, GECT or GECS or any other Subsidiary or Affiliate of the Seller, GE
Capital, GECT or GECS. In addition to the foregoing, such steps and indicia of
the Purchaser's separate identity include the following:
(a) The Purchaser does and will maintain its own stationery and other
business forms separate from those of any other Person (including the Seller, GE
Capital, GECT and GECS), and will conduct business in its own name except that
certain Persons may act on behalf of the Purchaser as agents;
(b) The Purchaser maintains and will maintain separate office space of its
own as part of its operations, although such space is in a building shared with
GE Capital. The corporate records, the other books and records, and the other
assets of the Purchaser are and will be segregated from the property of the
Seller, GECT and GECS, respectively;
(c) GECS, GECT and/or GE Capital will issue consolidated financial
statements, which financial statements will not show Purchaser Assets that have
been sold by the Seller to the Purchaser as assets of the Seller and its
consolidated subsidiaries. The Seller, GECS, GE Capital, GECT and the Purchaser
will take certain actions to disclose publicly the Purchaser's separate
existence and the transactions contemplated hereby, including through the filing
of the UCC Financing Statements. None of the Seller, GECS, GE Capital, GECT or
the Purchaser has concealed or will conceal from any interested party any
transfers contemplated by the Related Documents;
(d) The Purchaser will not have its own employees, and, as indicated, the
Purchaser's business relating to the Purchaser Assets may be conducted through
the agents. However, any allocations of direct, indirect or overhead expenses
for items shared between the Purchaser, GE Capital and GECT or GECS that are not
included as part of the Servicing Fee are and will be made among such entities
to the extent practical on the basis of actual use or value of services rendered
and otherwise on a basis reasonably related to actual use or the value of
services rendered;
(e) Except as provided in paragraph (d) above regarding the allocation of
certain shared overhead items, the Purchaser does and will pay its own operating
expenses and liabilities from its own funds, except GECS did and will pay all
expenses of the Purchaser incurred in connection with the transactions entered
into pursuant to the Related Documents, including those related to the
Purchaser's organization;
(f) Each of the Seller, GECS, GE Capital, GECT and the Purchaser does and
will maintain its assets and liabilities in such a manner that it is not costly
or difficult to segregate, ascertain or otherwise identify the Purchaser's
individual assets and liabilities from those of the
Loan Purchase
and Sale Agreement
Seller, GE Capital, GECT or GECS or from those of any other person or entity,
including any other Subsidiary or Affiliate of the Seller, GE Capital, GECT or
GECS. Except as set forth below, the Purchaser does and will maintain its own
books of account and corporate records separate from the Seller, GE Capital,
GECT and GECS or any other Subsidiary or Affiliate of the Seller, GE Capital,
GECT and GECS. Monetary transactions, including those with each other, are and
will continue to be properly reflected in their respective financial records.
The Purchaser does not and will not commingle or pool its funds or other assets
or liabilities with those of the Seller, GE Capital, GECT or GECS or any other
Subsidiary or Affiliate of the Seller, GE Capital, GECT or GECS except as
specifically provided in the Related Documents with respect to the temporary
commingling of Collections and with respect to, if applicable, any such Person's
retention, in their capacity as agent or Custodian for the Purchaser, of the
books and records pertaining to the Purchaser Assets. However, any such agent or
Custodian will not generally make the books and records relating to the
Purchaser Assets available to any of creditors or other interested Persons of
the Purchaser, the Seller, GE Capital, GECT or GECS. The Purchaser does not and
will not maintain joint bank accounts or other depository accounts to which the
Seller, GE Capital, GECT or GECS or any other Subsidiary or Affiliate of the
Seller, GE Capital, GECT or GECS (other than in their capacity as agent for the
Purchaser, if applicable) has independent access;
(g) The Purchaser will strictly observe corporate formalities, and the
Seller, GE Capital, GECT and GECS will strictly observe corporate formalities
with respect to its dealings with the Purchaser. Specifically, no transfer of
assets between any of the Seller, GE Capital, GECT and GECS, on the one hand,
and the Purchaser, on the other, will be made without adherence to corporate
formalities;
(h) The transactions among the Purchaser and the Seller, GE Capital, GECT
or GECS, including the terms governing any servicer advances and the amount and
payment of the servicing fee, are on terms and conditions that are consistent
with those of arm's-length relationships. None of the Seller, GE Capital, GECT
or GECS is or will be, or holds or will hold itself out to be, responsible for
the debts of the Purchaser, except as provided in: the representations made by
GE Capital (including, if applicable, as a servicer or a sub-servicer) to the
Purchaser relating to the Purchaser Assets and their prior ownership and
servicing thereof. The Purchaser will not guaranty the debts of the Seller, GE
Capital, GECT or GECS;
(i) All distributions made by the Purchaser to Seller as its sole member
shall be in accordance with applicable law;
(j) Any other transactions between the Purchaser and the Seller, GE
Capital, GECT or GECS permitted by (although not expressly provided for in) the
Related Documents have been and will be fair and equitable to each of the
parties, have been and will be the type of transaction that would be entered
into by a prudent Person or entity, and have been and will be on terms that are
at least as favorable as may be obtained from a third party Person; and
(k) The Purchaser is not named, or has entered into any agreement to be
named, directly or indirectly, as a direct or contingent beneficiary or loss
payee on any insurance policy covering the assets of the Seller, GE Capital,
GECT or GECS.
Loan Purchase
and Sale Agreement
FINAL VERSION
ANNEX A
to
LOAN PURCHASE AND SALE AGREEMENT
dated as of
November 16, 2004
Annex A to
Loan Purchase and Sale Agreement
DEFINITIONS AND INTERPRETATION
SECTION 1. Definitions and Conventions. Capitalized terms used in the
Purchase and Sale Agreement shall have (unless otherwise provided elsewhere
therein) the following respective meanings:
"Accounting Changes" means, with respect to any Person, an adoption of
GAAP different from such principles previously used for reporting purposes by
such Person as defined in the Accounting Principles Board Opinion Number 20.
"Administration Agreement" means the Administration Agreement, dated as of
November 16, 2004, between the Administrator and the Issuer.
"Administrator" means GE Capital, in its capacity as Administrator under
the Administration Agreement, or any other Person designated as a successor
administrator.
"Adverse Claim" means any claim of ownership or any Lien, other than any
ownership interest or Lien created under the Loan Sale Agreement or the Purchase
and Sale Agreement, any Lien created under the Indenture or any Permitted
Encumbrances.
"Affiliate" means, with respect to any Person, (a) each Person that,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, five percent (5%) or more of the stock having
ordinary voting power in the election of directors of such Person, (b) each
Person that controls, is controlled by, or is under common control with such
Person, or (c) each of such Person's officers, directors, joint venturers and
partners. For the purposes of this definition, "control" of a Person means the
possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"Annual Percentage Rate" or "APR" of a Loan means, the interest rate or
annual rate of finance charges stated in or, if not explicitly stated, the
implicit finance charge used by the Servicer to calculate periodic payments with
respect to the related Loan.
"Appendices" means, with respect to any Related Document, all exhibits,
schedules, annexes and other attachments thereto, or expressly identified
thereto.
"Bankruptcy Code" means the provisions of Title 11 of the United States
Code, 11 U.S.C. Sections 101 et seq.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which banks are required or permitted to be closed in the State of New York or
the State of Connecticut.
"CEF Limited Liability Company Agreement" means the Second Amended &
Restated Limited Liability Company Agreement of the Seller dated as of September
25, 2003, as the same may be amended and supplemented from time to time.
"Class C Maturity Date" is defined in the Indenture.
Annex A to
Loan Purchase and Sale Agreement
"Closing Date" means November 16, 2004.
"Collateral" is defined in the Indenture.
"Collection Account" is the account designated as such, established and
owned by the Issuer.
"Collection Period" means, with respect to any Payment Date, the calendar
month preceding the month in which the Payment Date occurs (or, if for the first
Payment Date, the period from and including the day after the Cut-off Date to
and including the last day of the calendar month preceding the calendar month in
which the first Payment Date occurs).
"Collections" means, with respect to any Payment Date all payments made by
or on behalf of the Obligors received during the related Collection Period, any
Recoveries received during the related Collection Period, any proceeds from
insurance policies covering the Equipment or related Obligor received during the
related Collection Period. Liquidation Proceeds received during the related
Collection Period, and payments made by a lessee pursuant to its obligation (if
any) to pay the Termination Value pursuant to the related Loan received during
the related Collection Period; provided, that "Collections" for the first
Collection Period shall exclude interest accrued before November 1, 2004.
"Consumer Contract" is defined in the Loan Sale Agreement.
"Credit and Collection Policies" or "Credit and Collection Policy" means
the policies, practices and procedures adopted by the Issuer on the Closing Date
for providing equipment loans secured by transportation equipment, industrial
equipment, furniture and fixtures, construction equipment, medical and dental
equipment, technology and telecommunications equipment, maritime assets or other
equipment, including the policies and procedures for determining the
creditworthiness of Obligors and the extension of credit to Obligors, or
relating to the maintenance of such types of loans and collections on such types
of loans.
"Cut-off Date" is defined in the Loan Sale Agreement.
"Delinquent Loan" means (i) any Loan that is more than 60 days past due
and (ii) any Loan more than 30 days past due and for which the Servicer on
behalf of the Purchaser has at any time after the Cut-off Date extended the due
date for a Scheduled Payment thereon.
"Defaulted Loan" means a Loan with respect to which (i) the Servicer on
behalf of the Purchaser has repossessed the Equipment securing such Loan and
which is not a Liquidated Loan or (ii) any portion of the Loan Value is deemed
uncollectible in accordance with the Credit and Collection Policy.
"Eligible Loan" means as to each Purchaser Asset as of the Closing Date:
(i) Characteristics of Purchaser Assets. Each Purchaser Asset: (A)
was either originated in the United States of America by GE Capital in
connection with the financing or lease of Equipment in the ordinary course
of GE Capital's business or acquired by GE Capital in the ordinary course
of its business, and, in each case, was fully
Annex A to
Loan Purchase and Sale Agreement
2
and properly executed by the parties thereto, (B) has created a valid,
subsisting and enforceable first priority security interest (except to the
extent the Equipment secures any loan that is cross-collateralized with
such Purchaser Asset) in the Equipment in favor of GE Capital or GECT, as
applicable, that, as of the Closing Date, has been assigned by GE Capital
or GECT, as applicable, to Seller, and by Seller to Purchaser and (C)
contains customary and enforceable provisions such that the rights and
remedies of the holder thereof are adequate for realization against the
collateral of the benefits of the security.
(ii) Schedule of Purchaser Assets. The information set forth on
Schedule I of the Loan Sale Agreement is true and correct in all material
respects as of the opening of business on the Cut-off Date and no
selection procedures believed by Seller to be adverse to the interests of
the Purchaser were utilized in selecting the Purchaser Assets. The
computer tape regarding the Purchaser Assets made available to Purchaser
and its assigns is true and correct in all respects.
(iii) Compliance with Law. Each Purchaser Asset and the sale or
lease of the related Equipment complied in all material respects at the
time it was originated or made and at the execution of this Agreement with
all requirements of applicable Federal, State and local laws and
regulations thereunder.
(iv) Binding Obligation. Each Purchaser Asset represents the
genuine, legal, valid and binding payment obligation in writing of the
Obligor, enforceable by the holder thereof in accordance with its terms.
(v) No Government Obligor. None of the Purchaser Assets is due from
the United States of America or any State or from any agency, department
or instrumentality of the United States of America or any State.
(vi) Security Interest in the Equipment. Immediately prior to the
sale, assignment and transfer thereof, each Purchaser Asset shall be
secured by a validly perfected first priority security interest in the
Equipment (except to the extent the Equipment secures any loan that is
cross-collateralized with such Purchaser Asset) in favor of GE Capital or
GECT, as applicable, as secured party or all necessary and appropriate
actions have been commenced that would result in the valid perfection of a
first priority security interest in the Equipment in favor of GE Capital
or GECT, as applicable, as secured party.
(vii) Purchaser Assets in Force. No Purchaser Asset has been
satisfied, subordinated or rescinded, nor has any Equipment been released
from the Lien granted by the related Purchaser Asset in whole or in part.
(viii) No Amendment or Waiver. No provision of a Purchaser Asset has
been waived, altered or modified in any respect, except pursuant to a
document, instrument or writing included in the Loan Files and no such
amendment, waiver, alteration or modification causes such Purchaser Asset
not to be an Eligible Loan.
(ix) No Defenses. No right of rescission, setoff, counterclaim or
defense has been asserted or threatened or exists with respect to any
Purchaser Asset.
Annex A to
Loan Purchase and Sale Agreement
3
(x) Lawful Assignment. No Purchaser Asset has been originated in, or
is subject to the laws of, any jurisdiction under which the sale, transfer
and assignment of such Purchaser Asset or any Purchaser Asset under this
Agreement would be unlawful.
(xi) All Filings Made. All filings (including UCC filings) necessary
in any jurisdiction to give Purchaser a first priority perfected ownership
interest in the Purchaser Assets have been made (except to the extent the
Equipment secures any loan that is cross-collateralized with such
Purchaser Asset).
(xii) One Original. There is only one original executed copy of each
Purchaser Asset.
(xiii) Insurance. The Obligor on each Purchaser Asset is required to
maintain physical damage insurance covering the Equipment in accordance
with the GE Capital's normal requirements.
(xiv) No Bankruptcies. No Obligor on any Purchaser Asset as of the
Cut-off Date was noted in the related Loan File as being the subject of a
bankruptcy proceeding.
(xv) No Repossessions. None of the Equipment securing any Purchaser
Asset is in repossession status.
(xvi) Instrument or Chattel Paper. Each Purchaser Asset constitutes
an "instrument" or "chattel paper" as defined in the UCC of each State the
law of which governs the perfection of the interest granted in it and/or
the priority of such perfected interest.
(xvii) U.S. Obligors. None of the Purchaser Assets is denominated
and payable in any currency other than United States Dollars or is due
from any Person that does not have a mailing address in the United States
of America.
(xviii) No Delinquent Loan. None of the Purchaser Assets is more
than 30 days past due.
(xix) No Consumer Contract. None of the Purchaser Assets constitutes
a Consumer Contract.
(xx) Finance Lease. Each Purchaser Asset qualifies as a finance
lease under the UCC and the terms of such Purchaser Asset provides that,
by the end of the lease term, the lessee may elect to purchase the related
Equipment upon the exercise of a nominal purchase option.
"Equipment" means any transportation equipment, industrial equipment,
furniture and fixtures, construction equipment, medical and dental equipment,
technology and telecommunications equipment, maritime assets or other equipment,
together with all accessions thereto securing an Obligor's indebtedness under
the respective Loan.
"Event of Default" is defined in Section 5.1 of the Indenture.
Annex A to
Loan Purchase and Sale Agreement
4
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect on the Closing Date, modified by Accounting Changes as
GAAP is further defined in Section 2(a) of this Annex A.
"GE Capital" means General Electric Capital Corporation, a Delaware
corporation or any successors or assigns thereto.
"GECS" means General Electric Capital Services, Inc., a Delaware
corporation or any successors or assigns thereto.
"GECT" means General Electric Credit Corporation of Tennessee, a Tennessee
corporation or any successors or assigns thereto.
"Governmental Authority" means any nation or government, any state,
county, city, town, district, board, bureau, office, commission, any other
municipality or other political subdivision thereof (including any educational
facility, utility or other Person operated thereby), and any agency, department
or other entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Indemnified Amounts" means, with respect to any Person, any and all
suits, actions, proceedings, claims, damages, losses, liabilities and expenses
(including reasonable attorneys' fees and disbursements and other costs of
investigation or defense, including those incurred upon any appeal).
"Indenture" means the Indenture, dated November 16, 2004, between the
Purchaser and the Indenture Trustee, as the same may be amended and supplemented
from time to time.
"Indenture Trustee" means JPMorgan Chase Bank, N.A., not in its individual
capacity but solely as Indenture Trustee under the Indenture, or any successor
Indenture Trustee under the Indenture.
"Investment Company Act" means the provisions of the Investment Company
Act of 1940, 15 U.S.C. Sections 80a et seq., and any regulations promulgated
thereunder.
"Issuer" means GE Commercial Equipment Financing LLC, Series 2004-1, a
Delaware limited liability company, until a successor replaces it and,
thereafter, means the successor and, for purposes of any provision contained in
the Indenture and required by the Trust Indenture Act of 1939, each other
obligor on the Notes.
"Issuer Limited Liability Company Agreement" means the Limited Liability
Company Agreement of the Purchaser, dated as of November 16, 2004, among the
Managing Member and the Issuer, as the same may be amended or supplemented from
time to time.
"Lien" means a security interest (as such term is defined in Section 1-201
of Article 1 of the UCC), lien, charge, pledge, equity or encumbrance of any
kind, other than tax liens,
Annex A to
Loan Purchase and Sale Agreement
5
mechanics' liens and any liens that attach to the related Loan by operation of
law as a result of any act or omission by the related Obligor.
"Liquidated Loan" means any Loan (i) liquidated through the sale or other
disposition of all or a portion of the related Equipment, (ii) that has been
charged off in its entirety in accordance with the Credit and Collection Policy
without realizing upon the Equipment or (iii) the due date of any Scheduled
Payment of which has been extended, at any time after the Cut-off Date for an
aggregate period of 12 or more calendar months.
"Liquidation Proceeds" means, with respect to any Liquidated Loan, the
amounts collected in respect thereof from whatever source (including the
proceeds of insurance policies with respect to the related Equipment or Obligor)
during the Collection Period in which it became a Liquidated Loan, net of the
sum of any amounts expended in connection with such liquidation and any amounts
required by law to be remitted to the Obligor on such Liquidated Loan or any
creditor of such Obligor to the extent required by applicable law or agreement.
"Litigation" means, with respect to any Person, any action, claim,
lawsuit, demand, investigation or proceeding pending or threatened against such
Person before any court, board, commission, agency or instrumentality of any
federal, state, local or foreign government or of any agency or subdivision
thereof or before any arbitrator or panel of arbitrators.
"Loan" means any Loan included in Schedule of Loans and any agreement
(including any invoice) pursuant to, or under which, an Obligor shall be
obligated to make payments with respect to any Loan.
"Loan Sale Agreement" means the Loan Sale Agreement, dated as of November
16, 2004, among GE Capital, GECT and the Seller, as the same may be amended or
supplemented from time to time.
"Loan Files" is defined in Section 2.1 of the Purchase and Sale Agreement.
"Loan Value" means, for any Loan that is not a Liquidated Loan or
Defaulted Loan on any day (including the Cut-off Date) (A) with respect to
Precomputed Loans, (i) the present value of the future Scheduled Payments
discounted monthly at its APR plus (ii) the principal amount of any past due
payments plus (iii) the unamortized amounts of any purchase premiums minus (iv)
the unamortized amounts of any purchase discounts, and (B) with respect to
Simple Interest Loans, (i) the balance reflected on the Servicer's records plus
(ii) the unamortized amounts of any purchase premiums minus (iii) the
unamortized amounts of any purchase discounts. Liquidated Loans shall be deemed
to have a Loan Value of zero and Defaulted Loans on any day shall be deemed to
have a Loan Value equal to the outstanding Loan Value on such day computed in
accordance with clauses (A) or (B) above, as applicable, less the amount written
off as uncollectible in accordance with the Credit and Collection Policy.
"Managing Member" means CEF Equipment Holding, L.L.C, a Delaware limited
liability company or any successor Managing Member under the Issuer Limited
Liability Company Agreement.
Annex A to
Loan Purchase and Sale Agreement
6
"Material Adverse Effect" means, with respect to any Person, a material
adverse effect on (a) the business, assets, liabilities, operations, prospects
or financial or other condition of such Person, (b) the ability of such Person
to perform any of its obligations under the Related Documents in accordance with
the terms thereof, (c) the validity or enforceability of any Related Document or
the rights and remedies of such Person under any Related Document or (d) the
Loans, as applicable, therefor, any interest related thereto or the ownership
interests or Liens of such Person thereon or the priority of such interests or
Liens.
"Note Depository Agreement" means the agreement among the Issuer, the
Indenture Trustee and The Depository Trust Company, as the initial clearing
agency, dated as of the Closing Date.
"Notes" means the notes issued under the Indenture.
"Obligor" means, as to each Loan, any Person who owes payments under the
Loan.
"Payment Date" means, with respect to each Collection Period, the 20th day
of the calendar month following the end of that Collection Period, or, if such
day is not a Business Day, the next Business Day, commencing on December 20,
2004.
"Permitted Encumbrances" means the following encumbrances: (a) Liens for
taxes or assessments or other governmental charges not yet due and payable; (b)
pledges or deposits securing obligations under workmen's compensation,
unemployment insurance, social security or public liability laws or similar
legislation; (c) pledges or deposits securing bids, tenders, contracts (other
than contracts for the payment of money) or leases to which the Seller or any
Affiliate thereof is a party as lessee made in the ordinary course of business;
(d) deposits securing statutory obligations of the Seller or any Affiliate
thereof; (e) inchoate and unperfected workers', mechanics', suppliers' or
similar Liens arising in the ordinary course of business; (f) carriers',
warehousemen's or other similar possessory Liens arising in the ordinary course
of business and securing liabilities in an outstanding aggregate amount not in
excess of $100,000 at any one time; (g) deposits securing, or in lieu of,
surety, appeal or customs bonds in proceedings to which the Seller or any
Affiliate thereof is a party; (h) any attachment or judgment Lien not
constituting an Event of Default; (i) presently existing or hereinafter created
Liens in favor of the Purchaser or the Indenture Trustee; and (j) presently
existing or hereinafter created Liens on personal property or Equipment which
are subordinate to or pari passu with the Liens in favor of the Purchaser or the
Indenture Trustee.
"Person" means any individual, sole proprietorship, partnership, joint
venture, unincorporated organization, trust, association, corporation (including
a business trust), limited liability company, institution, public benefit
corporation, joint stock company, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Pool Balance" means, with respect to the beginning of any calendar month,
the sum of the aggregate Loan Values of the Loans at the opening of business on
the first day of such calendar month.
"Precomputed Loan" means any Loan under which the portion of a payment
allocable to earned interest (which may be referred to in the related Loan as an
add-on finance charge) and
Annex A to
Loan Purchase and Sale Agreement
7
the portion allocable to principal are determined according to the sum of
periodic balances, the sum of monthly payments or any equivalent method or are
monthly actuarial loans.
"Purchase Amount" means, as of the close of business on the last day of a
Collection Period, an amount equal to the Loan Value of the applicable Loan, as
of the first day of the immediately following Collection Period (or, with
respect to any applicable Loan that is a Liquidated Loan, as of the day
immediately prior to such Loan becoming a Liquidated Loan less any Liquidation
Proceeds actually received by the Purchaser) plus interest accrued and unpaid
thereon as of such last day at a rate per annum equal to the APR for such Loan.
"Purchase and Sale Agreement" means the Loan Purchase and Sale Agreement,
dated as of November 16, 2004, between the Seller and the Purchaser, as the same
may be amended or supplemented from time to time.
"Purchaser" is defined in the preamble to the Purchase and Sale Agreement.
"Purchaser Assets" is defined in Section 2.1(a) of the Purchase and Sale
Agreement.
"Purchaser Indemnified Person" is defined in Section 5.1 of the Purchase
and Sale Agreement.
"Purchaser Purchase Price" is defined in Section 2.3 of the Purchase and
Sale Agreement.
"Records" means all notes, leases, security agreements and other
documents, books, records and other information (including computer programs,
tapes, disks, data processing software and related property and rights) prepared
and maintained by any of the Seller, the Servicer, any Sub-Servicer or the
Purchaser with respect to the Loans and the Obligors thereunder, and the other
Purchaser Assets.
"Recoveries" means, with respect to any Liquidated Loan, monies collected
in respect thereof, from whatever source (other than from the sale or other
disposition of the Equipment), in any Collection Period after such Loan became a
Liquidated Loan.
"Redemption Date" is defined in the Indenture.
"Related Documents" means the Loan Sale Agreement, the Purchase and Sale
Agreement, the Servicing Agreement, the Issuer Limited Liability Company
Agreement, the CEF Limited Liability Company Agreement, the Administration
Agreement, the Note Depository Agreement, the Swap Agreement and all other
agreements, instruments, and documents and including all other pledges, powers
of attorney, consents, assignments, contracts, notices, and all other written
matter whether heretofore, now or hereafter executed by or on behalf of any
Person, or any employee of any Person, and delivered in connection with any of
the foregoing. Any reference in the foregoing documents to a Related Document
shall include all Appendices thereto, and all amendments, restatements,
supplements or other modifications thereto, and shall refer to such Related
Document as the same may be in effect at any and all times such reference
becomes operative.
Annex A to
Loan Purchase and Sale Agreement
8
"Related Security" means with respect to any Loan: (a) any interest
(including security interests), if any, in the related Equipment; (b) all
guarantees, insurance or other agreements or arrangements of any kind from time
to time supporting or securing payment of such Loan (including rights (if any)
to receive proceeds on insurance policies covering the Obligors); and (c) all
Records relating to such Loan.
"Schedule of Loans" is the schedule of Loans attached as Schedule I (which
schedule may be in the form of microfiche).
"Scheduled Payment" on a Loan means that portion of the payment required
to be made by the Obligor during any Collection Period sufficient to amortize
the principal balance under (x) in the case of a Precomputed Loan, the actuarial
method or (y) in the case of a Simple Interest Loan, the simple interest method,
in each case, over the term of the Loan and to provide interest at the APR,
provided that Termination Values shall also constitute Scheduled Payments.
"Securities Act" means the provisions of the Securities Act of 1933, 15
U.S.C. Sections 77a et seq., and any regulations promulgated thereunder.
"Securities Exchange Act" means the provisions of the Securities Exchange
Act of 1934, 15 U.S.C. Sections 78a et seq., and any regulations promulgated
thereunder.
"Seller" is defined in the preamble to the Purchase and Sale Agreement.
"Servicer" means GE Capital in its capacity as Servicer under the
Servicing Agreement, or any other Person designated as a Successor Servicer
thereunder.
"Servicing Agreement" means the Servicing Agreement dated as of November
16, 2004, by and between the Purchaser and the Servicer, as the same may be
amended or supplemented from time to time.
"Servicing Fee" is defined in the Servicing Agreement.
"Simple Interest Loan" means any Loan under which the portion of a payment
allocable to interest and the portion allocable to principal is determined by
allocating a fixed level payment between principal and interest, such that such
payment is allocated first to the accrued and unpaid interest at the Annual
Percentage Rate for such Loan on the unpaid principal balance and the remainder
of such payment is allocable to principal.
"Solvent" means, with respect to any Person on a particular date, that on
such date (a) the fair value of the property of such Person is greater than the
total amount of liabilities, including contingent liabilities, of such Person;
(b) the present fair salable value of the assets of such Person is not less than
the amount that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured; (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature; and (d) such
Person is not engaged in a business or transaction, and is not about to engage
in a business or transaction, for which such Person's property would constitute
an unreasonably small capital. The amount of contingent liabilities (such as
Litigation, guaranties and pension plan liabilities) at any time shall be
computed as the amount that, in light
Annex A to
Loan Purchase and Sale Agreement
9
of all the facts and circumstances existing at the time, represents the amount
that can reasonably be expected to become an actual or matured liability.
"Stock" means all shares, options, warrants, membership interests in a
limited liability company, general or limited partnership interests or other
equivalents (regardless of how designated) of or in a corporation, partnership
or equivalent entity whether voting or nonvoting, including common stock,
preferred stock or any other "equity security" (as such term is defined in Rule
3a11-1 of the General Rules and Regulations promulgated by the Securities and
Exchange Commission under the Securities Exchange Act).
"Stockholder" means, with respect to any Person, each holder of Stock of
such Person.
"Sub-Servicer" means any Person with whom the Servicer enters into a
Sub-Servicing Agreement.
"Sub-Servicing Agreement" means any written contract entered into between
a Servicer and any Sub-Servicer pursuant to and in accordance with the Servicing
Agreement.
"Subsidiary" means, with respect to any Person, any corporation or other
entity (a) of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other Persons
performing similar functions are at the time directly or indirectly owned by
such Person or (b) that is directly or indirectly controlled by such Person
within the meaning of control under Section 15 of the Securities Act.
"Successor Servicer" is defined in Section 6.2 of the Servicing Agreement.
"Swap Agreement" is defined in the Indenture.
"Termination Value" means the "Termination Value" (if any) payable by
lessee pursuant to the applicable Loan.
"Transfer Date" is defined in the Indenture.
"Trust Account" is defined in the Indenture.
"UCC" means, with respect to any jurisdiction, the Uniform Commercial Code
as the same may, from time to time, be enacted and in effect in such
jurisdiction.
SECTION 2. Other Interpretive Matters. All terms defined directly or by
incorporation in the Purchase and Sale Agreement shall have the defined meanings
when used in any certificate or other document delivered pursuant thereto unless
otherwise defined therein. For purposes of the Purchase and Sale Agreement
(including in this Annex A) and all related certificates and other documents,
unless the context otherwise requires: (a) accounting terms not otherwise
defined in such Agreement, and accounting terms partly defined in such Agreement
to the extent not defined, shall have the respective meanings given to them
under generally accepted accounting principles; and unless otherwise provided,
references to any month, quarter or year refer to a fiscal month, quarter or
year as determined in accordance with the Seller fiscal calendar; (b) terms
defined in Article 9 of the UCC and not otherwise defined in such Agreement
Annex A to
Loan Purchase and Sale Agreement
10
are used as defined in that Article; (c) references to any amount as on deposit
or outstanding on any particular date means such amount at the close of business
on such day; (d) the words "hereof," "herein" and "hereunder" and words of
similar import refer to such Agreement (or the certificate or other document in
which they are used) as a whole and not to any particular provision of such
Agreement (or such certificate or document); (e) references to any Section,
Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to
such Agreement (or the certificate or other document in which the reference is
made), and references to any paragraph, subsection, clause or other subdivision
within any Section or definition refer to such paragraph, subsection, clause or
other subdivision of such Section or definition; (f) the term "including" means
"including without limitation"; (g) references to any law or regulation refer to
that law or regulation as amended from time to time and include any successor
law or regulation; (h) references to any agreement refer to that agreement as
from time to time amended, restated or supplemented or as the terms of such
agreement are waived or modified in accordance with its terms; (i) references to
any Person include that Person's successors and assigns; and (j) headings are
for purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
Annex A to
Loan Purchase and Sale Agreement
11
EXHIBIT 4 (e)
EXECUTION VERSION
SERVICING AGREEMENT
Dated as of November 16, 2004
by and between
GE COMMERCIAL EQUIPMENT FINANCING LLC,
SERIES 2004-1
as the Issuer
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as the Servicer
Servicing Agreement
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1. Definitions..................................................... 1
Section 1.2. Other Interpretive Matters...................................... 1
ARTICLE II
APPOINTMENT OF THE SERVICER; CERTAIN DUTIES AND RESPONSIBILITIES
OF THE SERVICER
Section 2.1. Appointment of the Servicer..................................... 1
Section 2.2. Duties and Responsibilities of the Servicer..................... 1
Section 2.3. Unrelated Amounts............................................... 2
Section 2.4. Authorization of the Servicer................................... 2
Section 2.5. Servicing Fees and Servicing Advances........................... 3
Section 2.6. Covenants of the Servicer....................................... 3
Section 2.7. Servicer's Certificate.......................................... 3
Section 2.8. Annual Statement as to Compliance; Notice of Default............ 4
Section 2.9. Annual Independent Certified Public Accountants' Report......... 4
Section 2.10. Appointment of Subservicer...................................... 4
Section 2.11. Maintenance of Security Interests in Loans...................... 4
Section 2.12. Accounts........................................................ 5
Section 2.13. Reserve Account................................................. 5
Section 2.14. Disbursement from the Collection Account........................ 5
Section 2.15. Limitation on Liability of Servicer and Others.................. 5
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of the Servicer.................. 6
ARTICLE IV
ADDITIONAL COVENANTS
Section 4.1. Covenants of the Servicer Regarding the Loans................... 7
ARTICLE V
EVENTS OF SERVICER TERMINATION
Section 5.1. Default......................................................... 8
-i-
TABLE OF CONTENTS
(continued)
ARTICLE VI
SUCCESSOR SERVICER
Section 6.1. Resignation of Servicer......................................... 8
Section 6.2. Appointment of the Successor Servicer........................... 9
Section 6.3. Duties of Servicer.............................................. 9
Section 6.4. Effect of Termination or Resignation............................ 10
ARTICLE VII
INDEMNIFICATION
Section 7.1. Indemnities by the Servicer..................................... 10
Section 7.2. Limitation of Damages; Indemnified Persons...................... 10
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Notices......................................................... 10
Section 8.2. Binding Effect; Assignability................................... 12
Section 8.3. Termination; Survival of Obligations Upon Class C
Maturity Date or Redemption Date................................ 12
Section 8.4. No Proceedings.................................................. 12
Section 8.5. Complete Agreement; Modification of Agreement................... 12
Section 8.6. Amendments and Waivers.......................................... 12
Section 8.7. No Waiver; Remedies............................................. 13
Section 8.8. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.... 13
Section 8.9. Counterparts.................................................... 14
Section 8.10. Severability.................................................... 14
Section 8.11. Section Titles.................................................. 14
Section 8.12. Limited Recourse................................................ 14
Section 8.13. Further Assurances.............................................. 15
Section 8.14. Pledge of Assets................................................ 15
Section 8.15. Waiver of Setoff................................................ 15
Exhibit A Form of Servicer's Certificate
Annex A Definitions and Interpretation
-ii-
This SERVICING AGREEMENT, dated as of November 16, 2004 (this "Agreement"
or "Servicing Agreement"), by and between GE COMMERCIAL EQUIPMENT FINANCING LLC,
SERIES 2004-1, a limited liability company organized under the laws of the State
of Delaware (the "Issuer"), and GENERAL ELECTRIC CAPITAL CORPORATION ("GE
Capital"), in its capacity as the servicer hereunder (the "Servicer").
In consideration of the premises and the mutual covenants hereinafter
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1. Definitions. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in Section 1 of Annex A to this
Agreement.
Section 1.2. Other Interpretive Matters. For purposes of this Agreement,
the other interpretive matters set forth in Section 2 of Annex A shall govern.
All exhibits, schedules, and other attachments hereto, or expressly identified
hereto are incorporated herein by reference and, taken together with this
Agreement, shall constitute but a single agreement.
ARTICLE II
APPOINTMENT OF THE SERVICER; CERTAIN DUTIES
AND RESPONSIBILITIES OF THE SERVICER.
Section 2.1. Appointment of the Servicer. The Issuer hereby appoints the
Servicer as its agent to service the Loans and enforce its rights and interests
in and under the Loans and to serve in such capacity until the termination of
its responsibilities pursuant to Sections 5.1 or 6.1. In connection therewith,
the Servicer hereby accepts such appointment and agrees to perform the duties
and obligations set forth herein. The Servicer may, upon giving prior written
notice to the Issuer, delegate any duties to any Person, or subcontract with a
Sub-Servicer, for the collection, servicing or administration of the Loans;
provided, that (a) the Servicer shall remain liable for the performance of the
duties and obligations of any delegate or the Sub-Servicer pursuant to the terms
hereof and (b) any Sub-Servicing Agreement that may be entered into and any
other transactions or services relating to the Loans involving a Sub-Servicer
shall be deemed to be between the Sub-Servicer and the Servicer alone, and the
Issuer shall not be deemed party thereto and shall have no obligations, duties
or liabilities with respect to the Sub-Servicer.
Section 2.2. Duties and Responsibilities of the Servicer. Subject to the
provisions of this Agreement, the Servicer shall conduct the servicing,
administration and collection of the Loans and shall take, or cause to be taken,
all actions that (a) may be necessary or advisable to service, administer and
collect the Loans from time to time, (b) the Servicer would take if the Loans
were owned by the Servicer, and (c) are consistent with the Credit and
Collection Policies. The Servicer shall also perform on behalf of the Issuer all
of the Issuer's obligations under the
Servicing Agreement
Indenture other than any obligations to pay money and any obligations to be
performed by the Administrator under the Administration Agreement.
Section 2.3. Unrelated Amounts. If the Servicer determines that amounts
which are not property of the Issuer (the "Unrelated Amounts") have been
deposited in the Collection Account, then the Servicer shall provide written
evidence thereof to the Issuer no later than the first Business Day following
the day on which the Servicer had actual knowledge thereof, which evidence shall
be provided in writing. Upon receipt of any such notice, the Servicer shall
withdraw the Unrelated Amounts from the Collection Account, and the same shall
not be treated as Available Amounts on Loans and shall not be subject to the
provisions of Section 2.12.
Section 2.4. Authorization of the Servicer. The Servicer is hereby
authorized to take any and all reasonable steps necessary or desirable and
consistent with the ownership of the Loans by the Issuer and pledge of the Loans
to the Indenture Trustee under the Indenture, in the determination of the
Servicer, to (a) collect all amounts due under the Loans, including endorsing
its name on checks and other instruments representing Available Amounts on the
Loans, executing and delivering any and all instruments of satisfaction or
cancellation or of partial or full release or discharge and all other comparable
instruments with respect to the Loans, and consistent with its normal
procedures, arranging with the Obligor to extend or modify Scheduled Payments in
its discretion, and (b) after the Loans become delinquent and to the extent
permitted under and in compliance with applicable law and regulations, (i)
commence proceedings with respect to the enforcement of payment of the Loans,
(ii) adjust, settle or compromise any payments due thereunder and (iii) initiate
proceedings against any Collateral securing the obligations due under the Loans,
in each case, consistent with the Credit and Collection Policies; provided,
that, with respect to clause (a) and (b) above, the Servicer shall not agree to
any modification of the APR on any Loan or of the amount of any Scheduled
Payment on a Loan if such modification has a Material Adverse Effect on the
Noteholders; and provided, further, that in no event will such modification be
permitted to extend the final payment date beyond the Class C Maturity Date.
Notwithstanding the generality of clause (a) above, the Servicer agrees
that it shall promptly give written notice to the Issuer with a copy to S&P if
the aggregate Loan Value of all Loans with respect to which an extension on
payment of principal thereon has been granted by the Servicer exceeds 10% of the
aggregate Loan Value of the Loans as of the Cut-off Date.
If the Servicer shall commence a legal proceeding to enforce a Loan, the
Issuer (in the case of a Loan other than a Purchased Loan) shall thereupon be
deemed to have automatically assigned, solely for the purpose of collection,
such Loan to the Servicer. If in any enforcement suit or legal proceeding it
shall be held that the Servicer may not enforce a Loan on the ground that it
shall not be a real party in interest or a holder entitled to enforce such Loan,
the Managing Member shall take steps to enforce such Loan, including bringing
suit in its name.
The Issuer shall furnish (or cause to be furnished) the Servicer with any
powers of attorney and other documents necessary or appropriate to enable the
Servicer to carry out its servicing and administrative duties hereunder, and the
Issuer shall assist the Servicer to the fullest extent to enable the Servicer to
collect the Loans and otherwise discharge its duties
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hereunder. In no event shall the Servicer be entitled to make the Issuer a party
to any litigation without the Issuer's express prior written consent.
Section 2.5. Servicing Fees and Servicing Advances. (a) As compensation
for its servicing activities and as reimbursement for its reasonable expenses in
connection therewith, the Servicer shall be entitled to receive the Servicing
Fees for each Collection Period. The Servicer shall be required to pay for all
expenses incurred by it in connection with its activities hereunder (including
any payments to accountants, counsel or any other Person) and shall not be
entitled to any payment therefor other than the Servicing Fees. The Servicer
shall also be entitled to reimbursement for any outstanding Servicing Advances
owing to the Servicer with respect to all preceding Collection Periods.
(b) The Servicer may, but shall have no obligation to, make a
Servicing Advance in the manner and to the extent provided herein, but
only to the extent the Servicer, in its sole discretion, expects to be
reimbursed for such advance. If the Servicer elects to make a Servicing
Advance, prior to the close of business on each Determination Date, the
Servicer will determine the amount of the advance that it has elected to
make on the related Payment Date. The Servicer shall include information
as to such determination in the Servicer's Certificate furnished by it in
accordance with Section 2.7 and shall be obligated to transfer to the
Collection Account on or before 11:00 a.m. (New York City time) on the
related Transfer Date in next day funds the amounts applicable to such
determinations appearing in such Servicer's Certificate. All Servicing
Advances shall be reimbursable to the Servicer, without interest, when a
payment relating to a Loan with respect to which an advance has previously
been made is subsequently received. Upon the determination by the Servicer
that reimbursement from the preceding source is unlikely or
nonrecoverable, it will be entitled to recover unreimbursed advances from
Available Amounts on or in respect of other Loans.
Section 2.6. Covenants of the Servicer. The Servicer covenants and agrees
that from and after the Closing Date and until the earlier of the Class C
Maturity Date or Redemption Date, as applicable:
(a) Ownership of Loans. The Servicer shall identify the Loans
clearly and unambiguously in its Servicing Records to reflect that the
Loans are owned by the Issuer and have been pledged to the Indenture
Trustee under the Indenture.
(b) Compliance with Credit and Collection Policies; Law. The
Servicer shall comply in all material respects with the Credit and
Collection Policies with respect to the Loans and in all material respects
with applicable law with respect to the Loans, unless, in either case,
such failure to comply would not be reasonably expected to cause a
Material Adverse Effect.
Section 2.7. Servicer's Certificate. On each Determination Date the
Servicer shall deliver to the Issuer, with a copy to the Indenture Trustee, the
Seller and the Rating Agencies, a Servicer's Certificate in the form set forth
as Exhibit A hereto and containing all information necessary to make the
distributions pursuant to Section 2.14 and the deposits to the Collection
Account pursuant to Section 2.12 for the Collection Period preceding the date of
such Servicer's
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Certificate. Loans to be repurchased by the Seller shall be identified by the
Servicer by account number with respect to such Loan (as specified in the
Schedule of Loans delivered on the Closing Date).
Section 2.8. Annual Statement as to Compliance; Notice of Default. (a) The
Servicer shall deliver to the Issuer, with a copy to the Indenture Trustee, on
or before March 15 of each year, an Officers' Certificate, dated as of December
31 of the preceding year, stating that: (i) a review of the activities of the
Servicer during the preceding 12-month period (or, in the case of the first such
certificate, from the Cut-off Date to December 31, 2005) and of its performance
under this Agreement has been made under such officers' supervision and (ii) to
the best of such officers' knowledge, based on such review, the Servicer has
fulfilled all its obligations under this Agreement throughout such year or, if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officers and the nature and status thereof.
(b) The Servicer shall deliver to the Issuer, with a copy to the
Indenture Trustee, promptly after having obtained knowledge thereof, but
in no event later than five Business Days thereafter, written notice in an
Officers' Certificate of any event that, with the giving of notice or
lapse of time, or both, would become a Servicer Default under Section 5.1.
Section 2.9. Annual Independent Certified Public Accountants' Report. The
Servicer shall cause a firm of independent certified public accountants, which
may also render other services to the Servicer, any Seller or any other
Affiliate of any of the Sellers or Servicer, as applicable, to deliver to the
Issuer on or before March 15 of each year commencing in 2005 a report, addressed
to the board of directors of the Servicer, the Issuer and the Indenture Trustee,
summarizing the results of certain procedures with respect to certain documents
and records relating to the servicing of the Loans during the preceding calendar
year (or, in the case of the first such report, during the period from the
Cut-off Date to December 31, 2005). The procedures to be performed and reported
upon by the independent public accountants shall be those agreed to by the
Servicer and the Issuer or its designee.
Such report will also indicate that the firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
Section 2.10. Appointment of Subservicer. The Servicer may at any time
appoint a subservicer to perform all or any portion of its obligations as
Servicer hereunder; provided, that the Servicer shall remain obligated and be
liable to the Issuer, for the servicing and administering of the Loans in
accordance with the provisions hereof without diminution of such obligation and
liability by virtue of the appointment of such subservicer and to the same
extent and under the same terms and conditions as if the Servicer alone were
servicing and administering the Loans. The fees and expenses of the subservicer
shall be as agreed between the Servicer and its subservicer from time to time
and the Issuer shall have no responsibility therefor.
Section 2.11. Maintenance of Security Interests in Loans. The Servicer
shall, in accordance with the Credit and Collection Policies, take such steps as
are necessary to maintain perfection of the security interest created by each
Loan in any of the Equipment. The Issuer
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hereby authorizes the Servicer to take such steps as are necessary to re-perfect
such security interest on behalf of the Issuer or its assigns for any reason,
including the filing of UCC financing statements without the related debtor's
signature. Without limiting the generality of the foregoing, the Servicer shall
make or maintain all required federal lien filings or registrations in the name
of the Issuer, as applicable. Upon discovery by the Issuer or the Servicer of a
breach of its obligation to maintain perfection of the security interest in each
Loan pursuant to this Section 2.11, which breach is reasonably likely to have a
Material Adverse Effect, the party discovering the same shall give prompt
written notice thereof to the other party hereto. As liquidated damages for such
breach, the Issuer shall, on the Transfer Date relating to the Collection Period
during which the breach is discovered, request the Servicer to, and the Servicer
shall pay to, or at the direction of, the Issuer the Purchase Amount for the
applicable Loans (measured at the end of the Collection Period during which such
breach is discovered). Upon such payment, all rights, title and interest of the
Issuer in and to such Loans will be deemed to be automatically released without
the necessity of any further action by the Issuer, the Servicer or any other
party and such Loans will become the property of the Servicer.
Section 2.12. Accounts. As of the Closing Date, the Servicer shall
establish and maintain the Collection Account and the Reserve Account in the
name of the Issuer, each of which shall be an Eligible Deposit Account.
(a) Not later than 10:00 a.m. (New York City time) on each Transfer
Date, the Servicer shall deposit into the Collection Account all Available
Amounts with respect to the related Collection Period that have not
previously been deposited into the Collection Account (it being understood
that no such deposits are required to be made prior to the Transfer Date
unless a Daily Deposit Event has occurred).
(b) Upon the occurrence and during the continuation of a Daily
Deposit Event, the Servicer shall transfer to the Collection Account, on
each Business Day in same day funds, all Available Amounts then held or
thereafter received by it that are required to be deposited into the
Collection Account, within two Business Days after receipt thereof.
Section 2.13. Reserve Account. The Servicer shall determine the amounts
for deposit into or for withdrawal from the Reserve Account on each Transfer
Date in accordance with the provisions of Section 8.4 of the Indenture.
Section 2.14. Disbursement from the Collection Account. On each Transfer
Date, the Servicer, on behalf of the Issuer, shall withdraw from the Collection
Account for payment to itself an amount equal to any accrued but unpaid
Servicing Fee and any accrued but unpaid Servicing Advances owing to the
Servicer (based on the information contained in the Servicer's Certificate
delivered on the related Determination Date pursuant to Section 2.7) in
accordance with Section 2.5.
Section 2.15. Limitation on Liability of Servicer and Others. Neither the
Servicer nor any of the directors, officers, employees or agents of the Servicer
shall be under any liability to the Issuer or the Noteholders, except as
provided under this Agreement, for any action taken or for refraining from the
taking of any action pursuant to this Agreement or for errors in judgment;
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provided, however, that this provision shall not protect the Servicer or any
such Person against any liability that would otherwise be imposed by reason of
willful misconduct, bad faith or negligence in the performance of its duties or
by reason of reckless disregard of obligations and duties under this Agreement.
The Servicer and any director, officer, employee or agent of the Servicer may
rely in good faith on the advice of counsel or on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder.
Except as provided in this Agreement, the Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action that shall not be
incidental to its duties to service the Loans in accordance with this Agreement,
and that in its opinion may involve it in any expense or liability; provided,
however, that the Servicer may undertake any reasonable action that it may deem
necessary or desirable in respect of this Agreement, the Related Documents and
the rights and duties of the parties to this Agreement, the other Related
Documents and the interests of the Noteholders under the Indenture.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of the Servicer. The Servicer
represents and warrants to the Issuer as of the Closing Date as follows:
(a) It is a corporation, duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or
organization and is duly qualified to do business, and is in good
standing, in each jurisdiction in which the servicing of the Loans
hereunder requires it to be so qualified, except where the failure to
comply would not reasonably be expected to have a Material Adverse Effect.
(b) It has the power and authority to execute and deliver this
Agreement and to perform the transactions contemplated hereby.
(c) This Agreement has been duly authorized, executed and delivered
by the Servicer and constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms, subject to any
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the
enforceability of creditors' rights generally and general equitable
principles, whether applied in a proceeding at law or in equity.
(d) No consent of, notice to, filing with or permits, qualifications
or other action by any Governmental Authority or any other party is
required for the due execution, delivery and performance of this
Agreement, other than consents, notices, filings and other actions which
have been obtained or made or where the failure to get such consent or
take such action, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect.
(e) There is no pending or, to its actual knowledge, threatened
litigation of a material nature against or affecting it, in any court or
tribunal, before any arbitrator of
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any kind or before or by any Governmental Authority (i) asserting the
invalidity of this Agreement, or (ii) seeking any determination or ruling
that might materially and adversely affect the validity or enforceability
of this Agreement.
ARTICLE IV
ADDITIONAL COVENANTS
Section 4.1. Covenants of the Servicer Regarding the Loans. (a)
Maintenance of Files. The Servicer shall, for not less than three years or for
such longer period as may be required by law, from the date on which any Loan is
paid in full, maintain the Records with respect to each Loan, including records
of all payments received, credits granted and property returned. The Servicer
will permit representatives of the Issuer or its designee at any reasonable time
during normal business hours, and at such times outside of normal business hours
as the Issuer shall reasonably request, (i) to inspect and make copies of and
abstracts from such Records, (ii) to visit the properties of the Servicer
utilized in connection with the collection, processing or servicing of the Loans
for the purpose of examining such Records, and (iii) to discuss matters relating
to the Loans or the Servicer's performance under this Agreement with any
officer, employee or accountants of the Servicer having knowledge of such
matters. In connection therewith, the Issuer shall institute procedures to
permit it to confirm the Loan Value in respect of any Loan; provided that no one
other than the Servicer, subject to any other arrangements made by the Issuer,
will contact an Obligor unless a Servicer Default has occurred. The Servicer
agrees to render to the Issuer such clerical and other assistance as may be
reasonably requested with regard to the foregoing.
(b) Servicer Default. If a Servicer Default shall have occurred and
be continuing, promptly upon request therefor, the Servicer shall deliver
to the Issuer records reflecting activity through the close of business on
the immediately preceding Business Day. Upon the occurrence and during the
continuation of a Servicer Default, the Servicer shall (i) deliver and
turn over to the Issuer or to its representatives, or at the option of the
Issuer shall provide the Issuer or its representatives with access to, at
any time, on demand of the Issuer, all of the Servicer's facilities,
personnel, books and records pertaining to the Loans, including all
Records, (ii) allow the Issuer to occupy the premises of the Servicer
where such books, records and Records are maintained, and (iii) utilize
such premises, the equipment thereon and any personnel of the Servicer
that the Issuer may wish to employ to administer, service and collect the
Loans.
(c) Notice of Adverse Claim. The Servicer shall advise the Issuer
promptly, in reasonable detail, (i) of any claim of ownership or Lien
known to it made or asserted against any Loan, other than any ownership
interest or Lien created under the Sale Agreement or the Purchase and Sale
Agreement, any Lien created under the Indenture or any Permitted
Encumbrances (as defined under the Sale Agreement or the Purchase and Sale
Agreement, as applicable), and (ii) of the occurrence of any event known
to it which would have a material adverse effect on the aggregate value of
the Loans.
(d) Further Assurances. The Servicer shall furnish to the Issuer
from time to time such statements and schedules further identifying and
describing the Loans and such
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other reports in connection with the Loans as the Issuer may reasonably
request, all in reasonable detail.
ARTICLE V
EVENTS OF SERVICER TERMINATION
Section 5.1. Default. If any of the following events shall occur
(regardless of the reason therefor) with respect to the Servicer:
(a) The Servicer shall (i) fail to make or give instructions for any
deposit, transfer or payment required to be made hereunder and the same
shall remain unremedied for three Business Days, or (ii) fail or neglect
to perform, keep or observe in any material respect any other provision of
this Agreement and the same shall remain unremedied for fifteen days after
written notice thereof shall have been given by the Issuer to the
Servicer;
(b) Any representation or warranty of the Servicer herein or in any
written statement, report, financial statement or certificate made or
delivered by the Servicer to the Issuer hereto or thereto shall be untrue
or incorrect in any material respect as of the date when made or deemed
made and shall not be corrected for a period of 60 days after either (i)
any Authorized Officer of the Servicer becomes aware thereof or (ii)
notice thereof has been given to such Person by the Issuer; or
(c) A Bankruptcy Event shall have occurred and be continuing with
respect to the Servicer;
then, upon the occurrence of any of such events (each, a "Servicer Default"),
the Issuer may deliver a notice (a "Servicer Termination Notice") to the
Servicer, terminating the servicing responsibilities of the Servicer hereunder,
without demand, protest or further notice of any kind, all of which are hereby
waived by the Servicer. Upon the delivery of any such notice, all authority and
power of the Servicer under this Agreement shall pass to and be vested in the
Successor Servicer acting pursuant to Section 6.2, provided, that
notwithstanding anything to the contrary herein, the Servicer agrees to act as
Servicer and to continue to follow the procedures set forth in this Agreement
with respect to Available Amounts on the Loans under this Agreement until a
Successor Servicer has assumed the responsibilities and obligations of the
Servicer in accordance with Section 6.2.
ARTICLE VI
SUCCESSOR SERVICER
Section 6.1. Resignation of Servicer. The Servicer may resign under the
circumstances set forth in clause (a) or (b) of this Section 6.1.
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(a) The Servicer may resign from its obligations and duties
hereunder if it finds a replacement servicer satisfying the eligibility
criteria set forth in Section 6.2. No such resignation shall become
effective until the replacement servicer shall have obtained the Issuer's
approval and appointment pursuant to Section 6.2.
(b) The Servicer may resign from the obligations and duties hereby
imposed on it upon its determination that (i) the performance of its
duties hereunder has become impermissible under applicable law, and (ii)
there is no reasonable action which the Servicer could take to make the
performance of its duties hereunder permissible under applicable law. No
such resignation shall become effective until a Successor Servicer shall
have assumed the responsibilities and obligations of the Servicer in
accordance with Section 6.2.
Section 6.2. Appointment of the Successor Servicer. In connection with the
termination of the Servicer's responsibilities under this Agreement pursuant to
Section 5.1 or 6.1, the Issuer shall within 30 days after the giving of a
Servicer Termination Notice pursuant to Section 5.1 or as soon as practicable
after a resignation of the Servicer pursuant to Section 6.1, appoint a successor
servicer that shall have a long-term debt rating of at least "BBB-" by S&P and
"Baa3" by Moody's. The successor servicer shall succeed to all rights and assume
all of the responsibilities, duties and liabilities of the Servicer under this
Agreement (such successor servicer being referred to as the "Successor
Servicer"); provided, that the Successor Servicer shall have no responsibility
for any actions of the Servicer prior to the date of its appointment as
Successor Servicer. The Successor Servicer shall accept its appointment by
executing, acknowledging and delivering to the Issuer an instrument in form and
substance acceptable to the Issuer, and by providing prior written notice of
such appointment to the Indenture Trustee. Notice shall be given to the Rating
Agencies of the appointment of any Successor Servicer.
Section 6.3. Duties of Servicer. At any time following the appointment of
a Successor Servicer:
(a) the Servicer agrees that it shall terminate its activities as
servicer hereunder in a manner acceptable to the Issuer so as to
facilitate the transfer of servicing to the Successor Servicer, including
timely delivery (i) to the Issuer of any funds that were required to be
deposited in the Collection Account and the Reserve Account and (ii) to
the Successor Servicer, at a place selected by the Successor Servicer, of
all Servicing Records and other information with respect to the Loans. The
Servicer shall account for all funds and shall execute and deliver such
instruments and do such other things as may reasonably be required to more
fully and definitely vest and confirm in the Successor Servicer all
rights, powers, duties, responsibilities, obligations and liabilities of
the Servicer; and
(b) the Servicer shall terminate each Sub-Servicing Agreement that
may have been entered into by it and the Successor Servicer shall not be
deemed to have assumed any of such outgoing servicer's interest therein or
to have replaced such outgoing servicer as a party to any such
Sub-Servicing Agreement.
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Section 6.4. Effect of Termination or Resignation. Any termination or
resignation of the Servicer under this Agreement shall not affect any claims
that the Issuer may have against the Servicer for events or actions taken or not
taken by the Servicer arising prior to any such termination or resignation.
ARTICLE VII
INDEMNIFICATION
Section 7.1. Indemnities by the Servicer. Without limiting any other
rights that the Issuer or its Affiliates or any Stockholder, director, officer,
employee, or agent or incorporator thereof (each, a "Servicer Indemnified
Person") may have hereunder or under applicable law, the Servicer hereby agrees
to indemnify each Servicer Indemnified Person from and against any and all
Indemnified Amounts which may be imposed on, incurred by or asserted against a
Servicer Indemnified Person in any way arising out of or relating to any
material breach of the Servicer's obligations under this Agreement; excluding,
however, Indemnified Amounts to the extent resulting from (i) bad faith, gross
negligence or willful misconduct on the part of the Servicer Indemnified Person
or (ii) recourse for uncollectible Loans. Any Indemnified Amounts subject to the
indemnification provisions of this Section 7.1 shall be paid to the Servicer
Indemnified Person within ten Business Days following demand therefor.
Section 7.2. Limitation of Damages; Indemnified Persons. NO SERVICER PARTY
TO THIS AGREEMENT SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS
AGREEMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR
ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT,
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF
ANY TRANSACTION CONTEMPLATED HEREUNDER.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other parties, or whenever any of the parties desires to give or
serve upon any other parties any communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and shall be deemed to have been validly
served, given or delivered (a) upon the earlier of actual receipt and three
Business Days after deposit in the United States mail, registered or certified
mail, return receipt requested, with proper postage prepaid, (b) upon
transmission, when sent by facsimile or other electronic transmission (with such
transmission promptly confirmed by delivery of a copy by personal delivery or
United States mail as otherwise provided in this Section 8.1), (c) one Business
Day after deposit with a reputable overnight courier with all charges prepaid or
(d) when delivered, if hand-delivered by messenger, all of which shall be
addressed to the party to be notified and sent to the address or
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facsimile number indicated below or to such other address (or facsimile number)
as may be substituted by notice given as herein provided. The giving of any
notice required hereunder may be waived in writing by the party entitled to
receive such notice. Failure or delay in delivering copies of any notice,
demand, request, consent, approval, declaration or other communication to any
Person designated in any written notice provided hereunder to receive copies
shall in no way adversely affect the effectiveness of such notice, demand,
request, consent, approval, declaration or other communication. Notwithstanding
the foregoing, whenever it is provided herein that a notice is to be given to
any other party hereto by a specific time, such notice shall only be effective
if actually received by such party prior to such time, and if such notice is
received after such time or on a day other than a Business Day, such notice
shall only be effective on the immediately succeeding Business Day.
If to GE Capital, as Servicer:
General Electric Capital Corporation, as Servicer
44 Old Ridgebury Road
Danbury, Connecticut 06810
Attention: General Counsel
Telephone: (203) 796-1000
Facsimile: (203) 796-1313
If to the Issuer:
GE Commercial Equipment Financing LLC, Series 2004-1
44 Old Ridgebury Road
Danbury, Connecticut 06810
Attention: Capital Markets Operations
Telephone: (203) 796-5518
Facsimile: (203) 796-5554
If to the Rating Agencies:
Moody's Investors Service, Inc.
ABS Monitoring Department
99 Church Street
New York, New York 10007
Standard & Poor's Ratings Services,
A division of The McGraw-Hill Companies, Inc.
55 Water Street
New York, New York 10041
Attention: Asset-Backed Surveillance Department
Fitch, Inc.
One State Street Plaza
New York, New York 10004
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If to Indenture Trustee:
JPMorgan Chase Bank, N.A.
4 New York Plaza, 6th Floor
New York, New York 10004
Section 8.2. Binding Effect; Assignability. This Agreement shall be
binding upon and inure to the benefit of the Issuer and the Servicer and their
respective successors and permitted assigns. Except as set forth in Section 2.1,
or Article VI, the Servicer may not assign, transfer, hypothecate or otherwise
convey any of its rights or obligations hereunder or interests herein without
the express prior written consent of the Issuer and unless the Rating Agency
Condition shall have been satisfied with respect to any such assignment. Any
such purported assignment, transfer, hypothecation or other conveyance by the
Servicer without the prior express written consent of the Issuer shall be void.
The Issuer may, at any time, assign any of its rights and obligations under this
Agreement to any Person and any such assignee may further assign at any time its
rights and obligations under this Agreement, in each case, without the consent
of the Servicer. Each of the Issuer and the Servicer acknowledges and agrees
that, upon any such assignment, the assignee thereof may enforce directly, all
of the obligations of the Issuer or the Servicer hereunder, as applicable.
Section 8.3. Termination; Survival of Obligations Upon Class C Maturity
Date or Redemption Date. This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms, and
shall remain in full force and effect until the earlier of the Class C Maturity
Date or the Redemption Date; provided, that the rights and remedies provided for
herein with respect to any breach of any representation or warranty made by the
Servicer pursuant to Article III, the indemnification and payment provisions of
Article VII and Sections 8.4 and 8.12 shall be continuing and shall survive the
later of the Class C Maturity Date or the Redemption Date, as applicable.
Section 8.4. No Proceedings. The Servicer hereby agrees that, from and
after the Closing Date and until the date one year plus one day following the
earlier of the Class C Maturity Date or the Redemption Date, as applicable, it
will not, directly or indirectly, institute or cause to be instituted against
the Issuer any proceeding of the type referred to in the definition of
"Bankruptcy Event"; provided that the foregoing shall not in any way limit the
Servicer's right to pursue any other creditor rights or remedies that the
Servicer may have for claims against the Issuer.
Section 8.5. Complete Agreement; Modification of Agreement. This Agreement
constitutes the complete agreement among the parties hereto with respect to the
subject matter hereof, supersedes all prior agreements and understandings
relating to the subject matter hereof, and may not be modified, altered or
amended except as set forth in Section 8.6.
Section 8.6. Amendments and Waivers. No amendment, modification,
termination or waiver of any provision of this Agreement, or any consent to any
departure by any party hereto therefrom, shall in any event be effective unless
the same shall be in writing and signed by each of the parties hereto.
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Section 8.7. No Waiver; Remedies. The failure by the Issuer, at any time
or times, to require strict performance by the Servicer of any provision of this
Agreement shall not waive, affect or diminish any right of the Issuer thereafter
to demand strict compliance and performance herewith. Any suspension or waiver
of any breach or default hereunder shall not suspend, waive or affect any other
breach or default whether the same is prior or subsequent thereto and whether
the same or of a different type. None of the undertakings, agreements,
warranties, covenants or representations of the Servicer contained in this
Agreement and no breach or default by the Servicer hereunder, shall be deemed to
have been suspended or waived by the Issuer unless such waiver or suspension is
by an instrument in writing signed by an officer of or other duly authorized
signatory of the Issuer and directed to the Servicer specifying such suspension
or waiver. The rights and remedies of the Issuer under this Agreement shall be
cumulative and nonexclusive of any other rights and remedies that the Issuer may
have under any other agreement, including the other Related Documents, by
operation of law or otherwise.
Section 8.8. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS LAW, BUT
WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS THEREOF) AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(a) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL
HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF
OR RELATING TO THIS AGREEMENT; PROVIDED, THAT EACH PARTY HERETO
ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY. EACH
PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY
WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS
TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE
BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS
ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 8.1 AND THAT SERVICE SO MADE
SHALL BE DEEMED COMPLETED UPON THE
Servicing Agreement
-13-
EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT
IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION
SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW.
(b) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED
AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS
TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND
OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 8.9. Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement. Executed counterparts may be delivered electronically.
Section 8.10. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
Section 8.11. Section Titles. The section titles and table of contents
contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the
parties hereto.
Section 8.12. Limited Recourse. (a) The obligations of the Issuer under
this Agreement are solely the obligations of the Issuer. No recourse shall be
had for any obligation or claim arising out of or based upon this Agreement
against any incorporator, shareholder, officer, manager, member or director,
past, present or future, of the Issuer or of any successor or of its constituent
members or its other Affiliates, either directly or through the Issuer or any
successor, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by acceptance hereof and as part of the consideration for the acceptance
hereof, expressly waived and released. Any accrued obligations owing by the
Issuer under this Agreement shall be payable by the Issuer solely to the extent
that funds are available therefor from time to time in accordance with the
provisions of Section 2.12 (provided that such accrued obligations shall not be
extinguished until paid in full).
Servicing Agreement
-14-
(b) The obligations of the Servicer under this Agreement are solely
the obligations of the Servicer. No recourse shall be had for the payment
of any amount owing hereunder or any other obligation or claim arising out
of or based upon this Agreement, against any shareholder, employee,
officer, manager, member or director, agent or organizer, past, present or
future, of the Servicer or of any successor thereto, either directly or
through the Servicer or any successor thereto, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by
acceptance hereof and as part of the consideration for the acceptance
hereof, expressly waived and released.
Section 8.13. Further Assurances. The Servicer shall, at its sole cost and
expense, promptly and duly execute and deliver any and all further instruments
and documents, and take such further action, that may be necessary or desirable
or that the Issuer may request to enable the Issuer to exercise and enforce its
rights under this Agreement or otherwise carry out more effectively the
provisions and purposes of this Agreement.
Section 8.14. Pledge of Assets. The Servicer hereby acknowledges that the
Issuer has granted a security interest in the Collateral to the Indenture
Trustee under the Indenture, and hereby waives any defenses it may have against
the Indenture Trustee for the enforcement of this Agreement in the event of
foreclosure by the Indenture Trustee against the Collateral. Accordingly, the
parties hereto agree that, in the event of foreclosure by the Indenture Trustee
against the Collateral, the Indenture Trustee shall have the right to enforce
this Agreement and the full performance by the parties hereto of their
obligations and undertakings set forth herein. The Servicer hereby agrees to
deliver to the Indenture Trustee a copy of all notices to be delivered by the
Servicer to the Issuer hereunder.
Section 8.15. Waiver of Setoff. The Servicer hereby waives any right of
setoff that it may have for amounts owing to it under or in connection with this
Agreement.
[Signatures Follow]
Servicing Agreement
-15-
IN WITNESS WHEREOF, the parties have caused this Servicing Agreement to be
executed by their respective representatives thereunto duly authorized, as of
the date first above written.
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES
2004-1
BY: CEF EQUIPMENT HOLDING, L.L.C.,
ITS MANAGING MEMBER
Moody's Investors Service, Inc.
ABS Monitoring Department
99 Church Street
New York, New York 10007
Standard & Poor's Ratings Services,
A division of The McGraw-Hill Companies, Inc.
55 Water Street
New York, New York 10041
Attention: Asset Backed Surveillance Department
Fitch, Inc.
55 E. Monroe
Suite 3500
Chicago, IL 60610
Attn: ABS Surveillance
JPMorgan Chase Bank, N.A.
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Institutional Trust Servicer Structural Finance
[Form of Certificate to be discussed]
Servicing Agreement
A-1
FINAL VERSION
ANNEX A
to
SERVICING AGREEMENT
dated as of
November 16, 2004
Definitions and Interpretation
Annex A to
Servicing Agreement
SECTION 1. Definitions and Conventions. Capitalized terms used in the
Servicing Agreement shall have (unless otherwise provided elsewhere therein) the
following respective meanings:
"Accounting Changes" means, with respect to any Person an adoption of GAAP
different from such principles previously used for reporting purposes as defined
in the Accounting Principles Board Opinion Number 20.
"Administration Agreement" means the Administration Agreement, dated as of
November 16, 2004, between the Administrator and the Issuer.
"Administration Fee" is defined in Section 3 of the Administration
Agreement.
"Administrator" means General Electric Capital Corporation, in its
capacity as Administrator under the Administration Agreement, or any other
Person designated as a successor administrator.
"Affiliate" means, with respect to any Person, (a) each Person that,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, five percent (5%) or more of the Stock having
ordinary voting power in the election of directors of such Person, (b) each
Person that controls, is controlled by, or is under common control with such
Person, or (c) each of such Person's officers, directors, joint venturers and
partners. For the purposes of this definition, "control" of a Person means the
possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"Annual Percentage Rate" or "APR" of a Loan means, the interest rate or
annual rate of finance charges stated in or, if not explicitly stated, the
implicit finance charge used by the Servicer to calculate periodic payments with
respect to the related Loan.
"Appendices" means, with respect to any Related Document, all exhibits,
schedules, annexes and other attachments thereto, or expressly identified
thereto.
"Authorized Officer" means, with respect to any corporation, trust or
limited liability company, as appropriate, the Chairman or Vice-Chairman of the
Board, the President, any Vice President, the Secretary, the Treasurer, any
Assistant Secretary, any Assistant Treasurer, the Managing Member, and each
other officer, employee or member of such corporation, trust or limited
liability company, as appropriate, specifically or similar governing body of
such limited liability company or trust to sign agreements, instruments or other
documents on behalf of such corporation authorized in resolutions of the board
of directors of such corporation or similar governing body of such limited
liability company or trust, as appropriate.
"Available Amounts" means, with respect to any Payment Date all payments
made by or on behalf of the Obligors (excluding any late fees, prepayment
charges, assumption fees, modifications and other administrative fees or similar
charges allowed by applicable law with respect to the Loans that constitute part
of the Servicing Fees) received during the related Collection Period; any
Recoveries received during the related Collection Period; any Swap
Annex A to
Servicing Agreement
Payments Incoming and any Swap Termination Payments received pursuant to the
Swap Agreement with respect to such Payment Date; any proceeds from insurance
policies covering the Equipment or related Obligor received during the related
Collection Period; Liquidation Proceeds received with respect to the related
Collection Period; the Purchase Amount of each Loan that became a Purchased Loan
during the related Collection Period (to the extent deposited into the
Collection Account); Investment Earnings for such Payment Date; Servicing
Advances received during the related Collection Period; and payments made by a
lessee pursuant to its obligation (if any) to pay the Termination Value pursuant
to the related Loan received during the related Collection Period; provided,
however, that the Available Amounts shall not include all payments or proceeds
(including Liquidation Proceeds) of any Loans the Purchase Amount of which has
been included in the Available Amounts in a prior Collection Period; provided
further, with respect to the first Payment Date, Available Amounts will exclude
payments and proceeds of interest on the Loans from the Cut-off Date through
November 1, 2004.
"Bankruptcy Code" means the provisions of title 11 of the United States
Code, 11 U.S.C. Sections 101 et seq. as amended from time to time.
"Bankruptcy Event" means, as to any Person, any of the following events:
(a) a case or proceeding shall have been commenced against such Person seeking a
decree or order in respect of such Person (i) under the Bankruptcy Code or any
other applicable federal, state or foreign bankruptcy or other similar law, (ii)
appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator
(or similar official) for any such Person or for any substantial part of such
Person's assets, or (iii) ordering the winding-up or liquidation of the affairs
of any such Person; or (b) such Person shall (i) file a petition seeking relief
under the Bankruptcy Code or any other applicable federal, state or foreign
bankruptcy or other similar law, (ii) consent or fail to object in a timely and
appropriate manner to the institution of proceedings thereunder or to the filing
of any such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar
official) for such Person or for any substantial part of such Person's assets,
(iii) make an assignment for the benefit of creditors, or (iv) take any
corporate action in furtherance of any of the foregoing.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which banks are required or permitted to be closed in the State of New York or
the State of Connecticut.
"CEF Limited Liability Company Agreement" means the Second Amended and
Restated Limited Liability Company Agreement of CEF dated September 25, 2003 as
the same may be amended and supplemented from time to time.
"Class C Maturity Date" is defined in the Indenture.
"Closing Date" means November 16, 2004.
"Collateral" is defined in the Indenture.
"Collection Account" means the account designated as such, established and
owned by the Issuer and maintained in accordance with Section 8.2 of the
Indenture.
Annex A to
Servicing Agreement
-2-
"Collection Period" means, with respect to any Payment Date, the calendar
month preceding the month in which the Payment Date occurs (or, if for the first
Payment Date, the period from and including the day after the Cut-off Date to
and including the last day of the calendar month preceding the calendar month in
which the first Payment Date occurs).
"Collections" is defined in the Indenture.
"Credit and Collection Policies" or "Credit and Collection Policy" means
the policies, practices and procedures adopted by the Issuer on the Closing Date
for providing equipment loans secured by transportation equipment, industrial
equipment, furniture and fixtures, construction equipment, medical and dental
equipment, technology and telecommunications equipment, maritime assets or other
equipment, including the policies and procedures for determining the
creditworthiness of Obligors and the extension of credit to Obligors, or
relating to the maintenance of such types of loans and collections on such types
of loans.
"Cut-off Date" is defined in the Indenture.
"Daily Deposit Event" means (i) a reduction in the Servicer's rating below
"BBB-" by S&P or "A2" by Moody's, (ii) the reduction of General Electric
Company's long-term debt rating below "A" by S&P or (iii) the Servicer is not a
direct or indirect subsidiary of General Electric Company.
"Defaulted Loan" is defined in the Purchase and Sale Agreement.
"Determination Date" means with respect to any Transfer Date, the second
Business Day prior to such Transfer Date.
"Eligible Deposit Account" means: (a) a segregated deposit account
maintained with a depository institution or trust company whose short-term
unsecured debt obligations are rated at least A-1+ by S&P and P-1 by Moody's,
(b) a segregated account which is either (i) maintained in the corporate trust
department of the Indenture Trustee or (ii) maintained with a depository
institution or trust company whose long term unsecured debt obligations are
rated at least BBB- by S&P and Baa3 by Moody's, or (c) a segregated trust
account or similar account maintained with a federally or state chartered
depository institution whose long term unsecured debt obligations are rated at
least BBB- by S&P and Baa3 by Moody's subject to regulations regarding fiduciary
funds on deposit substantially similar to 12 C.F.R. Section 9.10(b) in effect on
the Closing Date.
"Equipment" means any transportation equipment, industrial equipment,
furniture and fixtures, construction equipment, medical and dental equipment,
technology and telecommunications equipment, maritime assets or other equipment,
together with all accessions thereto securing an Obligor's indebtedness under
the respective Loan.
"Fitch" means Fitch, Inc. and its successors and assigns.
Annex A to
Servicing Agreement
-3-
"GAAP" means generally accepted accounting principles in the United States
of America as in effect on the Closing Date, modified by Accounting Changes as
GAAP is further defined in Section 2(a) of this Annex A.
"GE Capital" means General Electric Capital Corporation, a Delaware
corporation.
"GECT" means General Electric Credit Corporation of Tennessee, a Tennessee
corporation.
"Governmental Authority" is defined in the Sale Agreement.
"Indemnified Amounts" means, with respect to any Person, any and all
suits, actions, proceedings, claims, damages, losses, liabilities and expenses
(including reasonable attorneys' fees and disbursements and other costs of
investigation or defense, including those incurred upon any appeal).
"Indenture" means the Indenture, dated November 16, 2004, between the
Issuer and the Indenture Trustee, as the same may be amended and supplemented
from time to time.
"Indenture Trustee" means JPMorgan Chase Bank, N.A., not in its individual
capacity but solely as Indenture Trustee under the Indenture, or any successor
Indenture Trustee under the Indenture.
"Investment Earnings" means, with respect to any Payment Date, the
interest and other investment earnings (net of losses and investment expenses)
on amounts on deposit in the Trust Accounts to be included as part of
Collections pursuant to Section 8.6(a) of the Indenture.
"Issuer" means GE Commercial Equipment Financing LLC, Series 2004-1, a
Delaware limited liability company, until a successor replaces it and,
thereafter, means the successor and, for purposes of any provision contained in
the Indenture and required by the Trust Indenture Act of 1939, each other
obligor on the notes issued pursuant to the Indenture.
"Issuer Limited Liability Company Agreement" means the Limited Liability
Company Agreement of the Issuer, dated as of November 16, 2004, among the
Managing Member and the Issuer, as the same may be amended or supplemented from
time to time.
"Lien" means a security interest (as such term is defined in Section 1-201
of Article 1 of the UCC), lien, charge, pledge, equity or encumbrance of any
kind, other than tax liens, mechanics' liens and any liens that attach to the
related Loan by operation of law as a result of any act or omission by the
related Obligor.
"Liquidated Loan" means any Loan (i) liquidated through the sale or other
disposition of all or a portion of the related Equipment, (ii) that has been
charged off in its entirety in accordance with the Credit and Collection Policy
without realizing upon the Equipment or (iii) the due date of any Scheduled
Payment of which has been extended, at any time after the Cut-off Date for an
aggregate period of 12 or more calendar months.
Annex A to
Servicing Agreement
-4-
"Liquidation Proceeds" means, with respect to any Liquidated Loan, the
amounts collected in respect thereof from whatever source (including the
proceeds of insurance policies with respect to the related Equipment or Obligor)
during the Collection Period in which it became a Liquidated Loan, net of the
sum of any amounts expended in connection with such liquidation and any amounts
required by law to be remitted to the Obligor on such Liquidated Loan or any
creditor of such Obligor to the extent required by applicable law or agreement.
"Loan" means any Loan included in the Schedule of Loans and any agreement
(including any invoice) pursuant to, or under which, an Obligor shall be
obligated to make payments with respect to any Loan.
"Loan Value" is defined in the Purchase and Sale Agreement.
"Managing Member" means CEF Equipment Holding, L.L.C., a Delaware limited
liability company or any successor Managing Member under the Issuer Limited
Liability Company Agreement.
"Material Adverse Effect" means, with respect to any Person, a material
adverse effect on (a) the business, assets, liabilities, operations, prospects
or financial or other condition of such Person, (b) the ability of such Person
to perform any of its obligations under the Related Documents in accordance with
the terms thereof, (c) the validity or enforceability of any Related Document or
the rights and remedies of such Person under any Related Document or (d) the
Loans, as applicable, therefor, any interest related thereto or the ownership
interests or Liens of such Person thereon or the priority of such interests or
Liens.
"Moody's" means Moody's Investors Service, Inc. or any successor thereto.
"Note Depository Agreement" means the agreement among the Issuer, the
Indenture Trustee and The Depository Trust Company, as the initial clearing
agency, dated as of the Closing Date.
"Note Register" has the meaning specified in Section 2.4 of the Indenture.
"Noteholder" means the person in whose name a Note is registered on the
Note Register.
"Notes" is defined in the Indenture.
"Obligor" means, as to each Loan, any Person who owes payments under the
Loan.
"Officer's Certificate" means, with respect to any Person, a certificate
signed by an Authorized Officer of such Person.
"Payment Date" means, with respect to each Collection Period, the 20th day
of the calendar month following the end of that Collection Period, or, if such
day is not a Business Day, the next Business Day, commencing on December 20,
2004.
Annex A to
Servicing Agreement
-5-
"Person" means any individual, sole proprietorship, partnership, joint
venture, unincorporated organization, trust, association, corporation (including
a business trust), limited liability company, institution, public benefit
corporation, joint stock company, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Precomputed Loan" means any Loan under which the portion of a payment
allocable to earned interest (which may be referred to in the related Loan as an
add-on finance charge) and the portion allocable to principal are determined
according to the sum of periodic balances, the sum of monthly payments or any
equivalent method or are monthly actuarial loans.
"Purchase Amount" means, as of the close of business on the last day of a
Collection Period, an amount equal to the Loan Value of the applicable Loan, as
of the first day of the immediately following Collection Period (or, with
respect to any applicable Loan that is a Liquidated Loan or Defaulted Loan, as
of the day immediately prior to such Loan becoming a Liquidated Loan or
Defaulted Loan less any Liquidation Proceeds actually received by the Issuer)
plus interest accrued and unpaid thereon as of such last day at a rate per annum
equal to the APR for such Loan.
"Purchase and Sale Agreement" means that certain Loan Purchase and Sale
Agreement, dated as of November 16, 2004 by the Transferor and the Issuer, as
the same may be amended from time to time.
"Purchased Loan" means a Loan repurchased as of the close of business on
the last day of a Collection Period by a Seller pursuant to Section 6.2 of the
Sale Agreement or repurchased as of such time by the Transferor pursuant to
Section 7.2 of the Purchase and Sale Agreement.
"Rating Agency" means each of Fitch, Moody's and S&P. If any of such
organizations or its successor is no longer in existence, the Issuer shall
designate a nationally recognized statistical rating organization or other
comparable Person as a substitute Rating Agency, notice of which designation
shall be given to the Indenture Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action, that (i) each
Rating Agency (other than Moody's) shall have been given prior notice thereof
and that each of the Rating Agencies (other than Moody's) shall have notified
the Issuer and the Indenture Trustee in writing that such action will not result
in a reduction or withdrawal of the then current rating of any Class of the
Notes and (ii) Moody's shall have been given at least 10 Business Days' prior
notice thereof and shall have not notified the Issuer and the Indenture Trustee
that such action will result in a reduction or withdrawal of the then current
rating of any Class of the Notes.
"Record Date" means, with respect to a Payment Date or Redemption Date,
the close of business on the Business Day preceding such Payment Date or
Redemption Date, or, if Definitive Notes are issued, the close of business on
the last day of the calendar month preceding the month of such Payment Date,
whether or not such day is a Business Day, or if Definitive Notes were not
outstanding on such date, the date of issuance of the Definitive Notes.
"Records" means all notes, leases, security agreements and other
documents, books, records and other information (including computer programs,
tapes, disks, data processing
Annex A to
Servicing Agreement
-6-
software and related property and rights) prepared and maintained by any Seller,
the Servicer, any Sub-Servicer or the Issuer with respect to the Loan and the
Obligors thereunder.
"Recoveries" means, with respect to any Liquidated Loan, monies collected
in respect thereof, from whatever source (other than from the sale or other
disposition of the Equipment), after such Loan became a Liquidated Loan.
"Redemption Date" is defined in the Indenture.
"Related Documents" means the Sale Agreement, the Purchase and Sale
Agreement, the Servicing Agreement, the Indenture, the Issuer Limited Liability
Agreement, the CEF Limited Liability Company Agreement, the Administration
Agreement, the Note Depository Agreement, the Swap Agreement and all other
agreements, instruments, and documents and including all other pledges, powers
of attorney, consents, assignments, contracts, notices, and all other written
matter whether heretofore, now or hereafter executed by or on behalf of any
Person, or any employee of any Person, and delivered in connection with any of
the foregoing. Any reference in the foregoing documents to a Related Document
shall include all Appendices thereto, and all amendments, restatements,
supplements or other modifications thereto, and shall refer to such Related
Document as the same may be in effect at any and all times such reference
becomes operative.
"Reserve Account" means the account designated as such, established and
owned by the Issuer and maintained in accordance with Section 8.2 of the
Indenture.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., or any successor thereto.
"Sale Agreement" means the Loan Sale Agreement, dated November 16, 2004,
among GE Capital, GECT and the Transferor.
"Schedule of Loans" means the schedules of Loans attached as Schedule I
and Schedule II to the Sale Agreement and the schedule attached as Schedule I to
the Purchase and Sale Agreement (which schedules may be in the form of
microfiche).
"Scheduled Payment" on a Loan means that portion of the payment required
to be made by the Obligor during any Collection Period sufficient to amortize
the principal balance under (x) in the case of a Precomputed Loan, the actuarial
method or (y) in the case of a Simple Interest Loan, the simple interest method,
in each case, over the term of the Loan and to provide interest at the APR,
provided that Termination Values shall also constitute Scheduled Payments.
"Seller" means each of GE Capital and GECT, in its capacity as a seller,
their respective successors and assigns.
"Servicer" means each of GE Capital, in its capacity as Servicer under
this Agreement, or any other Person designated as a Successor Servicer.
"Servicer Default" means an event specified in Section 5.1 of the
Servicing Agreement.
Annex A to
Servicing Agreement
-7-
"Servicer Indemnified Person" is defined in Section 7.1 of the Servicing
Agreement.
"Servicer Termination Notice" is defined in Section 5.1 of the Servicing
Agreement.
"Servicer's Certificate" means an Officer's Certificate of the Servicer
delivered pursuant to Section 2.7 of the Servicing Agreement, substantially in
the form of Exhibit A thereto.
"Servicing Advance" means, the amount as of the Record Date, which the
Servicer may, but is not required to, advance pursuant to Section 2.5 of the
Servicing Agreement.
"Servicing Agreement" means the Servicing Agreement, dated as of November
16, 2004 between the Servicer and the Issuer.
"Servicing Fee" means, for any Collection Period, an amount equal to the
product of (a) the Servicing Fee Rate, (b) the average daily aggregate
outstanding principal amount of Loans as of the first day of such Collection
Period and (c) a fraction equal to (i) the number of days in such Collection
Period, divided by (ii) 360; plus all late fees, prepayment fees, assumption
fees, modification fees, and other miscellaneous fees and amounts received
during such Collection Period.
"Servicing Fee Rate" means 0.35%.
"Servicing Records" means all documents, books, Records and other
information (including computer programs, tapes, disks, data processing software
and related property and rights) prepared and maintained by the Servicer with
respect to the related Loans and the Obligors thereunder.
"Simple Interest Loan" means any Loan under which the portion of a payment
allocable to interest and the portion allocable to principal is determined by
allocating a fixed level payment between principal and interest, such that such
payment is allocated first to the accrued and unpaid interest at the Annual
Percentage Rate for such Loan on the unpaid principal balance and the remainder
of such payment is allocable to principal.
"Stock" means all shares, options, warrants, membership interests in a
limited liability company, general or limited partnership interests or other
equivalents (regardless of how designated) of or in a corporation, partnership
or equivalent entity whether voting or nonvoting, including common stock,
preferred stock or any other "equity security" (as such term is defined in Rule
3a11-1 of the General Rules and Regulations promulgated by the Securities and
Exchange Commission under the Securities Exchange Act).
"Stockholder" means, with respect to any Person, each holder of Stock of
such Person.
"Sub-Servicer" means any Person with whom the Servicer enters into a
Sub-Servicing Agreement.
Annex A to
Servicing Agreement
-8-
"Sub-Servicing Agreement" means any written contract entered into between
the Servicer and any Sub-Servicer pursuant to and in accordance with Section
2.10 relating to the servicing, administration or collection of the Loans.
"Successor Servicer" is defined in Section 6.2.
"Termination Value" means the "Termination Value" (if any) payable by
lessee pursuant to the applicable Loan.
"Transfer Date" means the Business Day preceding the twentieth day of each
calendar month.
"Transferor" means CEF Equipment Holding, L.L.C., a Delaware limited
liability company, as transferor under the Purchase and Sale Agreement.
"UCC" means, with respect to any jurisdiction, the Uniform Commercial Code
as the same may, from time to time, be enacted and in effect in such
jurisdiction.
SECTION 2. Other Interpretive Matters. All terms defined directly or by
incorporation in the Agreement shall have the defined meanings when used in any
certificate or other document delivered pursuant thereto unless otherwise
defined therein. For purposes of the Agreement (including this Annex A) and all
certificates and other documents, unless the context otherwise requires: (a)
accounting terms not otherwise defined in the Agreement, and accounting terms
partly defined in the Agreement to the extent not defined, shall have the
respective meanings given to them under GAAP; and unless otherwise provided,
references to any month, quarter or year refer to a fiscal month, quarter or
year as determined in accordance with the GE Capital fiscal calendar; (b) terms
defined in Article 9 of the UCC and not otherwise defined in such Agreement are
used as defined in that Article; (c) references to any amount as on deposit or
outstanding on any particular date means such amount at the close of business on
such day; (d) the words "hereof," "herein" and "hereunder" and words of similar
import refer to such Agreement (or the certificate or other document in which
they are used) as a whole and not to any particular provision of such Agreement
(or such certificate or document); (e) references to any Section, Schedule or
Exhibit are references to Sections, Schedules and Exhibits in or to such
Agreement (or the certificate or other document in which the reference is made),
and references to any paragraph, subsection, clause or other subdivision within
any Section or definition refer to such paragraph, subsection, clause or other
subdivision of such Section or definition; (f) the term "including" means
"including without limitation"; (g) references to any law or regulation refer to
that law or regulation as amended from time to time and include any successor
law or regulation; (h) references to any agreement refer to that agreement as
from time to time amended, restated or supplemented or as the terms of such
agreement are waived or modified in accordance with its terms; (i) references to
any Person include that Person's successors and assigns; and (j) headings are
for purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
Annex A to
Servicing Agreement
-9-
EXHIBIT 4 (f)
Execution Copy
GE Commercial Equipment Financing LLC, Series 2004-1
Issuer
and
JPMorgan Chase Bank, N.A.,
as Indenture Trustee.
INDENTURE
Dated as of November 16, 2004
$840,347,000 in aggregate principal amount of Notes, consisting of:
$203,000,000 of One-Month LIBOR - 0.04% Class A-1 Notes
$152,000,000 of One-Month LIBOR + 0.01% Class A-2 Notes
$279,000,000 of One-Month LIBOR + 0.02% Class A-3 Notes
$126,514,000 of One-Month LIBOR + 0.06% Class A-4 Notes
$54,623,000 of One-Month LIBOR + 0.20% Class B Notes
$25,210,000 of One-Month LIBOR + 0.60% Class C Notes
GE COMMERCIAL Equipment Financing LLC, Series 2004-1
Reconciliation and Tie between this Indenture
dated as of November 16, 2004 and the
TIA of 1939, as amended
PAGE
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE....................................................... 3
SECTION 1.1. Definitions......................................................................... 3
SECTION 1.2. Other Interpretive Matters.......................................................... 24
SECTION 1.3. Incorporation by Reference of TIA................................................... 24
ARTICLE II THE NOTES........................................................................................ 25
SECTION 2.1. Form................................................................................ 25
SECTION 2.2. Execution, Authentication and Delivery.............................................. 25
SECTION 2.3. Temporary Notes..................................................................... 26
SECTION 2.4. Registration; Registration of Transfer and Exchange................................. 26
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes.......................................... 27
SECTION 2.6. Persons Deemed Owner................................................................ 28
SECTION 2.7. Payment of Principal and Interest; Defaulted Interest............................... 28
SECTION 2.8. Cancellation........................................................................ 30
SECTION 2.9. Book-Entry Notes.................................................................... 30
SECTION 2.10. Notices to Clearing Agency.......................................................... 31
SECTION 2.11. Definitive Notes.................................................................... 31
SECTION 2.12. Notes owned by the Issuer or its Affiliates......................................... 32
SECTION 2.13. CUSIP Numbers....................................................................... 32
SECTION 2.14. Perfection Representations and Warranties........................................... 32
SECTION 2.15. Notes to Constitute Indebtedness.................................................... 32
SECTION 2.16. Determination of LIBOR.............................................................. 33
ARTICLE III COVENANTS........................................................................................ 34
SECTION 3.1. Payments............................................................................ 34
SECTION 3.2. Maintenance of Office or Agency..................................................... 34
SECTION 3.3. Paying Agent's Obligations.......................................................... 34
SECTION 3.4. Existence........................................................................... 34
SECTION 3.5. Protection of the Collateral; Further Assurances.................................... 34
SECTION 3.6. Opinions as to the Collateral....................................................... 35
SECTION 3.7. Performance of Obligations; Servicing of Loans...................................... 35
SECTION 3.8. Taxes............................................................................... 37
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 3.9. Annual Statement as to Compliance................................................... 37
SECTION 3.10. Negative Covenants.................................................................. 37
SECTION 3.11. Successor or Transferee............................................................. 39
SECTION 3.12. Notice of Events of Default......................................................... 40
SECTION 3.13. Further Instruments and Acts........................................................ 40
ARTICLE IV SATISFACTION AND DISCHARGE....................................................................... 40
SECTION 4.1. Satisfaction and Discharge of Indenture............................................. 40
SECTION 4.2. Application of Trust Funds.......................................................... 41
ARTICLE V REMEDIES......................................................................................... 41
SECTION 5.1. Events of Default................................................................... 41
SECTION 5.2. Remedies............................................................................ 42
SECTION 5.3. [Reserved].......................................................................... 45
SECTION 5.4. Unconditional Rights of Noteholders To Receive Principal and Interest............... 45
SECTION 5.5. Restoration of Rights and Remedies.................................................. 45
SECTION 5.6. Rights and Remedies Cumulative...................................................... 45
SECTION 5.7. Delay or Omission Not a Waiver...................................................... 45
SECTION 5.8. Control by Noteholders.............................................................. 46
SECTION 5.9. Waiver of Past Defaults............................................................. 47
SECTION 5.10. Undertaking for Costs............................................................... 47
SECTION 5.11. Waiver of Stay or Extension Laws.................................................... 47
SECTION 5.12. Action on Notes..................................................................... 48
SECTION 5.13. [Reserved].......................................................................... 48
SECTION 5.14. Sale of Collateral.................................................................. 48
ARTICLE VI THE INDENTURE TRUSTEE............................................................................ 50
SECTION 6.1. Duties of the Indenture Trustee..................................................... 50
SECTION 6.2. Rights of Indenture Trustee......................................................... 51
SECTION 6.3. Individual Rights of the Indenture Trustee.......................................... 53
SECTION 6.4. Funds Held in Trust................................................................. 53
SECTION 6.5. Notice of Defaults.................................................................. 53
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 6.6. [Reserved].......................................................................... 53
SECTION 6.7. Compensation and Indemnity.......................................................... 53
SECTION 6.8. Resignation and Removal; Appointment of Successor................................... 54
SECTION 6.9. Successor Indenture Trustee by Merger............................................... 55
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee....................................... 55
SECTION 6.11. Eligibility; Disqualification....................................................... 57
SECTION 6.12. Acceptance by Indenture Trustee..................................................... 58
SECTION 6.13. Preferential Collection of Claims Against the Issuer................................ 58
SECTION 6.14. Reports by Indenture Trustee to Noteholders......................................... 58
SECTION 6.15. Representations and Warranties...................................................... 59
SECTION 6.16. The Paying Agent.................................................................... 59
SECTION 6.17. Repayment of Amounts Held by Paying Agent........................................... 61
SECTION 6.18. Provisions of Swap Agreement........................................................ 61
ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS................................................................... 61
SECTION 7.1. Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders.............. 61
SECTION 7.2. Preservation of Information; Communications to Noteholders.......................... 62
SECTION 7.3. Reports by Issuer................................................................... 62
SECTION 7.4. De-Listing of Definitive Notes...................................................... 63
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES............................................................. 63
SECTION 8.1. Collection of Amounts Due........................................................... 63
SECTION 8.2. Trust Accounts...................................................................... 63
SECTION 8.3. Priority of Payments................................................................ 64
SECTION 8.4. Reserve Account..................................................................... 69
SECTION 8.5. Reports............................................................................. 70
SECTION 8.6. General Provisions Regarding Accounts............................................... 71
SECTION 8.7. Release of Collateral............................................................... 72
SECTION 8.8. Opinion of Counsel.................................................................. 72
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE IX SUPPLEMENTAL INDENTURES.......................................................................... 72
SECTION 9.1. Supplemental Indentures Without Consent of Noteholders and Swap Counterparty........ 72
SECTION 9.2. Supplemental Indentures With Consent of Noteholders................................. 73
SECTION 9.3. Execution of Supplemental Indentures................................................ 75
SECTION 9.4. Effect of Supplemental Indenture.................................................... 75
SECTION 9.5. Reference in Notes to Supplemental Indentures....................................... 75
SECTION 9.6. Conformity with Trust Indenture Act................................................. 75
ARTICLE X REDEMPTION OF NOTES.............................................................................. 75
SECTION 10.1. Redemption.......................................................................... 75
SECTION 10.2. Form of Redemption Notice........................................................... 76
SECTION 10.3. Notes Payable on Redemption Date.................................................... 76
ARTICLE XI MISCELLANEOUS.................................................................................... 76
SECTION 11.1. Compliance Certificates and Opinions, etc........................................... 76
SECTION 11.2. Form of Documents Delivered to Indenture Trustee.................................... 78
SECTION 11.3. Acts of Noteholders................................................................. 79
SECTION 11.4. Notices, etc., to the Indenture Trustee, Issuer and Rating Agencies................. 80
SECTION 11.5. Notices to Noteholders; Waiver...................................................... 80
SECTION 11.6. Alternate Payment and Notice Provisions............................................. 81
SECTION 11.7. Successors and Assigns.............................................................. 81
SECTION 11.8. Severability........................................................................ 81
SECTION 11.9. Benefits of Indenture............................................................... 82
SECTION 11.10. Legal Holidays...................................................................... 82
SECTION 11.11. Governing Law....................................................................... 82
SECTION 11.12. Counterparts........................................................................ 83
SECTION 11.13. Recording of Indenture.............................................................. 83
SECTION 11.14. Trust Obligation.................................................................... 83
SECTION 11.15. Communication by Noteholders with Other Noteholders................................. 84
SECTION 11.16. Inspection.......................................................................... 84
SECTION 11.17. Agents of Issuer.................................................................... 84
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 11.18. Survival of Representations and Warranties.......................................... 84
SECTION 11.19. Conflict with Trust Indenture Act................................................... 85
SECTION 11.20. Subordination....................................................................... 85
-v-
EXHIBITS
EXHIBIT A-1 Form of Class A Notes
EXHIBIT A-2 Form of Class B Notes
EXHIBIT A-3 Form of Class C Notes
EXHIBIT B Form of Section 3.9 Officers' Certificate
EXHIBIT C Form of Noteholder's Statement Pursuant to Section 8.5
SCHEDULE 1 Perfection Representations, Warranties and Covenants
-vi-
INDENTURE, dated as of November 16, 2004, between GE Commercial Equipment
Financing LLC, Series 2004-1, a Delaware limited liability company (the
"Issuer"), and JPMorgan Chase Bank, N.A., as trustee and not in its individual
capacity (the "Indenture Trustee").
The Issuer has duly authorized the issuance of $840,347,000 in aggregate
principal amount of its Notes, consisting of $203,000,000 aggregate principal
amount of One-Month LIBOR - 0.04% Class A-1 Notes (the "Class A-1 Notes"),
$152,000,000 aggregate principal amount of One-Month LIBOR + 0.01% Class A-2
Notes (the "Class A-2 Notes"), $279,000,000 aggregate principal amount of
One-Month LIBOR + 0.02% Class A-3 Notes (the "Class A-3 Notes") and $126,514,000
aggregate principal amount of One-Month LIBOR + 0.06% Class A-4 Notes (the
"Class A-4 Notes" and, together with the Class A-1 Notes, the Class A-2 Notes,
and the Class A-3 Notes, the "Class A Notes"), $54,623,000 aggregate principal
amount of One-Month LIBOR + 0.20% Class B Notes (the "Class B Notes") and
$25,210,000 aggregate principal amount of One-Month LIBOR + 0.60% Class C Notes
(the "Class C Notes", and together with the Class A Notes and the Class B Notes,
the "Notes"), and to provide therefor the Issuer has duly authorized the
execution and delivery of this Indenture. The Notes shall be entitled to
payments of interest and principal as set forth herein.
All things necessary to make the Notes, when executed by the Issuer and
authenticated and delivered hereunder, the valid obligations of the Issuer, and
to make this Indenture a valid agreement of the Issuer, in accordance with its
terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by
the holders thereof, it is mutually covenanted and agreed, for the benefit of
all Noteholders, as follows:
GRANTING CLAUSE
The Issuer, as security for the Issuer's obligations under the Notes and
this Indenture, hereby Grants to the Indenture Trustee at the Closing Date, for
the benefit of the Noteholders and the Swap Counterparty, a security interest in
all of the Issuer's right, title and interest in, to and under the following,
whether now existing or hereafter arising or acquired (collectively, the
"Collateral"):
(a) the Loans, including the Loan Files, and all obligations of the
Obligors thereunder, including the right to payment of any interest
accrued and to accrue from and after November 1, 2004 or finance charges
and other obligations of such Obligor with respect thereto due or to
become due on or after the Cutoff Date;
(b) the Related Security and Collections with respect thereto;
(c) all property now or hereafter in the possession or custody of,
or in transit to, the Issuer, the Servicer, any Sub-Servicer or the
Sellers relating to any of the foregoing;
(d) all Records with respect to any of the foregoing;
(e) the Sale Agreement;
(f) the Trust Accounts and all funds, Financial Assets, Investment
Property or other property on deposit from time to time in or credited to
the Trust Accounts, including all investments and Proceeds thereof and all
income thereon;
(g) the Purchase and Sale Agreement;
(h) the Servicing Agreement;
(i) all rights, title and interest of the Issuer in and to the Swap
Agreement;
(j) all General Intangibles relating to or arising out of any of the
property described in the foregoing clauses (a) through (i);
(k) all present and future claims, demands, causes and choses in
action in respect of any or all of the property described in the foregoing
clauses (a) through (j) and all payments on or under in respect of any or
all of the foregoing, including all proceeds of the conversion, voluntary
or involuntary, into cash or other liquid property, all cash proceeds,
Accounts, Promissory Notes, drafts, acceptances, Chattel Paper, checks,
Deposit Accounts, insurance proceeds, condemnation awards, rights to
payment of any and every kind and other forms of obligations and
receivables, instruments and other property that at any time constitute
all or part of or are included in the Proceeds of any and all of the
foregoing;
(l) all Proceeds of the foregoing clauses (a) through (k); and
(m) all other personal property of the Issuer, of whatever kind or
nature and wherever located.
Such Grant is made in trust to secure (w) the payment of principal of and
interest on, and any other amounts owing in respect of, the Class A Notes,
equally and ratably without prejudice, priority or distinction, (x) the payment
of principal of and interest on, and any other amounts owing in respect of, the
Class B Notes, equally and ratably without prejudice, priority or distinction,
(y) the payment of principal of and interest on, and any other amounts owing in
respect of, the Class C Notes, equally and ratably without prejudice, priority
or distinction, and (z) the obligations owed by the Issuer to the Swap
Counterparty under the Swap Agreement, in each case, in the priority and to the
extent set forth herein and to secure compliance with this Indenture.
The Indenture Trustee, on behalf of the Noteholders and the Swap
Counterparty, (1) acknowledges such Grant, and (2) accepts the trusts under this
Indenture in accordance with this Indenture and agrees to perform its duties
required in this Indenture to the best of its ability to the end that the
interests of the Noteholders and the Swap Counterparty may be adequately and
effectively protected.
2
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions. Except as otherwise specified or as the context
may otherwise require, the following terms have the meanings set forth below for
all purposes of this Indenture.
"Account" is defined in Section 9-102(a)(2) of the UCC.
"Act" is defined in Section 11.3 of this Indenture.
"Administration Agreement" means the Administration Agreement, dated as of
November 16, 2004 between the Administrator and the Issuer.
"Administration Fee" means the fee payable to the Administrator pursuant
to Section 3 of the Administration Agreement.
"Administrator" means General Electric Capital Corporation in its capacity
as administrator, a Delaware corporation, or any successor Administrator under
the Administration Agreement.
"Affiliate" means, with respect to any Person, (a) each Person that,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, five percent (5%) or more of the stock having
ordinary voting power in the election of directors of such Person, (b) each
Person that controls, is controlled by, or is under common control with such
Person, or (c) each of such Person's officers, directors, joint venturers and
partners. For the purposes of this definition, "control" of a Person means the
possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"Amounts Available for Distribution" means on each Payment Date all funds
received by the Issuer from whatever source after the payment of all interest,
principal and other debt payments made by the Issuer on such Payment Date and
any other obligations of the Issuer payable on such Payment Date.
"Annual Percentage Rate" or "APR" of a Loan means, the interest rate or
annual rate of finance charges stated in, or if not explicitly stated, the
implicit finance charges used by the finance company to determine periodic
payments with respect to the related Loan.
"Authorized Officer" means, with respect to any corporation, trust or
limited liability company, as appropriate, the Chairman or Vice-Chairman of the
Board, the President, any Vice President, the Secretary, the Treasurer, any
Assistant Secretary, any Assistant Treasurer, the Managing Member, and each
other officer, employee or member of such corporation, trust or limited
liability company, as appropriate, specifically or similar governing body of
such limited liability company or trust to sign agreements, instruments or other
documents on behalf of such corporation authorized in resolutions of the board
of directors of such corporation or similar governing body of such limited
liability company or trust, as appropriate.
3
"Available Amounts" means
(i) All payments made by or on behalf of the Obligors
(excluding any late fees, prepayment charges, assumption fees,
modifications and other administrative fees or similar charges
allowed by applicable law with respect to the Loans that constitute
part of the servicing fees) received during the related Collection
Period;
(ii) any Recoveries received during the related Collection
Period;
(iii) all Swap Payments Incoming and all Swap Termination
Payments received pursuant to the Swap Agreement with respect to
such Payment Date;
(iv) any proceeds from insurance policies covering the
Equipment or related Obligor received during the related Collection
Period;
(v) Liquidation Proceeds received with respect to the related
Collection Period;
(vi) the Purchase Amount of each Loan that became a Purchased
Loan during the related Collection Period (to the extent deposited
into the Collection Account);
(vii) Investment Earnings for such Payment Date;
(viii) Servicing Advances received during the related
Collection Period; and
(ix) payments made by a lessee pursuant to its obligation (if
any) to pay the Termination Value pursuant to the related Loan
received during the related Collection Period;
provided that Available Amounts shall not include all payments or proceeds
(including Liquidation Proceeds) of any Loans the Purchase Amount of which has
been included in the Available Amounts in a prior Collection Period; and
provided further, that with respect to the first Payment Date, Available Amounts
will exclude payments and proceeds of interest on the Loans from the Cut-off
Date through November 1, 2004.
"Available Reserve Account Amount" means, for any Payment Date, an amount
equal to the amount on deposit in the Reserve Account on such date (exclusive of
Investment Earnings on such date and after giving effect to any withdrawals
therefrom on the related Transfer Date but before giving effect to any deposit
to the Reserve Account to be made on such date).
"Bankruptcy Code" means the provisions of Title 11 of the United States
Code, Sections 101 et seq., as amended from time to time.
"Benefit Plan" is defined in Section 2.4(a) of this Indenture.
4
"Book-Entry Notes" means a beneficial interest in the Notes of a
particular Class, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 2.9 of this Indenture.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which banks are required or permitted to be closed in the State of New York or
the State of Connecticut.
"CEF Limited Liability Company Agreement" means the Second Amended and
Restated Limited Liability Company Agreement of CEF Equipment Holding, L.L.C.,
dated as of September 25, 2003, as the same may be amended or supplemented from
time to time.
"Certificated Security" is defined in Section 8-102(a)(4) of the UCC.
"Chattel Paper" is defined in Section 9-102(a)(11) of the UCC.
"Class" means any class of Notes; it being understood that the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes
collectively shall constitute one Class.
"Class A Monthly Principal Payable Amount" means:
(a) with respect to any Payment Date on or prior to the Payment Date
on which the Outstanding Principal Balance of the Class A-1 Notes has been
reduced to zero, the greater of;
(i) the sum of:
(x) the sum of the aggregate scheduled principal
payments on the Loans received during the related Collection
Period; plus
(y) the amount, if any, of unscheduled principal
collections in excess of the unscheduled principal collections
necessary to reduce the Outstanding Principal Balance of the
Class B Notes to the Class B Target Amount; and
(ii) the excess of:
(x) the sum of (i) the Outstanding Principal Balance of
the Class A Notes, (ii) the Outstanding Principal Balance of
the Class C Notes, and (iii) the Overcollateralization Amount
as of the time immediately after the prior Payment Date; over
(y) the Class A Target Principal Amount; and
5
(b) with respect to any Payment Date thereafter, the lesser of
(i) the excess of:
(x) the sum of (i) the Outstanding Principal Balance of
the Class A Notes, (ii) the Outstanding Principal Balance of
the Class C Notes, and (iii) the Overcollateralization Amount
as of the time immediately after the prior Payment Date; over
(y) the Class A Target Principal Amount; and
(ii) the Outstanding Principal Balance of the Class A Notes;
and
(c) on the applicable Maturity Date for each of the Class A Notes,
the Class A Monthly Principal Payable Amount will be the amount necessary
(after giving effect to the other amounts to be deposited in the Note
Distribution Account on that Payment Date and allocable to principal) to
reduce the Outstanding Principal Balance of the related Class A Notes to
zero; in each case as of the end of the immediately preceding Collection
Period.
"Class A Noteholder" means any holder of record of a Class A Note.
"Class A Notes" means the Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes and the Class A-4 Notes.
"Class A Target Percentage" means,
(a) with respect to any Payment Date on or prior to the Payment Date
on which the Outstanding Principal Balance of the Class A Notes has been
reduced to zero, the quotient of:
(i) the sum of:
(x) the aggregate Outstanding Principal Balance of the
Class A Notes immediately after the prior Payment Date;
(y) the aggregate Outstanding Principal Balance of the
Class C Notes immediately after the prior Payment Date; and
(z) the Overcollateralization Amount as of such date;
and
(ii) the sum of:
(x) the aggregate Outstanding Principal Balance of the
Notes, immediately after the prior Payment Date and
(y) the Overcollateralization Amount immediately after
the prior Payment Date;
6
(b) with respect to any Payment Date thereafter, zero.
"Class A Target Principal Amount" means, with respect to any Payment Date,
the product of (i) the Class A Target Percentage and (ii) the Pool Balance at
the beginning of the calendar month in which such Payment Date occurred.
"Class A-1 Interest Rate" means LIBOR - 0.04% per annum, computed on the
basis of the actual number of days and a year of 360 days.
"Class A-1 Maturity Date" means November 21, 2005 (or, if such day is not
a Business Day, the next succeeding Business Day thereafter).
"Class A-1 Noteholder" means any holder of record of a Class A-1 Note.
"Class A-1 Notes" means the $203,000,000 aggregate principal amount of
Notes, Class A-1, issued pursuant to this Indenture.
"Class A-2 Interest Rate" means LIBOR + 0.01% per annum, computed on the
basis of the actual number of days and a year of 360 days.
"Class A-2 Maturity Date" means January 22, 2007 (or, if such day is not a
Business Day, the next succeeding Business Day thereafter).
"Class A-2 Noteholder" means any holder of record of a Class A-2 Note.
"Class A-2 Notes" means the $152,000,000 aggregate principal amount of
Notes, Class A-2, issued pursuant to this Indenture.
"Class A-3 Interest Rate" means LIBOR + 0.02% per annum, computed on the
basis of the actual number of days and a year of 360 days.
"Class A-3 Maturity Date" means October 20, 2008 (or, if such day is not a
Business Day, the next succeeding Business Day thereafter).
"Class A-3 Noteholder" means any holder of record of a Class A-3 Note.
"Class A-3 Notes" means the $279,000,000 aggregate principal amount of
Notes, Class A-3, issued pursuant to this Indenture.
"Class A-4 Interest Rate" means LIBOR + 0.06% per annum, computed on the
basis of the actual number of days and a year of 360 days.
"Class A-4 Maturity Date" means December 21, 2015 (or, if such day is not
a Business Day, the next succeeding Business Day thereafter).
"Class A-4 Noteholder" means any holder of record of a Class A-4 Note.
"Class A-4 Notes" means the $126,514,000 aggregate principal amount of
Notes, Class A-4, issued pursuant to this Indenture.
7
"Class B Floor" means, with respect to any Payment Date, an amount equal
to
(i) 9.075% of the Pool Balance as of the Cut-off Date, plus
(ii) the Unfunded Loss Amount, if any, for such Payment Date, minus
(iii) the Outstanding Principal Balance of the Class C Notes, minus
(iv) the Available Reserve Account Amount;
provided, however, that in no event will the Class B Floor be greater than the
Outstanding Principal Amount of the Class B Notes immediately prior to such
Payment Date nor less than zero.
"Class B Interest Rate" means LIBOR + 0.20% per annum, computed on the
basis of the actual number of days and a year of 360 days.
"Class B Maturity Date" means December 21, 2015 (or, if such day is not a
Business Day, the next succeeding Business Day thereafter).
"Class B Monthly Principal Payable Amount" means:
(a) with respect to any Payment Date on or prior to the Payment
Date on which the Outstanding Principal Balance of the Class
A-1 Notes has been reduced to zero, the least of:
(i) the excess, if any, of:
(A) the Outstanding Principal Balance of the Class B
Notes; over
(B) the greater of:
(1) the Class B Target Principal Amount; and
(2) the Class B Floor, if any;
(ii) the Outstanding Principal Balance of the Class B Notes;
and
(iii) the amount, if any, of unscheduled principal collections
on the Loans received during the related Collection
Period;
(b) with respect to any Payment Date thereafter, the lesser of:
(i) the excess, if any, of:
(A) the sum of:
(1) the Outstanding Principal Balance of the Class
B Notes; and
8
(2) at any time after the Outstanding Principal
Balance of the Class A Notes has been
reduced to zero, the sum of (a) the
Overcollateralization Amount and (b) the
Outstanding Principal Balance of the Class C
Notes, in each case as of the time
immediately after the prior Payment Date;
over
(B) the greater of:
(1) the Class B Target Principal Amount; and
(2) the Class B Floor, if any; and
(ii) the Outstanding Principal Balance of the Class B Notes;
and
(c) on the Maturity Date for the Class B Notes, the Class B
Monthly Principal Payable Amount will equal the amount
necessary (after giving effect to the other amounts to be
deposited in the Note Distribution Account on that Payment
Date and allocable to principal) to reduce the Outstanding
Principal Balance of the Class B Notes to zero.
"Class B Noteholder" means any holder of record of a Class B Note.
"Class B Notes" means the $54,623,000 aggregate principal amount of Notes,
Class B, issued pursuant to the Indenture.
"Class B Target Percentage" means, with respect to any Payment Date, the
quotient of
(a) the sum of
(i) the aggregate Outstanding Principal Balance of the Class B
Notes immediately after the prior Payment Date;
(ii) after the Outstanding Principal Balance of the Class A
Notes have been reduced to zero, the aggregate Outstanding Principal
Balance of the Class C Notes immediately after the prior Payment
Date; and
(iii) after the Outstanding Principal Balance of the Class A
Notes have been reduced to zero, the Overcollateralization Amount as
of such date; and
(b) the sum of:
(i) the aggregate Outstanding Principal Balance of the Notes
immediately after the prior Payment Date; and
(ii) the Overcollateralization Amount, immediately after the
prior Payment Date.
9
"Class B Target Principal Amount" means, with respect to any Payment Date,
the product of (i) the Class B Target Percentage and (ii) the Pool Balance at
the beginning of the calendar month in which such Payment Date occurs.
"Class C Interest Rate" means LIBOR + 0.60% per annum, computed on the
basis of the actual number of days and a year of 360 days.
"Class C Maturity Date" means December 21, 2015 (or, if such day is not a
Business Day, the next succeeding Business Day thereafter).
"Class C Monthly Principal Payable Amount" means:
(1) with respect to any Payment Date prior to the Payment Date on which
the aggregate Outstanding Principal Balance of the Class A and Class B Notes has
been reduced to zero, zero;
(2) with respect to the Payment Date on which the aggregate Outstanding
Principal Balance of the Class A and Class B Notes is reduced to zero, the
lesser of (x) the sum of (i) (A) the aggregate Loan Values of the Loans at the
opening of business on the first day of the related Collection Period minus (B)
the aggregate Loan Values of the Loans at the close of business on the last day
of the related Collection Period minus (C) the amount distributed to the Class A
and Class B Notes on such Payment Date plus (ii) any Class C Principal
Carryforward Amount and (y) the Outstanding Principal Balance of the Class C
Notes; and
(3) with respect to any Payment Date after which the aggregate Outstanding
Principal Balance of the Class A and Class B Notes has been reduced to zero, the
lesser of (x) the sum of (i) (A) the aggregate Loan Values of the Loans at the
opening of business on the first day of the related Collection Period minus (B)
the aggregate Loan Values of the Loans at the close of business on the last day
of the related Collection Period, plus (ii) any Class C Principal Carryforward
Amount and (y) the Outstanding Principal Balance of the Class C Notes.
"Class C Noteholder" means any holder of record of a Class C Note.
"Class C Notes" means the $25,210,000 aggregate principal amount of Notes,
Class C, issued pursuant to this Indenture.
"Class C Principal Carryforward Amount" means, with respect to any Payment
Date, the amount of the Class C Monthly Principal Payable Amount payable on the
immediately preceding Payment Date that was not paid.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act that has been designated
as the "Clearing Agency" for purposes of this Indenture.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means November 16, 2004.
10
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and Treasury Regulations promulgated thereunder.
"Collateral" is defined in the Granting Clause of this Indenture.
"Collection Account" means the account designated as such, established and
owned by the Issuer and maintained in accordance with Section 8.2 of this
Indenture.
"Collection Period" means, with respect to any Payment Date, the calendar
month preceding the month in which the Payment Date occurs (or, if for the first
Payment Date, the period from and including the day after the Cutoff Date to and
including the last day of the calendar month preceding the calendar month in
which the first Payment Date occurs).
"Collections" means, with respect to any Payment Date all payments made by
or on behalf of the Obligors received during the related Collection Period, any
Recoveries received during the related Collection Period, any proceeds from
insurance policies covering the Equipment or related Obligor received during the
related Collection Period, Liquidation Proceeds received during the related
Collection Period, and payments made by a lessee pursuant to its obligation (if
any) to pay the Termination Value pursuant to the related Loan received during
the related Collection Period; provided that "Collections" for the first
Collection Period shall exclude interest accrued before November 1, 2004.
"Commission" means the Securities and Exchange Commission.
"Corporate Trust Office" means, with respect to the Indenture Trustee, the
principal office of the Indenture Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date of this
Indenture is located at 4 New York Plaza, 6th Floor, New York, NY 10004,
Attention: Institutional Trust Services Structured Finance (facsimile no. (212)
623-5932); or at such other address as the Indenture Trustee may designate from
time to time by notice to the Noteholders and the Issuer, or the principal
corporate trust office of any successor Indenture Trustee (the address of which
the successor Indenture Trustee will notify the Noteholders and the Sellers).
"Credit and Collection Policies" or "Credit and Collection Policy" means
the policies, practices and procedures adopted by the Issuer for providing
equipment loans secured by transportation equipment, industrial equipment,
furniture and fixtures, construction equipment, medical and dental equipment,
technology and telecommunications equipment, maritime assets or other equipment,
including the policies and procedures for determining the creditworthiness of
Obligors and the extension of credit to Obligors, or relating to the maintenance
of such types of loans and collections on such types of loans.
"Custody and Control Agreement" means an agreement that provides the
Indenture Trustee with a perfected security interest with respect to the
collateral described therein.
"Cut-off Date" means, with respect to Loans secured by medical and dental
Equipment, September 24, 2004, and with respect to all other Loans, September
25, 2004.
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"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Defaulted Loan" means a Loan with respect to which (i) the Servicer on
behalf of the Issuer has repossessed the Equipment securing such Loan and which
is not a Liquidated Loan or (ii) any portion of the Loan Value is deemed
uncollectible in accordance with the Credit and Collection Policy.
"Definitive Notes" is defined in Section 2.9 of this Indenture.
"Delinquent Loan" is defined in Annex A to the Servicing Agreement.
"Deposit Account" is defined in Section 9-102(a)(29) of the UCC.
"Determination Date" means, with respect to any Transfer Date, the second
Business Day prior to such Transfer Date.
"Eligible Deposit Account" means: (a) a segregated deposit account
maintained with a depository institution or trust company whose short-term
unsecured debt obligations are rated at least A-1+ by S&P and P-1 by Moody's,
(b) a segregated account which is either (i) maintained in the corporate trust
department of the Indenture Trustee or (ii) maintained with a depository
institution or trust company whose long term unsecured debt obligations are
rated at least BBB- by S&P and Baa3 by Moody's, or (c) a segregated trust
account or similar account maintained with a federally or state chartered
depository institution whose long term unsecured debt obligations are rated at
least BBB- by S&P and Baa3 by Moody's subject to regulations regarding fiduciary
funds on deposit substantially similar to 12 C.F.R. Section 9.10(b) in effect on
the Closing Date.
"Equipment" means any transportation equipment, industrial equipment,
furniture and fixtures, construction equipment, medical and dental equipment,
technology and telecommunications equipment, maritime assets or other equipment,
together with all accessions thereto securing an Obligor's indebtedness under
the respective Loan.
"Equipment Loan" means middle market equipment loans that consist of loans
and finance leases secured by new or used transportation equipment, industrial
equipment, furniture and fixtures, construction equipment, medical and dental
equipment, technology and telecommunications equipment, maritime assets or other
equipment made to obligors in the United States of America and managed by the
Commercial Equipment Financing and Healthcare Financial Services divisions of GE
Capital.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" is defined in Section 5.1 of this Indenture.
"Excess Spread Amount" means, with respect to any Payment Date, the
portion, if any, of Available Amounts for such Payment Date remaining after
giving effect to the payments made pursuant to clauses (i) through (x) under
Section 8.3(a) of the Indenture with respect to any Payment Date prior to an
Event of Default.
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"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
Executive Vice President, any Vice President, the Secretary or the Treasurer of
such corporation; and with respect to any partnership, any general partner
thereof.
"Federal Book-Entry Regulations" means (a) the Federal regulations listed
on Appendix A to Operating Circular No. 7 issued by the Federal Reserve Banks
and (b) the Federal regulations published at 25 C.F.R. Part 350.
"Final Maturity Date" means the Payment Date in December 2015.
"Financial Asset" has the meaning assigned thereto in Section 8-102 of
Article 8 of the UCC.
"Fitch" means Fitch, Inc. and its successors and assigns.
"GE Capital" means General Electric Capital Corporation, a Delaware
corporation.
"GECS" means General Electric Capital Services, Inc. or any successors or
assigns thereto.
"GECT" means General Electric Credit Corporation of Tennessee, a Tennessee
corporation.
"General Intangibles" is defined in Section 9-102(a)(42) of the UCC.
"Grant" means to create and grant a Lien pursuant to this Indenture, and
other forms of the verb "to Grant" shall have correlative meanings. A Grant with
respect to the Collateral or any other agreement or instrument shall include a
grant of a Lien upon all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the right, upon the
occurrence of a Default and declaration thereof by the party to whom such Grant
is made, to claim for, collect, receive and give receipt for principal and
interest payments in respect of the Collateral and all other amounts payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Indenture" means this Indenture, dated as of November 16, 2004, between
the Issuer and the Indenture Trustee, as the same may be amended and
supplemented from time to time.
"Indenture Trustee" means JPMorgan Chase Bank, N.A., not in its individual
capacity but solely as Indenture Trustee under this Indenture, or any successor
Indenture Trustee under this Indenture.
"Independent" means, with respect to any specified Person, any such Person
who (i) is in fact independent of any Seller, the Servicer, the Issuer, or any
Affiliate of any thereof, (ii) does not have any direct financial interest, or
any material indirect financial interest in any Seller, the
13
Servicer, the Issuer, or any Affiliate of any thereof and (iii) is not connected
with any Seller, the Servicer, the Issuer, or any Affiliate of any thereof, as
an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions; provided, however, that a Person shall not
fail to be Independent of any Seller, the Servicer, the Issuer, or any Affiliate
of any thereof merely because such Person is the beneficial owner of 1% or less
of any class of securities issued by the Issuer, the Servicer, or any Affiliate
thereof, as the case may be.
"Independent Certificate" means a certificate or opinion to be delivered
to the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.1 of this Indenture,
made by an Independent appraiser or other expert appointed by an Issuer Order
and approved by the Indenture Trustee in the exercise of reasonable care, and
such opinion or certificate shall state that the signer has read the definition
of "Independent" in this Indenture and that the signer is Independent within the
meaning thereof.
"Insolvency Event" means, with respect to a specified Person: (a) the
entry by a court having jurisdiction in the premises of (i) a decree or order
for relief in respect of such Person in an involuntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization, or other
similar law or (ii) a decree or order adjudging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment, or composition of or in respect of such Person under
any applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator, or other similar official of such
Person or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a period of
60 consecutive days; or (b) the commencement by such Person of a voluntary case
or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization, or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of such Person in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization, or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable federal
or state law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator, or similar official of such Person or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or such Person's failure to pay its debts generally as
they become due, or the taking of corporate action by such Person in furtherance
of any such action.
"Instruments" has the meaning assigned thereto in Section 9-102 of Article
9 of the UCC.
"Interest Accrual Period" means, with respect to any Payment Date (the
"current Payment Date") and any Class of Notes, the period from and including
the preceding Payment Date (or, in the case of the initial Payment Date from and
including the Closing Date) to but excluding the current Payment Date.
"Interest Rate" means (i) as to the Class A-1 Notes, the Class A-1
Interest Rate, (ii) as to the Class A-2 Notes, the Class A-2 Interest Rate,
(iii) as to the Class A-3 Notes, the Class A-3
14
Interest Rate, (iv) as to the Class A-4 Notes, the Class A-4 Interest Rate, (v)
as to the Class B Notes, the Class B Interest Rate, and (vi) as to the Class C
Notes, the Class C Interest Rate.
"Investment Company Act" means the provisions of the Investment Company
Act of 1940, 15 U.S.C Sections 80a et seq., as amended from time to time, and
any regulations promulgated thereunder.
"Investment Earnings" means, with respect to any Payment Date, the
interest and other investment earnings (net of losses and investment expenses)
on amounts on deposit in the Trust Accounts to be included as part of Available
Amounts pursuant to Section 8.6(a).
"Investment Property" is defined in Section 9-102(a)(49) of the UCC.
"Issuer" means GE Commercial Equipment Financing LLC, Series 2004-1, a
Delaware limited liability company, until a successor replaces it and,
thereafter, means the successor and, for purposes of any provision contained in
this Indenture and required by the TIA, each other obligor on the Notes.
"Issuer Limited Liability Company Agreement" means the Limited Liability
Company Agreement of the Issuer, dated as of November 16, 2004, as the same may
be amended or supplemented from time to time.
"Issuer Order" and "Issuer Request" means a written order or request,
respectively, signed in the name of the Issuer by any one of its Authorized
Officers and delivered to the Indenture Trustee.
"LIBOR" is defined in Section 2.16.
"LIBOR Business Day" means any day other than (i) a Saturday or a Sunday
or (ii) a day on which banking institutions in the city of London, England are
required to or authorized by law to be closed.
"LIBOR Rate Adjustment Date" is defined in Section 2.16 of this Indenture.
"Lien" means a security interest (as such term is defined in Section 1-201
of Article 1 of the UCC), lien, charge, pledge, equity or encumbrance of any
kind, other than tax liens, mechanics' liens and any liens that attach to the
related Loan by operation of law as a result of any act or omission by the
related Obligor.
"Liquidated Loan" means any Loan (i) liquidated through the sale or other
disposition of all or a portion of the related Equipment, (ii) that has been
charged off in its entirety in accordance with the Credit and Collection Policy
without realizing upon the Equipment or (iii) the due date of any Scheduled
Payment of which has been extended, at any time after the Cut-off Date, for an
aggregate period of 12 or more calendar months
"Liquidation Proceeds" means, with respect to any Liquidated Loan, the
amounts collected in respect thereof from whatever source (including the
proceeds of insurance policies with respect to the related Equipment or Obligor)
during the Collection Period in which it
15
became a Liquidated Loan, net of the sum of any amounts expended in connection
with such liquidation and any amounts required by law to be remitted to the
Obligor on such Liquidated Loan or any creditor of such Obligor to the extent
required by applicable law or agreement.
"Loan" means any agreement (including any invoice) pursuant to, or under
which, an Obligor shall be obligated to make payments with respect to any
Equipment Loan owned by the Issuer.
"Loan Files" means the documents specified in Section 2.1 of the Sale
Agreement.
"Loan Value" is defined in the Purchase and Sale Agreement.
"Managing Member" means CEF Equipment Holding, L.L.C., a Delaware limited
liability company, or any successor Managing Member under the Issuer Limited
Liability Company Agreement.
"Maturity Date" means (i) as to the Class A-1 Notes, the Class A-1
Maturity Date, (ii) as to the Class A-2 Notes, the Class A-2 Maturity Date,
(iii) as to the Class A-3 Notes, the Class A-3 Maturity Date, (iv) as to the
Class A-4 Notes, the Class A-4 Maturity Date, (v) as to the Class B Notes, the
Class B Maturity Date, and (vi) as to the Class C Notes, the Class C Maturity
Date.
"Monthly Interest Amount Payable" means, with respect to any Payment Date
(the "current Payment Date") and any Class of Notes, an amount equal to the sum
of (a) the aggregate amount of interest accrued on that Class of Notes at the
applicable Interest Rate from and including the preceding Payment Date (or, in
the case of the initial Payment Date from and including the Closing Date) to but
excluding the current Payment Date plus (b) the Monthly Interest Shortfall for
that Class of Notes and the current Payment Date.
"Monthly Interest Shortfall" means, with respect to any Payment Date (the
"current Payment Date") and any Class of Notes, the excess of the Monthly
Interest Amount Payable for the preceding Payment Date over the amount in
respect of interest on that Class of Notes that was actually paid to the
Noteholder for that Class of Notes on such preceding Payment Date, plus interest
on such excess, to the extent permitted by law, at a rate per annum equal to the
Interest Rate on that Class of Notes, from such preceding Payment Date to but
excluding the current Payment Date.
"Moody's" means Moody's Investors Service, Inc. or any successor thereto.
"Note Balance" means the aggregate Outstanding Principal Balance of the
Notes from time to time.
"Note Depository Agreement" means the agreement among the Issuer, the
Indenture Trustee and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date.
"Note Distribution Account" means the account designated as such,
established and owned by the Issuer and maintained in accordance with Section
8.2(a) of this Indenture.
16
"Note Owner" means, with respect to a Book-Entry Note, the Person who is
the owner of such Book-Entry Note, as reflected on the books of the Clearing
Agency, or on the books of a Person maintaining an account with the Clearing
Agency (directly as a Clearing Agency Participant or as an indirect participant,
in each case in accordance with the rules of the Clearing Agency).
"Note Pool Factor" means, as of the close of business on any Payment Date
with respect to any Class of Notes, the Outstanding Principal Balance of that
Class of Notes divided by the original Outstanding Principal Balance of that
Class of Notes (carried out to the seventh decimal place). The Note Pool Factor
for each Class will be 1.0000000 as of the Closing Date, and, thereafter, will
decline to reflect reductions in the Outstanding Principal Balance of the Notes.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 2.4 of this Indenture.
"Noteholder" means the person in whose name a Class A, Class B or Class C
Note is registered on the Note Register.
"Notes" means the Class A Notes, the Class B Notes and the Class C Notes.
"Obligor" means, as to each Loan, any Person who owes payments under the
Loan.
"Officers' Certificate" means, as to any Person, a certificate signed by
an Authorized Officer of such Person.
"Opinion of Counsel" means a written opinion of counsel (who may, except
as otherwise expressly provided in this Indenture, be an employee of or counsel
to the Issuer or an Affiliate of the Issuer), which counsel and opinion shall be
acceptable to the Indenture Trustee, or the Rating Agencies, as applicable.
"Other Assets" is defined in Section 11.20 of this Indenture.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore canceled by the Note Registrar or delivered to
the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which funds in the
necessary amount have been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Noteholders (provided,
however, that if such Notes are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture); and
(iii) Notes in exchange for or in lieu of other Notes that have been
authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes are
held by a bona fide purchaser; provided, that in determining whether the
Noteholders of the requisite Outstanding Principal Balance of the Notes
have given any request, demand, authorization, direction, notice, consent
or
17
waiver hereunder or under any Related Document, Notes owned by the Issuer
or any Affiliate thereof shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Indenture Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that a
Responsible Officer of the Indenture Trustee actually knows to be so owned
shall be so disregarded. Notes so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Indenture Trustee the pledgee's right so to act with
respect to such Notes and that the pledgee is not the Issuer or any
Affiliate thereof.
"Outstanding Principal Balance" means the aggregate principal amount of
all Notes, or Class of Notes, as applicable, Outstanding at the date of
determination.
"Overcollateralization Amount" means, with respect to the time immediately
following any Payment Date, the excess, if any, of (i) the Pool Balance at the
beginning of the calendar month in which such Payment Date occurs over (ii) the
aggregate Outstanding Principal Balance of the Class A Notes, Class B Notes and
Class C Notes at such time.
"Paying Agent" means with respect to the Notes, initially the Indenture
Trustee or any other Person that meets the eligibility standards for the
Indenture Trustee specified in Section 6.11 of this Indenture and is authorized
by the Issuer to make the distributions from the Note Distribution Account,
including payment of principal of or interest on the Notes on behalf of the
Issuer.
"Payment Date" means, with respect to each Collection Period, the 20th day
of the calendar month following the end of that Collection Period, or, if such
day is not a Business Day, the next Business Day, commencing on December 20,
2004.
"Permitted Investments" means one or more of the following:
(a) obligations of, or guaranteed as to the full and timely payment
of principal and interest by, the United States or obligations of any
agency or instrumentality thereof, when such obligations are backed by the
full faith and credit of the United States;
(b) repurchase agreements on obligations specified in clause (a);
provided, that the short-term debt obligations of the party agreeing to
repurchase are rated at least A-1+ by S&P and P-1 by Moody's;
(c) federal funds, certificates of deposit, time deposits and
bankers' acceptances (which shall each have an original maturity of not
more than 90 days or, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days) of any United
States depository institution or trust company incorporated under the laws
of the United States or any State thereof or of any United States branch
or agency of a foreign commercial bank; provided that the short-term debt
obligations of such depository institution or trust company are rated at
least A-1+ by S&P and P-1 by Moody's;
18
(d) commercial paper (having original maturities of not more than 30
days) which on the date of acquisition are rated at least A-1+ by S&P and
P-1 by Moody's;
(e) securities of money market funds rated at least A-1+ by S&P and
P-1 by Moody's; and
(f) any other investment permitted by each of the Rating Agencies as
set forth in writing delivered to the Indenture Trustee; provided, that
investments described in clauses (e) and (f) shall be made only so long as
making such investments will not require the Issuer to register as an
investment company under the Investment Company Act of 1940, as amended.
"Person" means any individual, sole proprietorship, partnership, joint
venture, unincorporated organization, trust, association, corporation (including
a business trust), limited liability company, institution, public benefit
corporation, joint stock company, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Pool Balance" means, with respect to the beginning of any calendar month,
the sum of the aggregate Loan Values of the Loans at the opening of business on
the first day of such calendar month.
"Precomputed Loan" means any Loan under which the portion of a payment
allocable to earned interest (which may be referred to in the related Loan as an
add-on finance charge) and the portion allocable to principal are determined
according to the sum of periodic balances, the sum of monthly payments or any
equivalent method or are monthly actuarial loans.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.5 of this Indenture in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Proceeding" means any suit in equity, action at law or other judicial or
administrative proceeding.
"Promissory Note" is defined in Section 9-102(a)(65) of the UCC.
"Purchase Amount" means, as of the close of business on the last day of a
Collection Period, an amount equal to the Loan Value of the applicable Loan, as
of the first day of the immediately following Collection Period (or, with
respect to any applicable Loan that is a Liquidated Loan or Defaulted Loan, as
of the day immediately prior to such Loan becoming a Liquidated Loan or
Defaulted Loan less any Liquidation Proceeds actually received by the Issuer)
plus interest accrued and unpaid thereon as of such last day at a rate per annum
equal to the APR for such Loan.
"Purchase and Sale Agreement" means the Purchase and Sale Agreement, dated
as of November 16, 2004, between the Purchaser and the Issuer, as the same may
be amended or supplemented from time to time.
19
"Purchased Loan" means a Loan repurchased as of the close of business on
the last day of a Collection Period by a Seller pursuant to the Sale Agreement
and repurchased as of such time by CEF Equipment Holding, L.L.C. pursuant to the
Purchase and Sale Agreement.
"Purchaser" means CEF Equipment Holding, L.L.C., a Delaware limited
liability company, in its capacity as the purchaser, and its successors and
assigns.
"Rating Agency" means each of Fitch, Moody's and S&P. If any of such
organizations or its successor is no longer in existence, the Issuer shall
designate a nationally recognized statistical rating organization or other
comparable Person as a substitute Rating Agency, notice of which designation
shall be given to the Indenture Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action, that (i) each
Rating Agency (other than Moody's) shall have been given prior notice thereof
and that each of the Rating Agencies (other than Moody's) shall have notified
the Issuer and the Indenture Trustee in writing that such action will not result
in a reduction or withdrawal of the then current rating of any Class of the
Notes and (ii) Moody's shall have been given at least 10 Business Days' prior
notice thereof and shall have not notified the Issuer and the Indenture Trustee
that such action will result in a reduction or withdrawal of the then current
rating of any Class of the Notes.
"Reallocated Principal" means, with respect to any Payment Date, an amount
equal to the excess of:
(a) the sum of the Class A Monthly Principal Payable Amount, plus
the Class B Monthly Principal Payable Amount, (without giving effect to
the Class B Floor) over
(b) the sum of the Class A Monthly Principal Payable Amount and the
Class B Monthly Principal Payable Amount.
"Record Date" means, with respect to a Payment Date or Redemption Date,
the close of business on the Business Day preceding such Payment Date or
Redemption Date, or, if Definitive Notes are issued, the close of business on
the last day of the calendar month preceding the month of such Payment Date,
whether or not such day is a Business Day, or if Definitive Notes were not
outstanding on such date, the date of issuance of the Definitive Notes.
"Records" means all documents, books, records and other information
(including computer programs, tapes, disks, data processing software and related
property and rights) prepared and maintained by the Issuer with respect to the
Loans and the Obligors thereunder.
"Recoveries" means, with respect to any Liquidated Loan, monies collected
in respect thereof, from whatever source (other than from the sale or other
disposition of the Equipment), after such Loan became a Liquidated Loan.
"Redemption Date" means the Payment Date specified by the Issuer pursuant
to Section 10.1 of this Indenture, as applicable.
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"Redemption Price" means the unpaid principal amount of the Notes
redeemed, plus accrued and unpaid interest thereon at the applicable interest
rate to but excluding the Redemption Date.
"Related Documents" means the Sale Agreement, the Purchase and Sale
Agreement, the Servicing Agreement, the Indenture, the Issuer Limited Liability
Company Agreement, the CEF Limited Liability Company Agreement, the
Administration Agreement, the Note Depository Agreement, the Swap Agreement and
all other agreements, instruments, and documents and including all other
pledges, powers of attorney, consents, assignments, contracts, notices, and all
other written matter whether heretofore, now or hereafter executed by or on
behalf of any Person, or any employee of any Person, and delivered in connection
with any of the foregoing. Any reference in the foregoing documents to a Related
Document shall include all Annexes, Exhibits and Schedules thereto, and all
amendments, restatements, supplements or other modifications thereto, and shall
refer to such Related Document as the same may be in effect at any and all times
such reference becomes operative.
"Related Security" means with respect to any Loan: (a) any interest
(including security interests), if any, in the related Equipment; (b) all
guarantees, insurance or other agreements or arrangements of any kind from time
to time supporting or securing payment of such Loan (including rights (if any)
to receive proceeds on insurance policies covering the Obligors); and (c) all
Records relating to such Loan.
Required Reserve Account Amount" means 2.50% of the initial aggregate Loan
Value.
"Reserve Account" means the account designated as such, established and
owned by the Issuer and maintained in accordance with Section 8.2.
"Reserve Account Deficiency" means the excess, if any, of the Required
Reserve Account Amount over the Available Reserve Account Amount.
"Responsible Officer" means, with respect to the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee, including
any Vice President, Assistant Vice President, Secretary or Assistant Secretary,
or any other officer of the Indenture Trustee customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., or any successor thereto.
"Sale Agreement" means the Sale Agreement, dated as of November 16, 2004,
among GE Capital, GECT and Purchaser, as the same may be amended or supplemented
from time to time.
"Scheduled Payment" on a Loan means that portion of the payment required
to be made by the Obligor during any Collection Period sufficient to amortize
the loan balance under (x) in the case of a Precomputed Loan, the actuarial
method or (y) in the case of a Simple Interest Loan, the simple interest method,
in each case, over the term of the Loan and to provide interest at the APR;
provided that Termination Values shall also constitute Scheduled Payments.
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"Securities Account" has the meaning assigned thereto in Section 8-501(a)
of Article 8 of the UCC.
"Securities Exchange Act" means the provisions of the Securities Exchange
Act of 1934 15 U.S.C. Sections 78a et seq., as amended, and any regulations
promulgated thereunder.
"Securities Intermediary" is defined in Section 8-102 of Article 8 of the
UCC.
"Seller" means each of GE Capital or GECT, in its capacity as the seller,
its successors and assigns.
"Servicer" means GE Capital, as the Servicer under the Servicing
Agreement, as the case may be, or any other Person designated as a Successor
Servicer under such agreement.
"Servicer Default" means an event specified in Section 5.1 of the
Servicing Agreement.
"Servicing Advance" is defined in Annex A to the Servicing Agreement.
"Servicing Agreement" means the Servicing Agreement, dated as of November
16, 2004, between the Issuer and the Servicer, as the same may be amended or
supplemented from time to time.
"Servicing Fee" is defined in Annex A to the Servicing Agreement.
"Simple Interest Loan" means any Loan under which the portion of a payment
allocable to interest and the portion allocable to principal is determined by
allocating a fixed level payment between principal and interest, such that such
payment is allocated first to the accrued and unpaid interest at the Annual
Percentage Rate for such Loan on the unpaid principal balance and the remainder
of such payment is allocable to principal.
"State" means any one of the 50 states of the United States of America or
the District of Columbia.
"Successor Servicer" is defined in Section 6.2 of the Servicing Agreement.
"Swap Agreement" means the 2002 ISDA Master Agreement dated as of November
16, 2004, including all schedules and confirmations thereto between the Issuer
and GECS, in its capacity as Swap Counterparty, as the same may be amended,
supplemented, renewed, extended or replaced from time to time.
"Swap Counterparty" means GECS, solely in its capacity as a swap
counterparty, and any successors or assigns thereto.
"Swap Event of Default" means a "Swap Event of Default" or similar term as
provided in the Swap Agreement.
"Swap Payments Incoming" means on any Payment Date the net amount, if any,
then payable by the Swap Counterparty to the Issuer, excluding any Swap
Termination Payments.
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"Swap Payments Outgoing" means on any Payment Date the net amount, if any,
then payable by the Issuer to the Swap Counterparty, excluding any applicable
Swap Termination Payments.
"Swap Termination Event" means a "Swap Termination Event" or similar term
as provided in the Swap Agreement.
"Swap Termination Payment" means any termination payment payable by the
Issuer to the Swap Counterparty or by the Swap Counterparty to the Issuer under
the Swap Agreement.
"Termination Value" means the "Termination Value" (if any) payable by a
lessee pursuant to the applicable Loan.
"TIA" or the "Trust Indenture Act" means the Trust Indenture Act of 1939,
as in force on the date of this Indenture unless otherwise specifically
provided.
"Total Principal Payment Amount" means, with respect to any Payment Date,
the sum of the Class A Monthly Principal Payable Amount plus the Class B Monthly
Principal Payable Amount (without giving effect to the Class B Floor) plus the
Class C Monthly Principal Payable Amount for such Payment Date.
"Transfer Date" means the Business Day preceding the twentieth day of each
calendar month.
"Treasury Regulations" means regulations, including proposed or temporary
regulations, promulgated under the Code. References to specific provisions of
proposed or temporary regulations shall include analogous provisions of final
Treasury Regulations or other successor Treasury Regulations.
"Trust Account Property" means the Trust Accounts, all amounts, Financial
Assets, Investment Property and other investments or other property held from
time to time in or credited to any Trust Account and all Proceeds of the
foregoing.
"Trust Accounts" has the meaning assigned thereto in Section 8.2(a) of
this Indenture.
"UCC" means, unless the context otherwise requires, the Uniform Commercial
Code as in effect in the relevant jurisdiction, as amended from time to time.
"Unfunded Loss Amount" means, with respect to any Payment Date, the
excess, if any, of
(a) the excess, if any, of
(i) the Note Balance (prior to giving effect to the payment of
principal on the Notes on such Payment Date) over
(ii) the lesser of
(1) the Total Principal Payment Amount, and
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(2) (A) Available Amounts remaining after the payment of
amounts owing to the Servicer, the Indenture Trustee, the
Administrator and the Swap Counterparty and the payment of all
interest due on the Notes on such Payment Date, plus
(B) sum of any amounts withdrawn from the Reserve
Account on the related Transfer Date; over
(b) the Pool Balance as of the end of the preceding calendar month.
"Unscheduled Principal Payments" means, for any Payment Date, the
aggregate amount of unscheduled principal payments on the Loans received during
the related Collection Period.
SECTION 1.2. Other Interpretive Matters. All terms defined directly or by
incorporation in this Indenture shall have the defined meanings when used in any
document delivered pursuant thereto unless otherwise defined therein. For
purposes of this Indenture, unless the context otherwise requires: (a)
accounting terms not otherwise defined herein and accounting terms partly
defined herein to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles; and unless
otherwise provided, references to any month, quarter or year refer to a fiscal
month, quarter or year as determined in accordance with the fiscal calendar of
GECS; (b) unless defined in this Indenture or the context otherwise requires,
capitalized terms used in this Indenture which are defined in the UCC shall have
the meaning given such term in the UCC; (c) references to any amount as on
deposit or outstanding on any particular date means such amount at the close of
business on such day; (d) the words "hereof," "herein" and "hereunder" and words
of similar import refer to this Indenture as a whole and not to any particular
provision of this Indenture; (e) references to any Section, Schedule or Exhibit
are references to Sections, Schedules and Exhibits in or to this Indenture, and
references to any paragraph, subsection, clause or other subdivision within any
Section or definition refer to such paragraph, subsection, clause or other
subdivision of such Section or definition; (f) the term "including" means
"including without limitation"; (g) references to any law or regulation refer to
that law or regulation as amended from time to time and include any successor
law or regulation; (h) references to any agreement refer to that agreement as
from time to time amended, restated or supplemented or as the terms of such
agreement are waived or modified in accordance with its terms; (i) references to
any Person include that Person's successors and assigns; and (j) headings are
for purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
SECTION 1.3. Incorporation by Reference of TIA. Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in
and made a part of this Indenture. The following terms, where used in the TIA,
shall have the following meanings for the purposes hereof:
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
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"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
ARTICLE II
THE NOTES
SECTION 2.1. Form. The Notes shall consist of $203,000,000 principal
amount of Class A-1 Notes, $152,000,000 principal amount of Class A-2 Notes,
$279,000,000 principal amount of Class A-3 Notes, $126,514,000 principal amount
of Class A-4 Notes, $54,623,000 principal amount of Class B Notes, and
$25,210,000 principal amount of Class C Notes and the forms thereof and the
Indenture Trustee's certificate of authentication, shall be in substantially the
forms set forth in Exhibits A-1, A-2 and A-3 respectively, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon, as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of the
Notes set forth in Exhibits A-1, A-2 and A-3 are part of the terms of this
Indenture.
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is limited to $840,347,000 of Notes, except for
Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Sections 2.4, 2.5 or 9.5.
The Notes shall be issuable only in registered form and only in minimum
denominations of at least $1,000; provided that the foregoing shall not restrict
or prevent the transfer in accordance with Section 2.4 of any Note having an
Outstanding Principal Balance of other than an integral multiple of $1,000, or
the issuance of a single Note of each Class, with a denomination less than
$1,000.
SECTION 2.2. Execution, Authentication and Delivery. (a) The Notes shall
be executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
(b) Notes bearing the manual or facsimile signature of individuals who
were at the time of signature Authorized Officers of the Issuer shall bind the
Issuer, notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Notes or did not
hold such offices at the date of such Notes.
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(c) No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate of authentication shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
(d) The Notes may from time to time be executed by the Issuer and
delivered to the Indenture Trustee for authentication together with an Issuer
Request to the Indenture Trustee directing the authentication and delivery of
such Notes and thereupon the same shall be authenticated and delivered by the
Indenture Trustee in accordance with such Issuer Request.
SECTION 2.3. Temporary Notes. Pending the preparation of Definitive Notes,
the Issuer may execute, and upon receipt of an Issuer Order, the Indenture
Trustee shall authenticate and deliver, temporary Notes of the tenor of the
Definitive Notes in lieu of which they are issued and with such variations not
inconsistent with this Indenture as the officers executing such Notes may
determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuer will cause Definitive Notes to
be prepared without unreasonable delay. After the preparation of Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of the Issuer to be
maintained as provided in Section 3.2, without charge to the Noteholder. Upon
surrender for cancellation of any one or more temporary Notes, the Issuer shall
execute and the Indenture Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as if they were Definitive
Notes.
SECTION 2.4. Registration; Registration of Transfer and Exchange. (a) The
Issuer shall cause to be kept a register (the "Note Register") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Notes and the registration of transfers of Notes. The Issuer
hereby appoints the Indenture Trustee as the initial "Note Registrar" for the
purpose of registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Note Registrar, the Issuer shall promptly appoint a successor
or, if it is unable to make such an appointment, assume the duties of the Note
Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer as
the Note Registrar, the Issuer will give the Indenture Trustee prompt written
notice of the appointment of such Note Registrar and of the location, and any
change in the location, of the Note Register, and the Indenture Trustee shall
have the right to inspect the Note Register at all reasonable times, to obtain
copies thereof and to rely upon a certificate executed on behalf of the Note
Registrar by an Executive Officer thereof as to the names and addresses of the
Noteholders and the principal amounts and number of such Notes.
The Indenture Trustee shall not register the transfer of any Note (other
than the transfer of a Note to the nominee of the Clearing Agency) unless the
transferee has executed and delivered to the Indenture Trustee a certification
to the effect that either (i) the transferee is not
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(a) an employee benefit plan (as defined in Section 3(3) of ERISA) or (b) a plan
(as defined in Section 4975(e)(1) of the Code) that is subject to Section 4975
of the Code (each of the foregoing, a "Benefit Plan"), and is not acting on
behalf of or investing the plan assets of a Benefit Plan, or (ii) the
transferee's acquisition and continued holding of the Note will not give rise to
a nonexempt prohibited transaction under ERISA, Section 4975 of the Code or any
substantially similar applicable law. Each transferee of a Book-Entry Note shall
be deemed to make one of the foregoing representations.
(b) Subject to Section 2.4(a), upon surrender for registration of transfer
of any Note at the office or agency of the Issuer to be maintained as provided
in Section 3.2, if the requirements of Section 8-401(a)(1) of the UCC are met,
the Issuer shall execute, the Indenture Trustee shall authenticate and the
Noteholder shall obtain from the Indenture Trustee, in the name of the
designated transferee or transferees, one or more new Notes in any authorized
denominations of a like aggregate principal amount. At the option of the
Noteholder, Notes may be exchanged for other new Notes of the same Class in any
authorized denominations of a like aggregate principal amount, upon surrender of
the Notes to be exchanged at such office or agency. Whenever any Notes are so
surrendered for exchange, if the requirements of Section 8-401(a)(1) of the UCC
are met, the Issuer shall execute, the Indenture Trustee shall authenticate and
the Noteholder shall obtain from the Indenture Trustee, the Notes that the
Noteholder making the exchange is entitled to receive. The Indenture Trustee
shall make a notation on any such new Note of the amount of principal, if any,
that has been paid on such Note.
(c) All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt and
entitled to the same benefits under this Indenture as the Notes surrendered upon
such registration of transfer or exchange.
(d) Every Note presented or surrendered for registration of transfer or
exchange shall (if so required by the Issuer or the Indenture Trustee) be duly
endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Indenture Trustee duly executed by, the
Noteholder thereof or such Noteholder's attorney duly authorized in writing,
with such signature guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act.
(e) No service charge shall be made to a Noteholder for any registration
of transfer or exchange of Notes, but the Issuer or the Indenture Trustee will
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Section 2.3 or 9.5.
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes. (a) If: (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by the Indenture Trustee and the Issuer to hold the
Indenture Trustee and the Issuer, respectively, harmless, then, in the
27
absence of notice to the Issuer, the Note Registrar or the Indenture Trustee
that such Note has been acquired by a bona fide purchaser, and provided that the
requirements of Section 8-405 of the UCC are met, the Issuer shall execute, and
upon its request the Indenture Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
replacement Note of the same Class and principal amount and bearing a number not
contemporaneously outstanding; provided, however, that if any such destroyed,
lost or stolen Note, but not a mutilated Note, shall have become, or within
seven days shall be, due and payable, or shall have been called for redemption,
instead of issuing a replacement Note, the Issuer may pay such destroyed, lost
or stolen Note when so due or payable or upon the Redemption Date without
surrender thereof. If, after the delivery of such replacement Note (or payment
of a destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence), a bona fide purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the Issuer
and the Indenture Trustee shall be entitled to recover such replacement Note (or
such payment) from the Person to whom it was delivered or any Person taking such
replacement Note from such Person to whom such replacement Note was delivered
(or payment made) or any assignee of such Person, except a bona fide purchaser,
and shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense incurred by the
Issuer or the Indenture Trustee in connection therewith.
(b) Upon the issuance of any replacement Note under this Section, the
Issuer or the Indenture Trustee may require the payment by such Noteholder of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
(d) The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6. Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of and interest, if any,
on such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and neither the Issuer, the Indenture Trustee nor any agent of the
Issuer or the Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.7. Payment of Principal and Interest; Defaulted Interest. (a)
Any installment of interest or principal, if any, payable on any Note that is
punctually paid or duly provided for by the Issuer on the applicable Payment
Date shall be paid to the Person in whose
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name such Note (or one or more Predecessor Notes) is registered on the Record
Date by check mailed first-class, postage prepaid, to such Person's address as
it appears on the Note Register on such Record Date. However, unless Definitive
Notes have been issued, with respect to Notes registered on the Record Date in
the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payment will be made by wire transfer in immediately available
funds to the account designated by such nominee. Notwithstanding the above, the
final installment of principal payable with respect to such Note (and except for
the Redemption Price for any Note called for redemption pursuant to Section
10.1) shall be payable as provided in clause (b)(ii). The funds represented by
any such checks returned undelivered shall be held in accordance with Section
6.16.
(b) (i) The principal of each Note shall be payable in installments on
each Payment Date in an amount equal to the Class A Monthly Principal Payable
Amount, Class B Monthly Principal Payable Amount or Class C Monthly Principal
Payable Amount, as the case may be, for such Payment Date and otherwise as
provided in Section 8.3.
(i) Notwithstanding the foregoing, the entire Outstanding
Principal Balance shall be due and payable on: (A) the date on which
an Event of Default shall have occurred and be continuing if the
Indenture Trustee or the Noteholders representing not less than a
majority of the Outstanding Principal Balance of the Notes have
declared the Notes to be immediately due and payable in the manner
provided in Section 5.2, and (B) if any Notes remain Outstanding,
the Maturity Date.
(ii) Except as otherwise provided in Section 5.2, no part of
the principal of any Note shall be paid prior to the Payment Date on
which such principal is due in accordance with the preceding
provisions of this Section, except that the Issuer may redeem the
Notes in their entirety in accordance with Section 10.1.
(iii) The Indenture Trustee shall notify the Person in whose
name a Note is registered at the close of business on the Record
Date preceding the Payment Date on which the Issuer expects that the
final installment of principal of and interest on such Note will be
paid. Such notice shall be mailed no later than five days prior to
such final Payment Date and shall specify that such final
installment will be payable only upon presentation and surrender of
such Note and shall specify the place where such Note may be
presented and surrendered for payment of such installment.
(iv) All reductions in the principal amount of a Note effected
by payments of installments of principal made on any Payment Date
shall be binding upon all holders of such Note and of any Note
issued upon the registration of transfer thereof or in exchange
therefore or in lieu thereof, whether or not such payment is noted
on such Note. All payments on the Notes shall be made without any
requirement of presentment but each holder of any Note shall be
deemed to agree, by its acceptance of the same, to surrender such
Note at the Corporate Trust Office against payment of the final
installment of principal of such Note.
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(c) (i) For each Payment Date, the interest due and payable with respect
to the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes, Class
B Notes and as applicable, the Class C Notes will be the interest that has
accrued on the respective Notes since the last Payment Date or, in the case of
the first Payment Date, since the Closing Date, at the Class A-1 Interest Rate,
Class A-2 Interest Rate, Class A-3 Interest Rate, Class A-4 Interest Rate, Class
B Interest Rate and, as applicable, the Class C Interest Rate, respectively,
applied to the then Outstanding Principal Balances of the Class A-1 Notes, Class
A-2 Notes, Class A-3 Notes, Class A-4 Notes, Class B Notes and, as applicable,
the Class C Notes, respectively, on the preceding Payment Date subject to
Section 3.1. With respect to the Class A Notes, Class B Notes and Class C Notes,
the interest will be calculated on the basis of the actual number of days in the
applicable Interest Accrual Period and a 360 day year.
(ii) If the Issuer defaults in a payment of interest on the
Notes, the Issuer shall pay, in any lawful manner, defaulted
interest (plus interest on such defaulted interest to the extent
lawful) at the applicable interest rate from the Payment Date for
which such payment is in default. The Issuer shall pay such
defaulted interest on a subsequent special payment date declared by
the Issuer to the Persons who are Noteholders on a subsequent
special record date, which special record date shall be at least
five Business Days prior to the special payment date. At least 15
days before any such special record date, the Issuer shall mail to
each Noteholder a notice that states the special record date, the
special payment date and the amount of defaulted interest to be
paid.
(d) All payments made with respect to any Note shall be made in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts and shall be applied first to the
interest then due and payable on such Notes and then to the principal thereof.
SECTION 2.8. Cancellation. All Notes surrendered for payment, registration
of transfer, exchange or redemption shall, if surrendered to any Person other
than the Indenture Trustee, be delivered to the Indenture Trustee and shall be
promptly canceled by the Indenture Trustee. The Issuer may at any time deliver
to the Indenture Trustee for cancellation any Notes previously authenticated and
delivered hereunder that the Issuer may have acquired in any manner whatsoever,
and all Notes so delivered shall be promptly canceled by the Indenture Trustee.
No Notes shall be authenticated in lieu of or in exchange for any Notes canceled
as provided in this Section except as expressly permitted by this Indenture. All
canceled Notes may be held or disposed of by the Indenture Trustee in accordance
with its standard retention or disposal policy as in effect at the time unless
the Issuer shall direct by an Issuer Order that they be returned to it;
provided, that such Issuer Order is timely and the Notes have not been
previously disposed of by the Indenture Trustee.
SECTION 2.9. Book-Entry Notes. Each of the Class A Notes, the Class B
Notes and the Class C Notes, upon original issuance, will be issued in the form
of typewritten Notes representing the Book-Entry Notes, to be delivered to The
Depository Trust Company (the initial Clearing Agency), or its custodian, by, or
on behalf of, the Issuer. Each of the Class A Notes, the Class B Notes and the
Class C Notes shall initially be registered on the Note Register in the name of
Cede & Co., the nominee of The Depository Trust Company as the initial Clearing
30
Agency, and no Class A Note Owner, Class B Note Owner or Class C Note Owner will
receive a Definitive Note representing such Note Owner's interest in such Note,
except as provided in Section 2.11. Unless and until definitive, fully
registered Notes (the "Definitive Notes") representing the Class A Notes, the
Class B Notes or the Class C Notes have been issued to the applicable Note
Owners:
(i) the Issuer, the Note Registrar and the Indenture Trustee,
and their officers, directors, employees and agents may deal with
the Clearing Agency for all purposes (including the payment of
principal of and interest on the Class A Notes, the Class B Notes
and the Class C Notes) as the sole Noteholder and shall have no
obligations to the Note Owners;
(ii) to the extent that this Section conflicts with any other
provisions of this Indenture, this Section shall control;
(iii) the rights of the respective Note Owners shall be
exercised only through the Clearing Agency and the Clearing Agency
Participants and shall be limited to those established by law and
agreements between such respective Note Owners and the Clearing
Agency and/or the Clearing Agency Participants pursuant to the Note
Depository Agreement. Unless and until Definitive Notes are issued
pursuant to Section 2.11, the Issuer intends that the Clearing
Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments of principal of and
interest on the related Class A Notes, Class B Notes and Class C
Notes, as the case may be, to such Clearing Agency Participants (and
neither the Indenture Trustee nor the Note Registrar shall have any
liability therefor); and
(iv) whenever this Indenture requires or permits actions to be
taken based upon instructions, directions, or the consent of
Noteholders evidencing a specified percentage of the Outstanding
Principal Balance of the Notes (or a Class of Notes), the Clearing
Agency shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from Note
Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in
the Notes (or Class of Notes) and has delivered such instructions to
the Indenture Trustee.
SECTION 2.10. Notices to Clearing Agency. Whenever a notice or other
communication to the Class A Noteholders, Class B Noteholders or Class C
Noteholders is required under this Indenture, unless and until Definitive Notes
have been issued to the related Note Owners, the Indenture Trustee shall give
all such notices and communications to the Clearing Agency.
SECTION 2.11. Definitive Notes. (a) If: (i) the Issuer advises the
Indenture Trustee in writing that the Clearing Agency is no longer willing or
able to properly discharge its responsibilities under the Note Depository
Agreement with respect to the Notes, and the Issuer is unable to locate a
qualified successor, (ii) circumstances change so that the book-entry system
through the Clearing Agency is less advantageous due to economic or
administrative burden or
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the use of the book-entry system becomes unlawful with respect to the Notes and
the Issuer notifies the Indenture Trustee in writing that because of the change
in circumstances the Issuer is terminating the book-entry system with respect to
the Notes or (iii) after the occurrence of an Event of Default, Note Owners
representing beneficial interests aggregating at least a majority of the
Outstanding Principal Balance of the Notes advise the Clearing Agency in writing
that the continuation of a book-entry system through the Clearing Agency is no
longer in the best interests of the Note Owners, then the Clearing Agency has
undertaken to notify all Note Owners and the Indenture Trustee of the occurrence
of any such event and of the availability of Definitive Notes to Note Owners
requesting the same. Upon surrender to the Indenture Trustee of the typewritten
Notes representing the Book-Entry Notes by the Clearing Agency, accompanied by
registration and transfer instructions from the Clearing Agency for
registration, the Issuer shall execute, and the Indenture Trustee shall
authenticate, the Definitive Notes in accordance with the instructions of the
Clearing Agency. None of the Issuer, the Note Registrar or the Indenture Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Notes, all references herein to obligations
imposed upon or to be performed by the Clearing Agency shall be deemed to be
imposed upon and performed by the Issuer, to the extent applicable with respect
to such Definitive Notes, and the Issuer shall recognize the holders of the
relevant Definitive Notes as Noteholders hereunder.
(b) Definitive Notes will not be eligible for clearing or settlement
through DTC, Euroclear or Clearstream.
SECTION 2.12. Notes owned by the Issuer or its Affiliates. In determining
whether the Noteholders of the required Outstanding Principal Balance of the
Notes have concurred in any direction, waiver or consent, Notes owned by the
Issuer or an Affiliate of the Issuer shall be considered as though not
Outstanding, except that for the purposes of determining whether the Indenture
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes which a Responsible Officer actually knows are so owned shall be so
disregarded.
SECTION 2.13. CUSIP Numbers. The Issuer in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and, if so, the Indenture Trustee
shall indicate the "CUSIP" numbers of the Notes in notices of redemption and
related materials as a convenience to Noteholders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of redemption and
related materials.
SECTION 2.14. Perfection Representations and Warranties. The parties
hereto agree that the representations, warranties and covenants set forth in
Schedule 1 shall be a part of this Indenture for all purposes.
SECTION 2.15. Notes to Constitute Indebtedness. The parties hereto agree
that it is their mutual intent that, for all applicable tax purposes, the Notes
will constitute indebtedness. Further, each party hereto and each Noteholder (by
accepting and holding a Note) hereby covenants to every other party hereto and
to every other Noteholder to treat the Notes as indebtedness for all applicable
tax purposes in all tax filings, reports and returns and otherwise, and further
covenants that neither it nor any of its Affiliates will take, or participate in
the taking
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of or permit to be taken, any action that is inconsistent with the treatment of
the Notes as indebtedness for tax purposes. All successors and assignees of the
parties hereto shall be bound by the provisions hereof.
SECTION 2.16. Determination of LIBOR. LIBOR ("LIBOR") applicable to the
calculation of the Interest Rates for the Class A Notes, Class B Notes and Class
C Notes for any Interest Accrual Period shall be determined on each LIBOR Rate
Adjustment Date as follows:
For any Interest Accrual Period, the rate, as obtained by the Indenture
Trustee, one-month United States dollar deposits which appears on the Dow Jones
Telerate Screen Page 3750 as of 11:00 A.M., London, England time, on the second
LIBOR Business Day prior to the first day of such Interest Accrual Period (a
"LIBOR Rate Adjustment Date"). "Telerate Screen Page 3750" means the display
designated as page 3750 on the Telerate Service (or such other page as may
replace page 3750 on that service for the purpose of displaying London interbank
offered rates of major banks). With respect to a LIBOR Rate Adjustment Date on
which no rate appears on Telerate Page 3750, LIBOR for the applicable Interest
Accrual Period will be the rate calculated by the Indenture Trustee as the
arithmetic mean of at least two quotations obtained by the Indenture Trustee
after requesting the principal London offices of each of three major reference
banks in the London interbank market, which may include the Indenture Trustee
and its affiliates, as selected by the Indenture Trustee after consultation with
the Issuer, to provide the Indenture Trustee with its offered quotation for
deposits in U.S. dollars for a one-month period, commencing on the second London
Banking Day immediately prior to the applicable Interest Accrual Period, to
prime banks in the London interbank market at approximately 11:00 a.m., London
time, on such LIBOR Rate Adjustment Date and in a principal amount approximately
equal to the aggregate outstanding principal balance of the Notes. If at least
two such quotations are provided, LIBOR determined on the applicable LIBOR Rate
Adjustment Date will be the arithmetic mean of the quotations. If fewer than two
quotations referred to in the preceding sentence above are provided, LIBOR
determined on the applicable LIBOR Rate Adjustment Date will be the rate
calculated by the Indenture Trustee as the arithmetic mean of the rates quoted
at approximately 11:00 a.m. in New York on the applicable LIBOR Rate Adjustment
Date by one or more major banks in New York City, selected by the Indenture
Trustee after consultation with the Issuer for loans in U.S. dollars to leading
European banks, having a maturity of one month, commencing on the second London
Banking Day prior to the applicable Interest Accrual Period, and in a principal
amount that is approximately equal to the aggregate outstanding principal
balance of the Notes. If the banks so selected by the Indenture Trustee are not
quoting as provided above, LIBOR for the applicable LIBOR Rate Adjustment Date
will be LIBOR in effect on the preceding LIBOR Rate Adjustment Date.
The establishment of LIBOR by the Indenture Trustee on any LIBOR Rate
Adjustment Date and the Indenture Trustee's subsequent calculation of the Class
A-1 Interest Rate, the Class A-2 Interest Rate, the Class A-3 Interest Rate, the
Class A-4 Interest Rate, the Class B Interest Rate and the Class C Interest Rate
applicable to the relevant Interest Accrual Period, in the absence of manifest
error, shall be final and binding.
Promptly following each LIBOR Rate Adjustment Date, the Indenture Trustee
shall supply the Issuer with the results of its determination of LIBOR on such
date.
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ARTICLE III
COVENANTS
SECTION 3.1. Payments. The Issuer will duly and punctually pay the
principal of and interest, if any, on the Notes in accordance with the terms of
the Notes and this Indenture and shall not withdraw funds from the Note
Distribution Account except as set forth in Section 8.3. In addition, the Issuer
will duly and punctually pay to the Swap Counterparty, any Swap Payments
Outgoing and Swap Termination Payments when due in the priorities set forth in
Section 8.3 of this Indenture.
SECTION 3.2. Maintenance of Office or Agency. (a) The Issuer will maintain
at the Corporate Trust Office an office or agency where Notes may be surrendered
for registration of transfer or exchange, and where notices and demands to or
upon the Issuer in respect of the Notes and this Indenture may be served. The
Issuer hereby initially appoints the Indenture Trustee to serve as its agent for
the foregoing purposes.
(b) The chief executive office of the Issuer at which the Issuer maintains
its records with respect to the Loans, its interests in the Equipment, and the
transactions contemplated hereby, is currently located in Danbury, Connecticut.
The Issuer will not change the location of such offices without giving the
Indenture Trustee at least 30 days prior written notice thereof.
SECTION 3.3. Paying Agent's Obligations. The Issuer will cause each Paying
Agent to comply with the obligations of the Paying Agent set forth in Section
6.16.
SECTION 3.4. Existence. (a) The Issuer will keep in full effect its
existence, rights and franchises as a limited liability company under the laws
of the jurisdiction of its organization.
(b) The Issuer shall at all times observe and comply in all material
respects with (i) all laws applicable to it, and (ii) all requisite and
appropriate organizational and other formalities in the management of its
business and affairs and the conduct of the transactions contemplated hereby.
SECTION 3.5. Protection of the Collateral; Further Assurances. The Issuer
will from time to time execute and deliver and file, as applicable, all such
supplements and amendments hereto and all such writings of further assurance and
other writings, and will take such other action necessary or advisable to:
(i) more effectively Grant all or any portion of the
Collateral;
(ii) maintain or preserve the Lien (and the same priority
thereof) of this Indenture or carry out more effectively the
purposes hereof;
(iii) perfect, publish notice of or protect the validity of
any Grant made or to be made by this Indenture and perfect the Lien
contemplated hereby in favor of the Indenture Trustee in all
property included in the Collateral;
(iv) enforce or cause the Servicer to enforce any of the
Collateral; or
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(v) preserve and defend against the claims of all Persons and
parties, (a) title to the Collateral (including the right to receive
all payments due or to become due with respect to the Loans) and the
interests in the property included in the Collateral and (b) the
rights of the Indenture Trustee and the Noteholders with respect to
such Collateral (including the right to receive all payments due or
to become due with respect to the Loans) and interests with respect
to the property included in the Collateral.
SECTION 3.6. Opinions as to the Collateral. (a) On the Closing Date, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording and filing of this Indenture, any indentures
supplemental hereto and any other requisite documents, and with respect to the
execution and filing of any financing statements and continuation statements, as
are necessary to perfect and make effective the Lien created by this Indenture
and reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such Lien effective.
(b) On or before April 1 in each calendar year, the Issuer shall furnish
to the Indenture Trustee an Opinion of Counsel either stating that, in the
opinion of such counsel, such action has been taken with respect to the
recording, filing, re-recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents, and with respect to the
execution and filing of any financing statements and continuation statements, as
is necessary to maintain the Lien of this Indenture and reciting the details of
such action, or stating that in the opinion of such counsel no such action is
necessary to maintain such Lien. Such Opinion of Counsel shall also describe the
recording, filing, re-recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents, and the execution and
filing of any financing statements and continuation statements, that will, in
the opinion of such counsel, be required to maintain the Lien of this Indenture
until April 1 in the following calendar year.
SECTION 3.7. Performance of Obligations; Servicing of Loans. (a) The
Issuer will not take any action and will use its best efforts not to permit any
action to be taken by others that would release any Person from any material
covenants or obligations under any instrument or agreement included in the
Collateral or that would result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effectiveness of, any
such instrument or agreement, except as expressly provided in this Indenture,
the Servicing Agreement, Swap Agreement or such other instrument or agreement.
(b) The Issuer will punctually perform and observe all of its obligations
and agreements contained in this Indenture, the other Related Documents and in
the instruments and agreements included in the Collateral, including filing or
causing to be filed all UCC financing statements and continuation statements
required to be filed by this Indenture and the Servicing Agreement in accordance
with and within the time periods provided for herein and therein.
(c) The Issuer hereby covenants and agrees that it will enforce the
obligations of the Servicer under the Servicing Agreement and if a Servicer
Default shall arise from the failure of the Servicer to perform any of its
duties or obligations under the Servicing Agreement with
35
respect to the Loans, the Issuer shall take all reasonable steps available to it
to remedy such failure.
(d) The Issuer hereby covenants and agrees that: (i) it shall promptly
exercise its rights to terminate the Servicer pursuant to Section 5.1 of the
Servicing Agreement upon the occurrence of a Servicer Default set forth in
clause (a) of such section and (ii) prior to exercising its rights to terminate
the Servicer pursuant to Section 5.1 of the Servicing Agreement upon the
occurrence of a Servicer Default set forth in clause (b) of such section, obtain
the consent of the Noteholders representing a majority of the Outstanding
Principal Balance of the Notes. Within thirty (30) days after the giving of
notice of termination to the Servicer of the Servicer's rights and powers
pursuant to Section 6.2 of the Servicing Agreement, the Issuer shall appoint a
successor servicer (the "Successor Servicer"), such appointment to be reflected
by a written assumption in a form acceptable to the Indenture Trustee. In the
event that a Successor Servicer has not been appointed and accepted its
appointment at the time when the previous Servicer ceases to act as Servicer,
the Indenture Trustee without further action shall automatically be appointed
the Successor Servicer. The Indenture Trustee may resign as the Servicer by
giving written notice of such resignation to the Issuer and in such event will
be released from such duties and obligations, such release not to be effective
until the date a Successor Servicer enters into a servicing agreement with the
Issuer as provided below. Upon delivery of any such notice to the Issuer, the
Issuer shall obtain a new servicer as the Successor Servicer under the Servicing
Agreement. Any Successor Servicer other than the Indenture Trustee shall: (i) be
an established financial institution having a net worth of not less than
$50,000,000 and whose regular business includes the servicing of receivables and
(ii) enter into a servicing agreement with the Issuer having substantially the
same provisions as the provisions of the Servicing Agreement applicable to the
Servicer. If the Indenture Trustee shall succeed to the previous Servicer's
duties as servicer of the Loans as provided herein, it shall do so in its
individual capacity and not in its capacity as Indenture Trustee and,
accordingly, the provisions of Article VI shall be inapplicable to the Indenture
Trustee in its duties as the Successor Servicer and the servicing of the Loans.
In case the Indenture Trustee shall become the Successor Servicer under the
Servicing Agreement, the Indenture Trustee shall be entitled to appoint as
Servicer any one of its Affiliates; provided, that it shall be fully liable for
the actions and omissions of such Affiliate in its capacity as Successor
Servicer.
(e) Upon any termination of the Servicer's rights and powers pursuant to
the Servicing Agreement, the Issuer shall promptly notify the Indenture Trustee
and Moody's. As soon as a Successor Servicer is appointed, the Issuer shall
notify the Indenture Trustee of such appointment, specifying in such notice the
name and address of such Successor Servicer.
(f) The Issuer agrees that it will not, without the prior written consent
of the Indenture Trustee or the Noteholders of at least a majority of the
Outstanding Principal Balance, amend, modify, waive, supplement, terminate or
surrender, or agree to any amendment, modification, supplement, termination,
waiver or surrender of, the terms of any Collateral (except to the extent
otherwise in accordance with the Credit and Collection Policies) or the Related
Documents, or waive timely performance or observance by the Purchaser under the
Purchase and Sale Agreement, the applicable Seller under the Sale Agreement or
the Servicer under the Servicing Agreement; provided, that, no such amendment or
waiver shall: (i) increase or reduce in any manner the amount of, or accelerate
or delay the timing of, deposits required to
36
be made to the Trust Accounts and payments that are required to be made from the
Trust Accounts for the benefit of the Noteholders, or (ii) reduce the aforesaid
percentage of the Notes that are required to consent to any such amendment, in
either case without the consent of the Noteholders of all the Outstanding Notes.
If any such amendment, modification, supplement or waiver shall be so consented
to by the Indenture Trustee or such Noteholders, the Issuer agrees, promptly
following a request by the Indenture Trustee to do so, to execute and deliver,
in its own name and at its own expense, such agreements, instruments, consents
and other documents as the Indenture Trustee may deem necessary or appropriate
in the circumstances.
(g) Promptly following a request from the Indenture Trustee to do so and
at the Issuer's expense, the Issuer shall take all such lawful action as the
Indenture Trustee may request to compel or secure the performance and observance
by the Servicer of its obligations to the Issuer under or in connection with the
Servicing Agreement or by the Purchaser of its obligations to the Issuer under
or in connection with the Purchase and Sale Agreement in accordance with the
terms thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with the
Servicing Agreement (or under or in connection with the Purchase and Sale
Agreement) to the extent and in the manner directed by the Indenture Trustee,
including the transmission of notices of default on the part of the Servicer or
the Purchaser thereunder and the institution of legal or administrative actions
or proceedings to compel or secure performance by the Servicer or the Purchaser
of each of their obligations under the Servicing Agreement or the Purchase and
Sale Agreement.
SECTION 3.8. Taxes. The Issuer shall pay all taxes when due and payable or
levied against its assets, properties or income, including any property that is
part of the Collateral.
SECTION 3.9. Annual Statement as to Compliance. The Issuer will deliver to
the Indenture Trustee, on or before March 15 after the end of each calendar year
of the Issuer (commencing with the calendar year 2005), an Officers'
Certificate, substantially in the form of Exhibit B, stating that:
(i) a review of the activities of the Issuer during such year
and of performance under this Indenture has been made under such
Authorized Officers' supervision; and
(ii) to the best of such Authorized Officers' knowledge, based
on such review, the Issuer has complied with all conditions and
covenants under this Indenture throughout such year or, if there has
been a default in the compliance of any such condition or covenant,
specifying each such default known to such Authorized Officers and
the nature and status thereof.
SECTION 3.10. Negative Covenants. So long as any Notes are Outstanding,
the Issuer shall not:
(a) sell, transfer, exchange or otherwise dispose of any of the properties
or assets of the Issuer, including those included in the Collateral, except as
expressly permitted by this Indenture or Section 6.2 of the Sale Agreement;
37
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly withheld
from such payments under the Code or applicable State law) or assert any claim
against any present or former Noteholder by reason of the payment of the taxes
levied or assessed upon any part of the Collateral;
(c) engage in any business or activity other than in connection with, or
relating to the financing, purchasing, owning, selling and managing ownership
of, the Loans and the interests in the property constituting the Collateral, the
issuance of the Notes, and the specific transactions contemplated by the Related
Documents and activities incidental thereto;
(d) issue, incur, assume, or allow to remain outstanding any indebtedness,
or guaranty any indebtedness or otherwise become liable, directly or indirectly
for any Indebtedness of any Person, other than the Notes or Swap Agreement,
except as contemplated by this Indenture and the other Related Documents;
(e) seek dissolution or liquidation in whole or in part or reorganization
of its business or affairs;
(f) (A) permit the validity or effectiveness of this Indenture to be
impaired, or permit the Lien of this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released from
any covenants or obligations with respect to the Notes under this Indenture
except as may be expressly permitted hereby, (B) permit any Lien (other than the
Lien of this Indenture) to be created on or extend to or otherwise arise upon or
burden the Collateral or any part thereof or any interest therein or the
proceeds thereof or (C) permit the Lien of this Indenture not to constitute a
valid first priority (other than with respect to any tax lien, mechanics' lien
or other lien not considered a Lien) "security interest" (as such term is
defined in Section 1-201 of Article 1 of the UCC) in the Collateral;
(g) make any loan or advance to any Affiliate of the Issuer or to any
other Person;
(h) make any expenditure (by long-term or operating lease or otherwise)
for capital assets (either realty or personalty);
(i) remove the Managing Member without cause unless the Rating Agency
Condition shall have been satisfied in connection with such removal;
(j) directly or indirectly: (i) pay any dividend or make any distribution
(by reduction of capital or otherwise), whether in cash, property, securities or
a combination thereof, with respect to any ownership or equity interest or
security in or of the Issuer, (ii) redeem, purchase, retire or otherwise acquire
for value any such ownership or equity interest or security, (iii) set aside or
otherwise segregate any amounts for any such purpose or (iv) make payments to or
distributions from the Collection Account, in each case, except in accordance
with this Indenture and the Related Documents;
(k) convey or transfer any of its properties or assets, including those
included in the Collateral, to any Person, unless (i) the Person that acquires
such property or assets shall: (A) expressly agree by means of such supplemental
indenture that all right, title and interest so conveyed or transferred shall be
subject and subordinate to the rights of Noteholders and
38
(B) expressly agree by means of such supplemental indenture that such Person (or
if a group of Persons, then one specified Person) shall make all filings with
the Commission (and any other appropriate Person) required by the Securities
Exchange Act in connection with the Notes and (ii) the conditions in clause (l)
below have been satisfied; and
(l) consolidate or merge with or into any other Person or convey or
transfer any of its properties or assets, including those included in the
Collateral, to any Person unless:
(i) such Person shall be a United States citizen or a Person
organized and existing under the laws of the United States of
America or any State,
(ii) such Person shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Indenture
Trustee, in form satisfactory to the Indenture Trustee, the due and
punctual payment of the principal of and interest on all Notes and
the performance or observance of every agreement and covenant of
this Indenture on the part of the Issuer to be performed or
observed, all as provided herein,
(iii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iv) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(v) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to the Issuer or any Noteholder;
(vi) any action that is necessary to maintain the Lien created
by this Indenture and the same priority thereof shall have been
taken; and
(vii) the Issuer shall have delivered to the Indenture Trustee
an Officers' Certificate and an Opinion of Counsel each stating that
such consolidation or merger or such conveyance or transfer, as the
case may be, and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Securities Exchange Act).
SECTION 3.11. Successor or Transferee. (a) Upon any consolidation or
merger of the Issuer in accordance with Section 3.10(l), the Person formed by or
surviving such consolidation or merger (if other than the Issuer) shall succeed
to, and be substituted for, and may exercise every right and power of and have
every obligation of, the Issuer under this Indenture with the same effect as if
such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of the
Issuer pursuant to Section 3.10(k), the Issuer will be released from every
covenant and agreement of this Indenture to be observed or performed on the part
of the Issuer with respect to the Notes
39
immediately upon the delivery of written notice to the Indenture Trustee stating
that the Issuer is to be so released.
SECTION 3.12. Notice of Events of Default. (a) The Issuer shall give the
Indenture Trustee and the Rating Agencies prompt written notice of each Event of
Default hereunder, each default on the part of the Servicer of its obligations
under the Servicing Agreement (and, in the case of a Servicer Default, shall
specify in such notice the action, if any, the Issuer is taking with respect to
such default) each default on the part of the Purchaser of its obligations under
the Purchase and Sale Agreement and the occurrence of each Swap Event of Default
and Swap Termination Event.
(b) The Issuer shall deliver to the Indenture Trustee, within five days
after the Issuer obtains actual knowledge thereof, written notice in the form of
an Officers' Certificate of any event that, with the giving of notice or the
lapse of time or both, would become an Event of Default under clause (iii) of
the definition thereof, its status and what action the Issuer is taking or
proposes to take with respect thereto.
SECTION 3.13. Further Instruments and Acts. Upon request of the Indenture
Trustee, the Issuer will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture. (a) This Indenture
shall cease to be of further effect except as to: (i) rights of registration of
transfer and exchange, (ii) substitution of mutilated, destroyed, lost or stolen
Notes, (iii) rights of Noteholders to receive payments of principal thereof and
interest thereon, (iv) Section 3.2, (v) the rights, obligations and immunities
of the Indenture Trustee hereunder (including the rights of the Indenture
Trustee under Section 6.7) and the obligations of the Indenture Trustee under
Sections 4.2 and 6.4) and (vi) the rights of Noteholders and Swap Counterparty
as beneficiary hereof with respect to the property so deposited with the
Indenture Trustee payable to all or any of them, and the Indenture Trustee, on
demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the
Notes, when (A) all Notes theretofore authenticated and delivered to Noteholders
(other than (x) Notes that have been destroyed, lost or stolen and that have
been replaced or paid as provided in Section 2.5 and (y) Notes in respect of
which funds have theretofore been deposited in trust or segregated and held in
trust by the Issuer as provided in Section 6.16(i)) have been delivered to the
Indenture Trustee for cancellation and (B) the Issuer has paid or caused to be
paid or provided for (to the satisfaction of the Person entitled thereto) all
other sums due and payable with respect to the Swap Agreement; provided that the
Issuer has delivered to the Indenture Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
(b) Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Indenture Trustee under Section 6.7, and if
funds shall have been deposited
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with the Indenture Trustee pursuant to Section 4.1(a)(A)(y), the obligations of
the Indenture Trustee under Sections 4.2 and 6.17 (in its capacity as Paying
Agent) shall survive.
(c) The Indenture Trustee shall provide prompt written notice to each
Rating Agency of any satisfaction and discharge of this Indenture pursuant to
this Article IV.
SECTION 4.2. Application of Trust Funds. All funds deposited with the
Indenture Trustee pursuant to Section 4.1 shall be held in trust and (a) applied
by it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent, as the Indenture Trustee
may determine, to the Noteholders of the particular Notes for the payment or
redemption of which such funds have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest or (b)
applied by it in accordance with the provisions of this Indenture to the
payment, either directly or through any Paying Agent, as the Indenture Trustee
may determine, to the Swap Counterparty any Swap Payments Outgoing or Swap
Termination Payments due; but such funds need not be segregated from other funds
except to the extent required herein or as required by law.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default. "Event of Default", wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) default in the payment of any interest on any Note when
the same becomes due and payable, and such default shall continue
for a period of five days;
(ii) default in the payment of the principal of any Note at
the Maturity Date;
(iii) default in the observance or performance of any covenant
or agreement of the Issuer made in this Indenture (other than a
covenant or agreement a default in the observance or performance of
which is elsewhere in this Section specifically dealt with), or any
representation or warranty of the Issuer made in this Indenture or
in any certificate or other writing delivered pursuant hereto or in
connection herewith proving to have been incorrect in any material
respect as of the time when the same shall have been made, and such
default shall continue or not be cured, or the circumstance or
condition in respect of which such misrepresentation or warranty was
incorrect shall not have been eliminated or otherwise cured, for a
period of 30 days (or for such longer period, not in excess of 90
days, as may be reasonably necessary to remedy such default if the
Issuer delivers an Officer's Certificate to the Indenture Trustee to
the effect that the Issuer has commenced, or will promptly commence
and diligently pursue, all reasonable efforts to remedy such default
and such default can be remedied in
41
90 days or less) after there shall have been given, by registered or
certified mail, to the Issuer by the Indenture Trustee or to the
Issuer and the Indenture Trustee by the Noteholders of at least 25%
of the Outstanding Principal Balance of the Notes, a written notice
specifying such default or incorrect representation or warranty and
requiring it to be remedied and stating that such notice is a notice
of Default hereunder; or
(iv) any Insolvency Event shall occur with respect to the
Issuer.
SECTION 5.2. Remedies. (a) If an Event of Default should occur and be
continuing, the Indenture Trustee may, and, at the direction (which direction
shall be in writing) of the Noteholders, pursuant to Section 5.8 or, in the case
of clause (viii) below, at the direction (which direction shall be in writing)
of not less than 66-2/3% of the Outstanding Principal Balance of the Notes, the
Indenture Trustee shall (subject to Section 6.2(a)(v)), do one or more of the
following:
(i) declare all the Notes to be immediately due and payable,
by a notice in writing to the Issuer, and upon any such declaration
the Outstanding Principal Balance, together with accrued and unpaid
interest thereon through the date of acceleration, shall become
immediately due and payable;
(ii) in the case of an Event of Default described in Section
5.1(i) or (ii), demand the Issuer to pay to the Indenture Trustee,
for the benefit of the Noteholders, the whole amount then due and
payable on the Notes for principal and interest, with interest upon
the overdue principal at the applicable interest rate, and, to the
extent payment at such rate of interest shall be legally
enforceable, upon overdue installments of interest, at the
applicable interest rate, and in addition thereto such further
amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its agents
and counsel;
(iii) institute Proceedings in its own name and as trustee of
an express trust for the collection of all amounts then payable on
the Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from the Issuer amounts adjudged due;
(iv) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the
Collateral;
(v) exercise any remedies of a secured party under the UCC as
in effect in the State of New York and take any other appropriate
action to protect and enforce the rights and remedies of the
Indenture Trustee, the Swap Counterparty and the Noteholders;
(vi) subject to Section 5.14, sell the Collateral, or any
portion thereof or rights or interest therein, at one or more public
or private sales called and conducted in any manner permitted by
law;
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(vii) make demand upon the Issuer, by written notice, that the
Issuer deliver to the Indenture Trustee all Loan Files (in which
event the Issuer covenants to make demand upon the Servicer to so
deliver such Loan Files); and
(viii) exercise all rights, remedies, powers, privileges and
claims of the Issuer against the Servicer or the Purchaser under or
in connection with the Servicing Agreement and the Purchase and Sale
Agreement, including the right or power to terminate or to take any
action to compel or secure performance or observance by the Servicer
or the Purchaser of each of their obligations to the Issuer
thereunder and to give any consent, request, notice, direction,
approval, extension or waiver under the Servicing Agreement or the
Purchase and Sale Agreement, and any right of the Issuer to take
such action shall be suspended.
(b) At any time after a declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the amount due has been
obtained by the Indenture Trustee as hereinafter in this Article V provided, the
Noteholders of Notes representing not less than a majority of the Outstanding
Principal Balance, by written notice to the Issuer and the Indenture Trustee,
may rescind and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(A) all payments of principal of and interest on all Notes
including any payments payable to the Swap Counterparty under the
Swap Agreement and all other amounts that would then be due
hereunder or upon such Notes if the Event of Default giving rise to
such acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture Trustee
hereunder and the reasonable compensation, expenses, disbursements
and advances of the Indenture Trustee and its agents and counsel;
and
(ii) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such
acceleration, have been cured or waived as provided in Section 5.9.
No such rescission shall affect any subsequent Event of Default or impair
any right consequent thereto.
(c) In case there shall be pending, relative to the Issuer or any Person
having or claiming an ownership interest in the Collateral, Proceedings under
Title 11 of the United States Code or any other applicable Federal or State
bankruptcy, insolvency or other similar law, or in case a receiver, assignee,
trustee in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Issuer or its
property or such other Person, or in case of any other comparable judicial
Proceedings relative to the Issuer, or to the creditors or property of the
Issuer, the Indenture Trustee (irrespective of whether the principal of any
Notes shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Indenture Trustee shall have made any
demand pursuant to this Section) shall be entitled and empowered to, and, at the
direction (which
43
direction shall be in writing) of the Noteholders pursuant to Section 5.8 by
intervention in such proceedings or otherwise:
(i) file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and
to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee
(including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee, except as a result
of negligence or bad faith) and of the Noteholders allowed in such
Proceedings;
(ii) unless prohibited by applicable law or regulations, vote
on behalf of the Noteholders in any election of a trustee, a standby
trustee or any Person performing similar functions in any such
Proceedings;
(iii) collect and receive any amounts or other property
payable or deliverable on any such claims and to distribute all
amounts received with respect to the claims of the Noteholders, the
Swap Counterparty and of the Indenture Trustee on their behalf; and
(iv) file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the
Swap Counterparty, Indenture Trustee or the Noteholders allowed in
any judicial Proceedings relative to the Issuer, its creditors and
its property;
and any trustee, receiver, liquidator, assignee, custodian, sequestrator or
other similar official in any such Proceeding is hereby authorized by each of
such Noteholders or the Swap Counterparty to make payments to the Indenture
Trustee, and, in the event that the Indenture Trustee shall consent to the
making of payments directly to such Noteholders or the Swap Counterparty, to pay
to the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee except as a result of negligence or bad faith.
(d) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Noteholder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(e) All rights of action and of asserting claims under this Indenture, or
under any of the Notes or the Swap Agreement, may be enforced by the Indenture
Trustee without the possession of any of the Notes or the production thereof in
any trial or other Proceedings relative
44
thereto, and any such action or Proceedings instituted by the Indenture Trustee
shall be brought in its own name and as trustee of an express trust, and any
recovery of judgment, subject to the payment of the expenses, disbursements and
compensation of the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents and attorneys, shall be for the benefit of the
Noteholders and the Swap Counterparty as provided in this Indenture.
(f) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders and the Swap Counterparty, and it shall
not be necessary to make any Noteholder or the Swap Counterparty a party to any
such Proceedings.
SECTION 5.3. [Reserved].
SECTION 5.4. Unconditional Rights of Noteholders To Receive Principal and
Interest. Notwithstanding any other provisions in this Indenture, each
Noteholder shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Note on or after the
respective due dates thereof expressed in such Note or in this Indenture (or, in
the case of redemption, on or after the Redemption Date) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Noteholder.
SECTION 5.5. Restoration of Rights and Remedies. If the Indenture Trustee
or any Noteholder has instituted any Proceeding to enforce any right or remedy
under this Indenture and such Proceeding has been discontinued or abandoned for
any reason or has been determined adversely to the Indenture Trustee or to such
Noteholder, then and in every such case the Issuer, the Indenture Trustee and
the Noteholders shall, subject to any determination in such Proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Indenture Trustee and the Noteholders
shall continue as though no such Proceeding had been instituted.
SECTION 5.6. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost, or
stolen Notes in Section 2.5(d), no right or remedy herein conferred upon or
reserved to the Indenture Trustee or to the Noteholders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.7. Delay or Omission Not a Waiver. No delay or omission of the
Indenture Trustee or any Noteholder to exercise any right or remedy accruing
upon any Default or Event of Default shall impair any such right or remedy or
constitute a waiver of any such Default or Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Indenture
Trustee or to the Noteholders may be exercised from time to time, and as often
as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as
the case may be.
45
SECTION 5.8. Control by Noteholders. (a) Except as otherwise expressly
provided in this Indenture, the Noteholders of not less than a majority of the
Outstanding Principal Balance of the Notes shall have the right to (i) direct
the time, method and place of conducting any Proceeding for any remedy available
to the Indenture Trustee with respect to the Notes, (ii) accelerate the Notes
pursuant to Section 5.2 after an Event of Default or (iii) exercise any trust or
power conferred on the Indenture Trustee; provided, that such direction shall
not be in conflict with any rule of law or with this Indenture; provided,
further, that, subject to Section 6.1, the Indenture Trustee need not take any
action that it determines might involve it in liability on the part of the
Indenture Trustee for which the Indenture Trustee is not indemnified to its
satisfaction or might materially adversely affect the rights of any
Noteholder(s) not consenting to such action. The Indenture Trustee may take any
other action deemed proper by the Indenture Trustee that is not inconsistent
with such direction.
(b) No Noteholder shall have any right to institute any Proceeding, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(i) such Noteholder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(ii) the Noteholder(s) of not less than 66-2/3% of the
Outstanding Principal Balance of the Notes have made written request
to the Indenture Trustee to institute such Proceeding in respect of
such Event of Default in its own name as Indenture Trustee
hereunder;
(iii) such Noteholder(s) have offered to the Indenture Trustee
indemnity reasonably acceptable to the Indenture Trustee against the
costs, expenses and liabilities to be incurred in complying with
such request;
(iv) the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute
such Proceeding;
(v) so long as any of the Notes remain Outstanding, no
direction by other Noteholders inconsistent with such written
request has been given to the Indenture Trustee during such 60-day
period by the Noteholders of 66-2/3% of the Outstanding Principal
Balance of the Notes;
(vi) with respect to any bankruptcy reorganization,
arrangement, insolvency or liquidation proceedings, or similar
proceedings under any United States Federal or State bankruptcy or
similar law, the Noteholders representing not less than 66-2/3% of
the Outstanding Principal Balance of each Class of Notes that
remains Outstanding has consented thereto in writing; provided that
the foregoing shall not in anyway limit the Noteholder's rights to
pursue any other creditor rights or remedies that the Noteholders
may have for claims against the Issuer;
it being understood and intended that no one or more Noteholder(s) shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb
46
or prejudice the rights of any other Noteholder or to obtain or to seek to
obtain priority or preference over any other Noteholder(s) or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the other Noteholders. Nothing in this Section
shall be construed as limiting the rights of otherwise qualified Noteholders to
petition a court for the removal of an Indenture Trustee pursuant to Section 6.8
hereof.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Noteholders, each
representing less than a majority of the Outstanding Principal Balance of the
Notes, the Indenture Trustee in its sole discretion may determine what action,
if any, shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.9. Waiver of Past Defaults. Prior to the time a judgment or
decree for payment of amounts due has been obtained as described in Section 5.2,
the Noteholders of not less than a majority of the Outstanding Principal Balance
of the Notes may waive any past Default or Event of Default and its consequences
except a Default: (a) in payment of principal of or interest on any of the Notes
or (b) in respect of a covenant or provision hereof that cannot be modified or
amended without the consent of each Noteholder. In the case of any such waiver,
the Issuer, the Indenture Trustee and the Noteholders shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
SECTION 5.10. Undertaking for Costs. All parties to this Indenture agree
(and each Noteholder by such Noteholder's acceptance thereof shall be deemed to
have agreed) that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorney's fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to: (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder(s) holding in the
aggregate more than 10% of the Outstanding Principal Balance of the Notes or (c)
any suit instituted by any Noteholder for the enforcement of the payment of
principal of or interest on any Note on or after the respective due dates
expressed in such Note and in this Indenture (or, in the case of redemption, on
or after the Redemption Date).
SECTION 5.11. Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance
47
of this Indenture; and the Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Indenture Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 5.12. Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the Lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Collateral or upon any of
the assets of the Issuer. Any funds or other property collected by the Indenture
Trustee shall be applied in accordance with Section 8.3(d).
SECTION 5.13. [Reserved]
SECTION 5.14. Sale of Collateral. (a) The power to effect any sale of any
portion of the Collateral described pursuant to Section 5.2 shall not be
exhausted by any one or more sales as to any portion of the Collateral remaining
unsold, but shall continue unimpaired until the entire Collateral shall have
been sold or all amounts due under this Indenture have been paid in full. The
Indenture Trustee may from time to time, upon directions in accordance with
Section 5.8, postpone any public sale by public announcement made at the time
and place of such sale. For any public sale of the Collateral, the Indenture
Trustee shall have provided each Noteholder and Moody's with notice of such sale
at least two weeks in advance of such sale which notice shall specify the date,
time and location of such sale.
(b) To the extent permitted by applicable law, the Indenture Trustee shall
not in any private sell to a third party the Collateral, or any portion thereof
unless,
(i) the holders of not less than 66-2/3% of the then
Outstanding Principal Balance of the Notes consent to or direct the
Indenture Trustee in writing to make such sale; or
(ii) the proceeds of such sale would be not less than the sum
of all amounts due under this Indenture.
(c) In connection with a sale of all or any portion of the Collateral:
(i) any one or more Noteholders may bid for and purchase the
property offered for sale, and upon compliance with the terms of
sale may hold, retain, and possess and dispose of such property,
without further accountability, and any Noteholder may, in paying
the purchase price therefore, deliver in lieu of cash any
Outstanding Notes or claims for interest thereon for credit in the
amount that shall, upon distribution of the net proceeds of such
sale, be payable thereon, and the Notes, in case the amounts so
payable thereon shall be less than the amount due thereon, shall be
returned to the Noteholders after being appropriately stamped to
show such partial payment;
48
(ii) the Indenture Trustee is hereby irrevocably appointed the
agent and attorney-in-fact of the Issuer to transfer and convey any
portion of the Collateral in connection with a sale thereof, and to
take all action necessary to effect such sale;
(iii) the Indenture Trustee shall execute and deliver an
appropriate instrument of conveyance transferring, without
representation, warranty or recourse, any portion of the Collateral
in connection with a sale thereof;
(iv) no purchaser or transferee at such a sale shall be bound
to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application
of any funds; and
(v) the Indenture Trustee may not sell or otherwise liquidate
the Collateral following an Event of Default, other than an Event of
Default described in Sections 5.1(i) or (ii), unless the applicable
conditions in this Section 5.14 are met and: (A) all the Noteholders
direct in writing a sale or liquidation of the Collateral, (B)(i)
the Indenture Trustee determines, based on a certification of the
Issuer, that the anticipated proceeds of such sale or liquidation
(after deducting the reasonable expenses of such sale or
liquidation), based on a certificate of the Issuer, would be
sufficient to discharge in full all amounts due and unpaid upon such
Notes and other amounts payable pursuant to Sections 8.3(d) and (ii)
the Noteholders acting unanimously do not direct in writing the
Indenture Trustee to the contrary within fifteen days of receipt of
notice of such determination by the Indenture Trustee or (C) the
Indenture Trustee determines that the Collateral will not continue
to provide sufficient funds for the payment of principal of and
interest on the Notes as they would have become due if the Notes had
not been declared due and payable, and the Indenture Trustee obtains
the consent of Noteholders of 66-2/3% of the Outstanding Principal
Balance of the Notes. In determining whether to sell or hold the
Collateral, the Indenture Trustee may obtain and rely upon an
opinion of any Independent investment banking or accounting firm of
national reputation in the United States as to the feasibility of
such proposed action and as to the sufficiency of the Collateral to
discharge in full all amounts then due and unpaid upon the Notes for
principal and interest.
(d) The method, manner, time, place and terms of any sale of all or any
portion of the Collateral shall be commercially reasonable.
(e) The provisions of this Section shall not be construed to restrict the
ability of the Indenture Trustee to exercise any rights and powers against the
Issuer or the Collateral that are vested in the Indenture Trustee by this
Indenture, including, without limitation, the power of the Indenture Trustee to
proceed against the collateral subject to the lien of this Indenture and to
institute judicial proceedings for the collection of any deficiency remaining
thereafter.
(f) The purchase price received by the Indenture Trustee in respect of any
sale made in accordance with this Section shall be deemed conclusive and binding
on the parties hereto and the Noteholders and the proceeds of such sale shall be
applied in accordance with Section 8.3(d).
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ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1. Duties of the Indenture Trustee. (a) If an Event of Default
has occurred and is continuing, the Indenture Trustee shall exercise the rights
and powers vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default actually known to
a Responsible Officer:
(i) the Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture
and no implied covenants or obligations shall be read into this
Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; provided, however, in the case of
any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the
Indenture Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) No provision of this Indenture shall be construed to relieve the
Indenture Trustee from liability for its own grossly negligent action, its own
grossly negligent failure to act, or its own willful misconduct, except that:
(i) this clause (c) does not limit the effect of clause (b) of
this Section;
(ii) the Indenture Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Indenture Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to this Indenture;
(iv) the Indenture Trustee shall not be charged with knowledge
of an Event of Default or Servicer Default unless a Responsible
Officer obtains actual knowledge of such event or the Indenture
Trustee receives written notice of such event from the Issuer or
Note Owners owning Notes aggregating not less than 10% of the
Outstanding Principal Balance of the Notes; and
(v) the Indenture Trustee shall have no duty to monitor the
performance of the Issuer or its agents, nor shall it have any
liability in connection with malfeasance or nonfeasance by the
Issuer. The Indenture Trustee shall have no liability in connection
with compliance of the Issuer or its agents with statutory
50
or regulatory requirements related to the Loans. The Indenture
Trustee shall not make or be deemed to have made any representations
or warranties with respect to the Loans or the validity or
sufficiency of any assignment of the Loans to the Collateral or the
Indenture Trustee.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to clauses (a), (b), (c) and (g) of this Section
6.1.
(e) The Indenture Trustee shall not be liable for interest on any amounts
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(f) No provision of this Indenture shall require the Indenture Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds to believe that repayments
of such funds or adequate indemnity satisfactory to it against any loss,
liability or expense is not reasonably assured to it.
(g) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Indenture Trustee shall be subject to this Section and the
TIA.
(h) The Indenture Trustee:
(i) shall at all times be a "participant" (as such term is
defined in the Federal Book-Entry Regulations) in the Federal
Reserve System;
(ii) shall, to the extent that any of the Trust Accounts is a
Securities Account, comply with all of the obligations of a
Securities Intermediary under Article 8 of the UCC with respect
thereto; and
(iii) agrees that each item of property including cash
received by it for deposit in or credit to a Trust Account, and each
investment made by it pursuant to Section 8.6 shall constitute and
be treated by it as a Financial Asset.
(i) No person other than the Indenture Trustee as provided herein and the
Custodian as approved in the Custody and Control Agreement, shall have "control"
(as such term is defined in Section 8-106 of Article 8 of the UCC and Section
9-401 of Article 9 of the UCC) of any of the Trust Accounts.
SECTION 6.2. Rights of Indenture Trustee. (a) Subject to the provisions of
Section 6.1:
(i) the Indenture Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, note, debenture, other
evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper
party or parties (and the Indenture Trustee need not investigate any
fact or matter stated in the document);
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(ii) any request or direction or action of the Issuer
mentioned herein shall be sufficiently evidenced by an Issuer Order;
(iii) whenever in the administration of this Indenture the
Indenture Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Indenture Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, conclusively rely upon an Officers' Certificate;
(iv) the Indenture Trustee may consult with counsel as to
legal matters and the advice or opinion of any such counsel selected
by the Indenture Trustee with respect to legal matters relating to
this Indenture and the Notes shall be full and complete
authorization and protection from liability in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(v) the Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture
at the request or direction of any of the Noteholders pursuant to
this Indenture, unless such Noteholders shall have offered to the
Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(vi) the Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, note, debenture, other evidence
of indebtedness, or other paper or document, but the Indenture
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if
the Indenture Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records
and premises of the Issuer, personally or by agent or attorney;
(vii) the Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through agents, attorneys, custodians or nominees and the
Indenture Trustee shall not be responsible for any misconduct or
negligence on the part of any agent, attorney, custodian or nominee
appointed with due care by it hereunder;
(viii) the Indenture Trustee shall not be liable for any
action it takes or omits to take in good faith which it believes to
be authorized or within its rights or powers; provided, however,
that the Indenture Trustee's conduct does not constitute willful
misconduct, negligence or bad faith;
(ix) the Indenture Trustee shall not be required to give any
bond or surety in respect of the performance of its powers and
duties hereunder;
(x) the Indenture Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any covenants,
conditions or agreements on the part of the Issuer;
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(xi) the permissive rights of the Indenture Trustee to do
things enumerated in this Indenture shall not be construed as a duty
and the Indenture Trustee shall not be answerable for other than its
gross negligence or willful default; and
(xii) in the event that the Indenture Trustee is also acting
as Paying Agent or Note Registrar hereunder, the rights and
protections afforded to the Indenture Trustee pursuant to this
Article VI shall also be afforded to such Paying Agent or Note
Registrar.
(b) The recitals contained herein and in the Notes, except the Indenture
Trustee's certificates of authentication, shall be taken as the statements of
the Issuer, and the Indenture Trustee assumes no responsibility for their
correctness. The Indenture Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Notes, except to the extent provided
by the Indenture Trustee's certificate of authentication on the Notes. The
Indenture Trustee shall not be accountable for the use or application by the
Issuer of the proceeds of the Notes.
SECTION 6.3. Individual Rights of the Indenture Trustee. The Indenture
Trustee shall not, in its individual capacity, but may in a fiduciary capacity,
become the owner of Notes or otherwise extend credit to the Issuer. The
Indenture Trustee may otherwise deal with the Issuer or its Affiliates with the
same rights it would have if it were not the Indenture Trustee. Any Paying
Agent, Note Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Indenture Trustee must comply with Sections 6.11 and 6.13.
SECTION 6.4. Funds Held in Trust. Funds and investments and other property
held by the Indenture Trustee shall be segregated and held in one or more Trust
Accounts held with the Indenture Trustee hereunder.
SECTION 6.5. Notice of Defaults. If a Default occurs and is continuing and
is actually known to a Responsible Officer, the Indenture Trustee shall mail to
each Noteholder notice of the Default within 90 days after it occurs. Except in
the case of a Default in payment of principal of or interest on any Note
(including payments pursuant to the mandatory redemption provisions of such
Note), the Indenture Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Noteholders.
SECTION 6.6. [Reserved]
SECTION 6.7. Compensation and Indemnity. The Issuer shall pay to the
Indenture Trustee from time to time reasonable compensation for its services
hereunder as the Issuer and the Indenture Trustee may agree in writing (which
compensation shall not be limited by any law on compensation of a trustee of an
express trust). The Issuer shall reimburse the Indenture Trustee upon its
request, for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Indenture Trustee's agents, counsel,
accountants and experts. The Issuer shall indemnify the
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Indenture Trustee and its officers, directors, employees and agents and hold
them harmless against any and all loss, liability or expense (including
attorneys' fees and disbursements) incurred by them in connection with the
administration of this trust and the performance of its duties hereunder,
including the costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of their duties
hereunder. The Indenture Trustee shall notify the Issuer with a copy to the
Servicer, promptly of any claim for which it may seek indemnity. Failure by the
Indenture Trustee to so notify the Issuer shall not relieve the Issuer of its
obligations hereunder. The Issuer shall defend the claim and the Indenture
Trustee may have separate counsel and the Issuer shall, or shall cause the
Servicer to, pay the fees and expenses of such counsel. The Issuer need not
reimburse any expense or indemnify against any loss, liability or expense
incurred by the Indenture Trustee through the Indenture Trustee's own willful
misconduct, negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee pursuant to this
Section shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.1(iv), the expenses are intended to constitute expenses of administration
under Title 11 of the United States Code or any other applicable Federal or
State bankruptcy, insolvency or similar law.
The Indenture Trustee agrees not to institute (alone or in conjunction
with any other Person) against the Issuer any bankruptcy, reorganization,
arrangement, insolvency, moratorium or liquidation proceedings or other
proceedings under U.S. federal or State bankruptcy or similar laws on account of
the non-payment to the Indenture Trustee of any amounts provided by this Section
6.7, until after the balance of each Note is reduced to zero and the expiration
of a period equal to the longest applicable preference period under such
bankruptcy laws and other applicable laws plus 366 days following such payment;
provided, that nothing in this paragraph shall preclude, or be deemed to estop,
the Indenture Trustee from taking any action prior to the expiration of the
applicable preference period in any involuntary insolvency proceeding filed or
commenced against the Issuer by a Person other than the Indenture Trustee or to
otherwise limit any claims that the Indenture Trustee may have against the
Issuer. The foregoing shall not limit the ability of the Indenture Trustee to
take any action in accordance with Section 5.2.
SECTION 6.8. Resignation and Removal; Appointment of Successor. No
resignation or removal of the Indenture Trustee and no appointment of a
successor Indenture Trustee shall become effective until the acceptance of
appointment by the successor Indenture Trustee pursuant to this Section. The
Indenture Trustee may resign at any time by so notifying the Issuer in writing.
The Noteholders of not less than 66-2/3% of the Outstanding Principal Balance of
the Notes may remove the Indenture Trustee by so notifying the Indenture Trustee
in writing and may appoint a successor Indenture Trustee. The Issuer shall
remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
54
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
If the Indenture Trustee resigns or is removed by the Issuer or if a
vacancy exists in the office of Indenture Trustee for any reason (the Indenture
Trustee in such event being referred to herein as the retiring Indenture
Trustee), the Issuer shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee shall have all the rights, powers and duties
of the Indenture Trustee under this Indenture. The successor Indenture Trustee
shall mail a notice of its succession to Noteholders. The retiring Indenture
Trustee shall promptly transfer all property held by it as Indenture Trustee to
the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days after
the retiring Indenture Trustee resigns or is removed, the retiring Indenture
Trustee, the Issuer or the Noteholders of not less than a majority of the
Outstanding Principal Balance of the Notes may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any Noteholder
may petition any court of competent jurisdiction for the removal of the
Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to this
Section, the Issuer's obligations under Section 6.7 shall continue for the
benefit of the retiring Indenture Trustee. The retiring Indenture Trustee shall
have no liability for any act or omission by any successor Trustee.
SECTION 6.9. Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee. The Indenture
Trustee shall provide the Rating Agencies and the Issuer prior written notice of
any such transaction; provided, that such corporation or banking association
shall be otherwise qualified and eligible under Section 6.11.
In case at the time such successor(s) by merger, conversion or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor trustee hereunder or in the name of
the successor to the Indenture Trustee; and in all such cases such certificates
of authentication shall have the full force and effect to the same extent given
to the certificate of authentication of the Indenture Trustee anywhere in the
Notes or in this Indenture.
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Indenture, at any time, for the
purpose of meeting any legal
55
requirement of any jurisdiction in which any part of the Collateral may at the
time be located, the Indenture Trustee shall have the power and may execute and
deliver all instruments to appoint one or more Person(s) to act as
co-trustee(s), or separate trustee(s) for the benefit of the Noteholders, and to
vest in such Person(s), in such capacity all rights hereunder with respect to
the Collateral, or any part thereof, and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Indenture Trustee may consider necessary or desirable. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 6.11 and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed
upon and exercised or performed by the Indenture Trustee and such
separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act
separately without the Indenture Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which
any particular act(s) are to be performed, the Indenture Trustee
shall be incompetent or unqualified to perform such act(s), in which
event such rights, powers, duties and obligations (including the
holding of rights with respect to the Collateral or any portion
thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the
direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove, in its sole discretion, any separate
trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the
56
Indenture Trustee, to the extent permitted by law, without the appointment of a
new or successor trustee.
(e) The Indenture Trustee shall have no obligation to determine whether a
co-trustee or separate trustee is legally required in any jurisdiction in which
any part of the Collateral may be located.
SECTION 6.11. Eligibility; Disqualification. The Indenture Trustee shall
at all times satisfy the requirements of TIA Section 310(a) and Section 26(a)(1)
of the Investment Company Act of 1940, as amended. There shall at all times be
an Indenture Trustee hereunder which shall (a) be a corporation organized and
doing business under the laws of the United States of America, any state thereof
or the District of Columbia, authorized under such laws to exercise corporate
trust powers; (b) have a combined capital and surplus of at least $50,000,000 as
set forth in its most recent published annual report of condition; (c) be
subject to supervision or examination by federal or state authority; and (d) at
the time of appointment, shall have a long term senior, unsecured debt rating of
"Baa3" or better by Moody's (or, if not rated by Moody's, a comparable rating by
another statistical rating agency). The Indenture Trustee shall comply with TIA
Section 310(b), including the optional provision permitted by the second
sentence of TIA Section 310(b)(9); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture(s) under
which other securities of the Issuer are outstanding if the requirements for
such exclusion set forth in TIA Section 310(b)(1) are met.
If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Indenture Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
This Indenture shall always have a Trustee who satisfies the requirements
of Section 310(a)(1) of the TIA. The Trustee is subject to the provisions of
Section 310(b) of the TIA regarding disqualification of a trustee upon acquiring
any conflicting interest.
If a default occurs under this Indenture, and the Indenture Trustee is
deemed to have a conflicting interest as a result of acting as trustee for each
of the Class A Notes, the Class B Notes and the Class C Notes, a successor
Indenture Trustee shall be appointed for one or all of such Classes, so that
there will be separate Indenture Trustees for the Class A Notes, the Class B
Notes and the Class C Notes. No such event shall alter the voting rights of the
Class A Noteholders, Class B Noteholders or Class C Noteholders under this
Indenture or any other Related Document. However, so long as any amounts remain
unpaid with respect to the Class A Notes, only the Indenture Trustee for the
Class A Noteholders will have the right to exercise remedies under this
Indenture (but subject to the express provisions of Section 5.2 and to the right
of the Class B Noteholders and Class C Noteholders to receive their share of any
proceeds of enforcement) and thereafter so long as any amounts remain unpaid
with respect to the Class B Notes, only the Indenture Trustee for the Class B
Noteholders will have the right to exercise remedies under the Indenture (but
subject to the right of the Class C Noteholders to receive their share of any
proceeds of enforcement). Upon repayment of the Class A Notes in full, all
rights
57
to exercise remedies under this Indenture will transfer to the Indenture Trustee
for the Class B Notes and, upon payment of the Class B Notes in full, all rights
to exercise remedies under this Indenture will transfer to the Indenture Trustee
for the Class C Notes.
In the case of the appointment hereunder of a successor Indenture Trustee
with respect to any Class of Notes, the Issuer, the retiring Indenture Trustee
and the successor Indenture Trustee with respect to such Class of Notes shall
execute and deliver an indenture supplemental hereto wherein the successor
Indenture Trustee shall accept such appointment and which (i) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, the successor Indenture Trustee all the rights, powers, trusts and
duties of the retiring Indenture Trustee with respect to the Notes of the Class
to which the appointment of such successor Indenture Trustee relates, (ii) if
the retiring Indenture Trustee is not retiring with respect to all Classes of
Notes, shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the retiring
Indenture Trustee with respect to the Notes of each Class as to which the
retiring Indenture Trustee is not retiring shall continue to be vested in the
retiring Indenture Trustee, and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Indenture Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Indenture Trustees co-trustees of the same trust and that each
such Indenture Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any other such
Indenture Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Indenture Trustee shall
become effective to the extent provided therein.
SECTION 6.12. Acceptance by Indenture Trustee. The Indenture Trustee
hereby acknowledges the grant of a Lien on the Collateral and the receipt of a
Lien on the assets constituting the Collateral granted by the Issuer hereunder
and declares that the Indenture Trustee, through a custodian, will hold such
Lien on the Collateral granted by the Issuer in trust, for the use and benefit
of all Noteholders subject to the terms and provisions hereof.
SECTION 6.13. Preferential Collection of Claims Against the Issuer. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 6.14. Reports by Indenture Trustee to Noteholders. To the extent
required by the TIA, within 60 days after each December 20 (beginning in 2005),
following the date of this Indenture, the Indenture Trustee shall mail to the
Noteholders a brief report dated as of such reporting date that complies with
TIA Section 313(a), if such a report is required pursuant to TIA Section 313(a).
The Indenture Trustee also shall comply with TIA Section 313(b). The Indenture
Trustee shall also transmit by mail all reports as required by TIA Section
313(c).
A copy of each such report required under TIA Section 313 shall, at the
time of such transmission to Noteholders be filed with the Commission and with
each stock exchange or other market system on which the Notes are listed. The
Issuer shall notify the Indenture Trustee in writing if the Notes become listed
on any stock exchange or market trading system.
58
SECTION 6.15. Representations and Warranties. The Indenture Trustee hereby
represents that:
(a) the Indenture Trustee is duly organized and validly existing as
a New York banking corporation in good standing under the laws of New York
with power and authority to own its properties and to conduct its business
as such properties are currently owned and such business is presently
conducted;
(b) the Indenture Trustee has the power and authority to execute and
deliver this Indenture and to carry out its terms; and the execution,
delivery and performance of this Indenture have been duly authorized by
the Indenture Trustee by all necessary corporate action;
(c) the consummation of the transactions contemplated by this
Indenture and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under the articles of
incorporation or bylaws of the Indenture Trustee or to the best of the
Indenture Trustee's knowledge, any material agreement or other instrument
to which the Indenture Trustee is a party or by which it is bound; and
(d) to the best of the Indenture Trustee's knowledge, there are no
proceedings or investigations pending or threatened before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Indenture Trustee or its
properties: (i) asserting the invalidity of this Indenture, (ii) seeking
to prevent the consummation of any of the transactions contemplated by
this Indenture or (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Indenture Trustee
of its obligations under, or the validity or enforceability of, this
Indenture.
SECTION 6.16. The Paying Agent. The Issuer hereby appoints the Indenture
Trustee as the initial Paying Agent. All payments of amounts due and payable
with respect to any Notes that are to be made from amounts withdrawn from the
Note Distribution Account pursuant to Section 8.3(b), (c) or (d) or from the
Collection Account pursuant to Section 8.3(a) shall be made on behalf of the
Issuer by the Paying Agent.
The Paying Agent hereby agrees that subject to the provisions of this
Section, it shall:
(i) hold any sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the
Issuer of which it has actual knowledge in the making of any payment
required to be made with respect to the Notes;
59
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to
the Indenture Trustee any sums so held in trust by such Paying
Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee any sums held by it in trust for the payment
of Notes if at any time it ceases to meet the standards required to
be met by a Paying Agent; and
(v) comply with all requirements of the Code and any
applicable State law with respect to the withholding from any
payments made by it on any Notes of any applicable withholding taxes
imposed thereon and with respect to any applicable reporting
requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Order,
direct any Paying Agent to pay to the Indenture Trustee any sums held in trust
by such Paying Agent, such sums to be held by the Indenture Trustee upon the
same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such sums.
Subject to applicable laws with respect to escheat of funds, any amounts
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Note and remaining unclaimed for two years
after such amount has become due and payable shall be discharged from such trust
and be paid to the Issuer on Issuer Request; and the related Noteholder shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust funds shall thereupon cease; provided, however, that the Indenture
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense and direction of the Issuer cause to be published once, in
a newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such funds remain unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such funds then remaining will be repaid to the Issuer. The Indenture
Trustee shall also adopt and employ, at the expense of the Issuer, any other
reasonable means of notification of such repayment (including mailing notice of
such repayment to Noteholders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in amounts due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Noteholder).
Each Paying Agent (other than the initial Paying Agent) shall be appointed
by Issuer Order with written notice thereof to the Indenture Trustee. Any Paying
Agent appointed by the Issuer shall be a Person who would be eligible to be
Indenture Trustee hereunder as provided in Section 6.11. The Issuer shall not
appoint any Paying Agent (other than the Indenture Trustee) which is not, at the
time of such appointment, a depository institution or trust company, including
the Indenture Trustee, that (a) is incorporated under the laws of the United
States of America or any State thereof, (b) is subject to supervision and
examination by federal or state
60
banking authorities and (c) has outstanding unsecured commercial paper or other
short-term unsecured debt obligations that are rated "A-1+" by S&P or "Prime-1"
by Moody's (or its equivalent).
SECTION 6.17. Repayment of Amounts Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all funds then held by any Paying Agent other than the Indenture Trustee under
this Indenture with respect to such Notes shall, upon demand of the Issuer, be
paid to the Indenture Trustee to be held and applied according to Section 4.1,
and thereupon such Paying Agent shall be released from all further liability
with respect to such funds.
SECTION 6.18. Provisions of Swap Agreement. The Issuer has entered into
the Swap Agreement with the Swap Counterparty, in a form satisfactory to the
Rating Agencies. The Issuer may, from time to time, enter into one or more
replacement Swap Agreement in the event that the Swap Agreement is terminated
prior to its scheduled expiration pursuant to a Swap Event of Default or a Swap
Termination Event.
Upon the occurrence of (i) any Swap Event of Default arising from any
action taken, or failure to act, by the Swap Counterparty, or (ii) any Swap
Termination Event (except as described in the following sentence) with respect
to which the Swap Counterparty is an Affected Party (as defined in the Swap
Agreement), the Indenture Trustee may and will, at the direction of the holders
of at least 51% of the Outstanding Principal Balance of the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and
the Class C Notes, acting together as a single Class, direct the Issuer to
designate an Early Termination Date (as defined in the Swap Agreement) with
respect to the Swap Agreement and the Issuer shall upon such direction designate
an Early Termination Date. If a Swap Termination Event occurs as a result of the
insolvency or bankruptcy of the Swap Counterparty, the Indenture Trustee will
direct the Issuer to designate an Early Termination Date and the Issuer shall
upon such direction designate an Early Termination Date pursuant to the Swap
Agreement.
The Swap Counterparty shall not have any voting rights or rights to
exercise any remedies under this Indenture until after the Outstanding Principal
Balance of the Notes has been reduced to zero and the Noteholders have been paid
all mounts owed to them under this Indenture. After the Outstanding Principal
Balance of the Notes has been reduced to zero and the Noteholders have been paid
all amount owed to them under this Indenture, the Swap Counterparty shall have
all of the rights and obligations, including all voting rights, of the
Noteholders set forth in this Indenture. Such voting rights shall be exercisable
at any time by the Swap Counterparty based upon the notional amount outstanding
under the Swap Agreement at such time.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1. Issuer To Furnish Indenture Trustee Names and Addresses of
Noteholders. The Issuer will furnish or cause to be furnished to the Indenture
Trustee: (a) not more than five days after the earlier of: (i) each Record Date
and (ii) three months after the last Record Date, a list, in such form as the
Indenture Trustee may reasonably require, of the names
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and addresses of the Noteholders as of such Record Date, and (b) at such other
times as the Indenture Trustee may request in writing, within 30 days after
receipt by the Issuer of any such request, a list of similar form and content as
of a date not more than 10 days prior to the time such list is furnished;
provided, however, that so long as the Indenture Trustee is the Note Registrar,
no such list shall be required to be furnished.
SECTION 7.2. Preservation of Information; Communications to Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Noteholders contained in the most
recent list furnished to the Indenture Trustee as provided in Section 7.1 and
the names and addresses of Noteholders received by the Indenture Trustee in its
capacity as Note Registrar. The Indenture Trustee may destroy any list furnished
to it as provided in Section 7.1 upon receipt of a new list so furnished.
(b) Three or more Noteholders, or one or more Noteholder(s) evidencing at
least 25% of the Outstanding Principal Balance of the Notes, may communicate
pursuant to TIA Section 312(b) with other Noteholders with respect to their
rights under this Indenture or under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA Section 312(c).
SECTION 7.3. Reports by Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of
the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe)
that the Issuer may be required to file with the Commission pursuant
to Section 13 or 15(d) of the Securities Exchange Act or, if the
Issuer is not required to file with the Commission information,
documents or reports pursuant to either Section 13 or Section 15(d)
of the Securities Exchange Act, then the Issuer will file with the
Indenture Trustee and with the Commission, in accordance with rules
and regulations prescribed by the Commission, such of the
supplementary and period information, documents and reports required
pursuant to securities exchange as may be prescribed in such rules
and regulations;
(ii) file with the Commission, in accordance with the rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this
Indenture (with a copy of any such filings being delivered promptly
to the Indenture Trustee); and supply to the Indenture Trustee (and
the Indenture Trustee shall transmit by mail to all Noteholders
described in TIA Section 313(c)) such summaries of any information,
documents and reports required to be filed by the Issuer pursuant to
clauses (i) and (ii) as may be required by the rules and regulations
prescribed from time to time by the Commission.
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Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on December 31 of each year.
SECTION 7.4. De-Listing of Definitive Notes. If as of the beginning of any
fiscal year for the Issuer (other than fiscal year 2004), the Definitive Notes
are held (directly or, in the case of Book Entry Notes held through the Clearing
Agency) by less than 300 Noteholders and/or Clearing Agency participants having
accounts with the Clearing Agency, the Issuer shall, in accordance with the
Exchange Act and the rules and regulations promulgated thereunder, timely file a
Form 15 with respect to the Issuer suspending all reporting requirements under
the Securities Exchange Act.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1. Collection of Amounts Due. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all sums and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such amounts received by it as provided in this
Indenture. Amounts properly withdrawn by the Issuer pursuant to Section 8.3 of
this Indenture shall be deemed released from the Collateral and the security
interest therein granted to the Indenture Trustee, and the Issuer shall in no
event thereafter be required to refund any such withdrawn amounts. To the extent
there are uninvested amounts deposited in any of the Trust Accounts (as defined
below), the Issuer shall invest all such amounts in Permitted Investments
selected by the Issuer that mature no later than the immediately succeeding
Transfer Date preceding the following Payment Date.
SECTION 8.2. Trust Accounts. (a) On or prior to the Closing Date, the
Issuer covenants to have established and shall thereafter maintain the following
accounts with the Indenture Trustee (the "Trust Accounts"), which accounts shall
be Eligible Deposit Accounts:
(i) Collection Account;
(ii) Note Distribution Account; and
(iii) Reserve Account.
(b) If any Trust Account is a Securities Account, such Trust Account will
be maintained in accordance with the Custody and Control Agreement.
(c) If any Trust Account is a Deposit Account: (i) If, at any time, any
such Trust Account ceases to be an Eligible Deposit Account, the Issuer shall
within 10 Business Days (or such longer period, not to exceed 30 calendar days,
as to which each Rating Agency may consent) establish a new Trust Account as an
Eligible Deposit Account and shall transfer any cash and/or any investments held
in the no-longer Eligible Deposit Account to such new Trust Account; and
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(ii) the Issuer and Indenture Trustee agree, as security for
the Issuer's obligations under this Indenture, that:
(A) any Trust Account Property that constitutes, or is held
through or in, a Deposit Account shall be, or shall be held through
or in, an Eligible Deposit Account continuously identified in the
deposit bank's books and records as subject to a security interest
of the Indenture Trustee and, except as maybe expressly provided
herein to the contrary, in order to perfect the security interest of
the Indenture Trustee in accordance with Section 9.104 of the UCC,
the Indenture Trustee shall have the power to direct disposition of
the funds in such Deposit Account without further consent by the
Issuer; provided, however, that prior to delivery by the Indenture
Trustee to the Issuer of notice otherwise, the Issuer shall have the
right to direct the disposition of funds in such Deposit Account;
provided, further that the Indenture Trustee agrees that it will not
deliver such notice or exercise its power to direct disposition of
the funds in such Deposit Account until an Event of Default has
occurred; and
(B) all Permitted Investments and other investments shall be
held by the Custodian in accordance with the Custody and Control
Agreement and shall be subject to the Indenture Trustee's security
interest in such Trust Property.
SECTION 8.3. Priority of Payments. (a) On each Payment Date prior to an
Event of Default and acceleration of the Notes, after the payment to the
Servicer of any accrued and unpaid Servicing Fees and reimbursement of any
Servicing Advances, from any amounts withdrawn from the Reserve Account on the
related Transfer Date and Available Amounts, payments shall be made in the
following order of priority:
(i) to the Indenture Trustee, amounts payable to the Indenture
Trustee pursuant to Section 6.7 of the Indenture for the related
Collection Period, provided that, except after the occurrence and
during the continuance of an Event of Default, the aggregate amounts
payable other than in respect of fees shall not exceed $75,000
during any calendar year;
(ii) to the Administrator, the Administration Fee and all
unpaid Administration Fees from prior Collection Periods in
accordance with the Administration Agreement;
(iii) to the Swap Counterparty any Swap Payments Outgoing in
accordance with the Swap Agreement;
(iv) to pay with the same priority and ratably in proportion
to the Outstanding Principal Balance of the Class A Notes and the
amount of any Swap Termination Payment due and payable by the Issuer
to the Swap Counterparty:
(1) to the Note Distribution Account, the Monthly
Interest Amount Payable on the Class A Notes; and
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(2) to the Swap Counterparty, any Swap Termination
Payments payable to the Swap Counterparty upon the termination
of the Swap Agreement; provided that if any amounts allocable
to the Class A Notes are not needed to pay interest due on
such Class A Notes as of such Payment Date, such amounts will
be applied to pay the portion, if any, of any Swap Termination
Payment remaining unpaid;
(v) to the Note Distribution Account, the Monthly Interest
Amount Payable on the Class B Notes;
(vi) to the Note Distribution Account, the Monthly Interest
Amount Payable on the Class C Notes;
(vii) to the Note Distribution Account, the Class A Monthly
Principal Payable Amount;
(viii) to the Note Distribution Account, the Class B Monthly
Principal Payable Amount;
(ix) to the Note Distribution Account, any Reallocated
Principal;
(x) to the Note Distribution Account, the Class C Monthly
Principal Payable Amount;
(xi) to the Note Distribution Account, 50% of the Excess
Spread Amount, if any;
(xii) to the Reserve Account, the amount, if any, required to
be deposited in the Reserve Account pursuant to Section 8.4(c);
(xiii) to the Indenture Trustee, any amounts payable to the
Indenture Trustee pursuant to Section 6.7 of the Indenture to the
extent not previously reimbursed; and
(xiv) to the Issuer, the remaining balance, if any.
(b) On each Payment Date prior to an Event of Default and acceleration of
the Notes, funds on deposit in the Note Distribution Account shall be paid in
the following order of priority:
(i) to the Class A-1 Noteholders, Class A-2 Noteholders, Class
A-3 Noteholders, and the Class A-4 Noteholders, an amount equal to
the Monthly Interest Amount Payable in respect of the Class A-1
Notes, Class A-2 Notes, Class A-3 Notes, and Class A-4 Notes for the
Interest Accrual Period immediately preceding such Payment Date,
together with any such amounts that accrued in respect of prior
Interest Accrual Periods for which no payment was previously made;
provided, that if the Available Amounts remaining to be paid
pursuant to this clause are less than the full amount required to be
so paid, such remaining Available Amounts shall be allocable to the
Holders of the Class A-1 Notes, Class
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A-2 Notes, Class A-3 Notes and the Class A-4 Notes pro rata based
upon the aggregate amount of interest due to each class;
(ii) to the Class B Noteholders, the Monthly Interest Amount
Payable in respect of the Class B Notes; provided, that if the
Available Amounts remaining to be paid pursuant to this clause are
less than the full amount required to be so paid, such remaining
Available Amounts shall be paid to the Holders of Class B Notes pro
rata based on their respective entitlement pursuant to this clause;
(iii) to the Class C Noteholders, the Monthly Interest Amount
Payable in respect of the Class C Notes; provided, that if the
Available Amounts remaining to be paid pursuant to this clause are
less than the full amount required to be so paid, such remaining
Available Amounts shall be paid to the Holders of Class C Notes pro
rata based on their respective entitlement pursuant to this clause;
(iv) to the Class A-1 Noteholders, the Class A Monthly
Principal Payable Amount;
(v) except as provided in clause 8.2(c) below, to the Class B
Noteholders, the Class B Monthly Principal Payable Amount; and
(vi) to the Class A-1 Noteholders, the Reallocated Principal
and 50% of the Excess Spread Amount, if any, until the Outstanding
Principal Balance of the Class A-1 Notes has been reduced to zero.
(c) On any Payment Date prior to an Event of Default and acceleration of
the Notes after the Outstanding Principal Balance of the Class A-1 Notes has
been reduced to zero, notwithstanding clauses (iv) through (vi) of Section
8.3(b), payments in respect of principal on the Notes will be paid by
transferring funds on deposit in the Note Distribution Account in the following
order of priority:
(A) To the Class A Noteholders, the Class A Monthly Principal
Payable Amount in the following order of priority:
(i) to the Class A-2 Noteholders, until the Outstanding
Principal Balance of the Class A-2 Notes has been reduced to
zero;
(ii) to the Class A-3 Noteholders, until the Outstanding
Principal Balance of the Class A-3 Notes has been reduced to
zero; and
(iii) to the Class A-4 Noteholders, until the
Outstanding Principal Balance of the Class A-4 Notes has been
reduced to zero;
(B) To the Class B Noteholders, the Class B Monthly Principal
Payable Amount;
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(C) To the Class A Noteholders, any Reallocated Principal, in
the following order of priority:
(i) to the Class A-2 Noteholders until the Outstanding
Principal Balance of the Class A-2 Notes have been reduced to
zero;
(ii) to the Class A-3 Noteholders until the Outstanding
Principal Balance of the Class A-3 Notes have been reduced to
zero; and
(iii) to the Class A-4 Noteholders until the Outstanding
Principal Balance of the Class A-4 Notes has been reduced to
zero;
(D) To the Class C Noteholders, the Class C Monthly Principal
Payable Amount; and
(E) 50% of the Excess Spread Amount, in the following order of
priority:
(i) to the Class A-2 Noteholders until the Outstanding
Principal Balance of the Class A-2 Notes has been reduced to
zero;
(ii) to the Class A-3 Noteholders until the Outstanding
Principal Balance of the Class A-3 Notes has been reduced to
zero;
(iii) to the Class A-4 Noteholders until the Outstanding
Principal Balance of the Class A-4 Notes has been reduced to
zero; and
(iv) to the Class B Noteholders until the Outstanding
Principal Balance of the Class B Notes has been reduced to
zero; and
(v) to the Class C Noteholders until the Outstanding
Principal Balance of the Class C Notes has been reduced to
zero.
(d) Following an Event of Default and acceleration of the Notes, after the
payment to the Servicer of any accrued and unpaid Servicing Fees and
reimbursement of any Servicing Advances, any amounts withdrawn from the Reserve
Account on the related Transfer Date and Available Amounts will be applied in
the following order of priority, at the date or dates fixed by the Indenture
Trustee and, in case of the distribution of the entire amount due on account of
principal or interest, upon presentation of the Notes and surrender thereof:
(i) to pay the Indenture Trustee, for all amounts due
under Section 6.7;
(ii) to pay the Administrator, all accrued and unpaid
Administration Fees;
(iii) to pay the Swap Counterparty any Swap Payments
Outgoing;
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(iv) to pay with the same priority and ratably in
proportion to the Outstanding Principal Balance of the Class A
Notes and the amount of any Swap Termination Payment due and
payable by the Issuer to the Swap Counterparty:
(A) the Monthly Interest Amount Payable on each
class of Class A Notes during the prior Interest Accrual
Period, plus any amount of interest on the Class A Notes
that was not paid when due (and, to the extent permitted
by law, any interest on that unpaid amount); and
(B) any Swap Termination Payments payable to the
Swap Counterparty due under the Swap Agreement; provided
that if any amounts allocable to the Class A Notes are
not needed to pay interest due on such Class A Notes as
of such payment date, such amounts will be applied to
pay the portion, if any, of any Swap Termination Payment
remaining unpaid;
(v) to the Class A Noteholders pro rata in respect of
principal until the Class A Noteholders are paid in full;
(vi) to pay the Monthly Interest Amount Payable on the
Class B Notes during the prior interest period, plus any
amount of interest on the Class B Notes that was not paid when
due (and, to the extent permitted by law, any interest on that
unpaid amount);
(vii) to the Class B Noteholders in respect of principal
until the Class B Noteholders are paid in full;
(viii) to pay the Monthly Interest Amount Payable on the
Class C Notes during the prior interest period, plus any
amount of interest on the Class C Notes that was not paid when
due (and, to the extent permitted by law, any interest on that
unpaid amount);
(ix) to the Class C Noteholders in respect of principal
until the Class C Noteholders are paid in full; and
(x) to the Issuer the remaining balance, if any.
(e) The Indenture Trustee may fix a special record date and special
payment date for any payment to Noteholders pursuant to this Section. At least
15 days before such special record date, the Issuer shall mail to each
Noteholder and the Indenture Trustee a notice that states the special record
date, the special payment date and the amount to be paid.
(f) All Class A Notes issued under this Indenture shall be in all respects
equally and ratably entitled to the benefits hereof without preference, priority
or distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and
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provisions of this Indenture. Payments of principal and interest on the Class A
Notes shall be made in accordance with the priorities set forth in this Section
8.3.
(g) All Class B Notes issued under this Indenture shall be in all respects
equally and ratably entitled to the benefits hereof without preference, priority
or distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Indenture.
Payments of principal and interest on the Class B Notes shall be made pro rata
among all Outstanding Class B Notes, without preference or priority of any kind.
(h) All Class C Notes issued under this Indenture shall be in all respects
equally and ratably entitled to the benefits hereof without preference, priority
or distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Indenture.
Payments of principal and interest on the Class C Notes shall be made pro rata
among all Outstanding Class C Notes, without preference or priority of any kind.
SECTION 8.4. Reserve Account. (a) On each Transfer Date, if the sum of
Available Amounts and other amounts on deposit in the Collection Account is less
than the aggregate amount required to be paid or deposited pursuant to clauses
(i) through (ix) of Section 8.3(a), the Issuer shall withdraw from the Reserve
Account the amount of such deficiency up to the Available Reserve Account Amount
and shall deposit such amount in the Collection Account for application in
accordance with such clauses of Section 8.3(a). On each Transfer Date, if, after
giving effect to the Available Amounts payable and amounts withdrawn from the
Reserve Account pursuant to the preceding sentence and applied pursuant to
Section 8.3, the Outstanding Principal Balance of any Class would exceed zero on
the Maturity Date for such Class, the Issuer shall withdraw from the Reserve
Account the amount of such deficiency up to the Available Reserve Account Amount
and shall deposit such amount in the Collection Account.
(b) On the Final Maturity Date, and on the first Transfer Date following
the occurrence of an Event of Default with respect to the Notes that has
resulted in the acceleration of the Notes, the Issuer shall withdraw from the
Reserve Account the Available Reserve Account Amount and shall apply such amount
in accordance with Section 8.3(d).
(c) If on any Payment Date, after giving effect to all withdrawals from
the Reserve Account on the related Transfer Date, the Available Reserve Account
Amount is less than the Required Reserve Account Amount then in effect,
Available Amounts and other amounts on deposit in the Collection Account shall
be deposited into the Reserve Account pursuant to Section 8.3(a)(xii) up to the
amount of the Reserve Account Deficiency.
(d) On the date on which the Reserve Account has been terminated, after
giving effect to any withdrawal on such date pursuant to Section 8.4(a) or (b)
and making any payments to the Noteholders required pursuant to this Indenture,
all amounts then remaining in the Reserve Account shall be released to the
Issuer.
(e) The Reserve Account will terminate on the earliest to occur of (i) the
date on which the Note Balance has been paid in full and all other amounts
payable to the Noteholders have been paid in full; (ii) the Final Maturity Date;
and (iii) the termination of the Issuer.
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SECTION 8.5. Reports. On each Determination Date, the Issuer shall, or
shall cause the Servicer to, provide to the Indenture Trustee (with a copy to
the Rating Agencies), for the Indenture Trustee to forward to each Noteholder of
record, a statement substantially in the form of Exhibit C setting forth at
least the following information as to each Class of the Notes to the extent
applicable:
(i) the principal amount to be paid on each Class of Notes;
(ii) the interest amount to be paid on each Class of Notes;
(iii) the Pool Balance as of the opening of business on the first
day of the Collection Period in which such Determination Date occurs;
(iv) the aggregate Outstanding Principal Balance and the Note Pool
Factor for each Class of Notes after giving effect to payments allocated
to principal reported under clause (i) above;
(v) the amount of the Servicing Fee paid to the Servicer with
respect to the preceding Collection Period;
(vi) the amount of Servicing Advances with respect to the preceding
Collection Period;
(vii) the amount of the Administration Fee paid to the Administrator
in respect of the preceding Collection Period;
(viii) the aggregate outstanding principal balance of any Loans that
became Liquidated Loans for such Collection Period;
(ix) the portion of the outstanding principal balance written off in
respect of Loans that became Defaulted Loans;
(x) the aggregate Loan Value of Loans that became Defaulted Loans
for such Collection Period;
(xi) the aggregate Purchase Amounts for Loans, if any, that were
repurchased or purchased in such Collection Period;
(xii) the aggregate outstanding principal balance of Loans that
became Delinquent Loans for such Collection Periods;
(xiii) the aggregate amount of Recoveries for such Collection
Period; and
(xiv) the aggregate amount of Liquidation Proceeds for such
Collection Period.
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Each amount set forth pursuant to clauses (i), (ii), (iii), (v) and (vi)
shall be expressed as a dollar amount per $1,000 of original principal balance
of such Note.
In addition, the Issuer shall, or shall cause, a copy of (i) the
Servicer's certificate referred to in Section 2.7, (ii) the Officer's
Certificate referred to in Section 2.8(a) or 2.8(b) and (iii) the report of
certified public accountants referred to in Section 2.9, in each case, of the
Servicing Agreement to be sent to the Rating Agencies and the Indenture Trustee.
A copy of such Servicer's certificate, such Officer's Certificate and such
report may be obtained by any Noteholder by a request in writing to the Issuer
addressed to the Corporate Trust Office.
SECTION 8.6. General Provisions Regarding Accounts. (a) Funds on deposit
in the Trust Accounts shall be invested or reinvested by the Issuer in Permitted
Investments selected by the Issuer. All Investment Earnings on funds on deposit
in the Trust Accounts shall be deemed to constitute a portion of the Available
Amounts. Other than as permitted by the Rating Agencies, funds on deposit in the
Trust Accounts shall be invested in Permitted Investments that will mature so
that such funds will be available at the close of business on the Transfer Date
preceding the following Payment Date; provided, however, that funds on deposit
in Trust Accounts may be invested in Permitted Investments of the entity serving
as Indenture Trustee that may mature so that such funds will be available on the
date prior to the Payment Date. Funds deposited in a Trust Account on the
Transfer Date that precedes a Payment Date upon the maturity of any Permitted
Investments are not required to be invested overnight.
(b) The Issuer shall ensure that, in connection with any investment of any
funds or any sale of any investment held in any of the Trust Accounts, the Lien
granted to the Indenture Trustee and perfected in such Trust Account will
continue to be perfected in such investment or the proceeds of such sale, in
either case without any further action by any Person, and, in connection with
any direction to the Indenture Trustee to make any such investment or sale, if
requested by the Indenture Trustee, the Issuer shall deliver or cause to be
delivered to the Indenture Trustee an Opinion of Counsel to such effect.
(c) The Indenture Trustee shall not in any way be held liable by reason of
any insufficiency in any of the Trust Accounts resulting from any loss on any
Permitted Investment included therein, except for losses attributable to the
Indenture Trustee's failure to make payments on such Permitted Investments
issued by the Indenture Trustee, in its commercial capacity as principal obligor
and not as trustee, in accordance with their terms. The Indenture Trustee shall
have no liability in respect of losses incurred as a result of the liquidation
of any Permitted Investment prior to its stated maturity.
(d) (i) If a Default or Event of Default shall have occurred and be
continuing with respect to the Notes but the Notes shall not have been declared
due and payable pursuant to Section 5.2, or, (ii) if the Notes shall have been
declared due and payable following an Event of Default, but amounts collected or
receivable from the Collateral are being applied in accordance with Section
8.3(d) as if there had not been such a declaration; then the Issuer shall, to
the fullest extent practicable, invest and reinvest funds in the Trust Accounts
in the Permitted Investments identified in clause (d) of the definition of
Permitted Investments.
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SECTION 8.7. Release of Collateral. (a) Subject to the payment of its fees
and expenses pursuant to Section 6.7, the Indenture Trustee may, and when
required by this Indenture shall, execute instruments to release property from
the Lien of this Indenture, or convey the Indenture Trustee's interest in the
same, in a manner and under circumstances that are not inconsistent with this
Indenture. No party relying upon an instrument executed by the Indenture Trustee
as provided in this Article shall be bound to ascertain the Indenture Trustee's
authority, inquire into the satisfaction of any conditions precedent or see to
the application of any funds.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due to the Indenture Trustee pursuant to Section 6.7
have been paid, release any remaining portion of the Collateral that secured the
Notes and the Swap Agreement from the Lien of this Indenture.
(c) The Indenture Trustee shall release property from the Lien of this
Indenture pursuant to this Section only upon receipt of an Issuer Request
requesting such release accompanied by an Officers' Certificate, an Opinion of
Counsel and (if required by the TIA) Independent Certificates in accordance with
TIA Sections 314(c) and 314(d)(1) meeting the applicable requirements of Section
11.1.
SECTION 8.8. Opinion of Counsel. The Indenture Trustee shall receive at
least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.7(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require, as a condition to such action, an
Opinion of Counsel stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
will not materially and adversely impair the security for the Notes or the
rights of the Noteholders in contravention of this Indenture; provided, however,
that such Opinion of Counsel shall not be required to express an opinion as to
the fair value of the Collateral. Counsel rendering any such opinion may rely,
without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Indenture Trustee in connection
with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Noteholders and
Swap Counterparty. Without the consent of the Noteholders and the Swap
Counterparty but with prior written notice to the Rating Agencies, the Issuer
and the Indenture Trustee, when authorized by an Issuer Order, at any time and
from time to time, may enter into one or more indentures supplemental hereto
(which shall conform to the TIA as in force at the date of the execution
thereof), in form satisfactory to the Indenture Trustee, for any of the
following purposes:
(a) to correct or amplify the description of any property at any time
subject to the Lien of this Indenture, or better to assure, convey and confirm
unto the Indenture Trustee a Lien on any property subject or required to be
subjected to the Lien of this Indenture, or to subject to the Lien of this
Indenture additional property;
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(b) to evidence the succession, in compliance with the applicable
provisions hereof, of another Person to the Issuer, and the assumption by any
such successor of the covenants of the Issuer herein and in the Notes;
(c) to add to the covenants of the Issuer, for the benefit of the
Noteholders and the Swap Counterparty, or to surrender any right or power herein
conferred upon the Issuer;
(d) to mortgage or pledge any property to or with the Indenture Trustee;
(e) to cure any ambiguity, to correct or supplement any provision herein
or in any supplemental indenture that may be inconsistent with any other
provision herein or in any supplemental indenture or to make any other
provisions with respect to matters or questions arising under this Indenture or
in any supplemental indenture; provided, that such action shall not materially
adversely affect the interests of the Noteholders or the Swap Counterparty;
(f) to evidence and provide for the acceptance of the appointment
hereunder by a successor or additional trustee with respect to the Notes or any
class thereof and to add to or change any of the provisions of this Indenture as
shall be necessary to facilitate the administration of the trusts hereunder by
more than one trustee, pursuant to the requirements of Article VI; or
(g) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect the qualification of this Indenture
under the TIA or under any similar Federal statute hereafter enacted and to add
to this Indenture such other provisions as may be expressly required by the TIA.
The Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
SECTION 9.2. Supplemental Indentures With Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, may, with
prior written notice to the Rating Agencies and with the consent of the
Noteholders evidencing not less than a majority of the Outstanding Principal
Balance of the Notes, by Act of such Noteholders delivered to the Issuer and the
Indenture Trustee, enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Noteholders under this Indenture; provided, however, that no such
supplemental indenture shall, as evidenced by an Officer's Certificate of the
Issuer delivered to the Indenture Trustee, adversely affect in any material
respect the interests of the Swap Counterparty, without the consent of the Swap
Counterparty; and, provided further, that no such supplemental indenture shall,
as evidenced by an Officer's Certificate of the Issuer delivered to the
Indenture Trustee, adversely affect in any material respect the interests of a
Noteholder, without the consent of such Noteholder affected thereby:
(a) change the date of payment of any installment of principal of or
interest on any Note, or reduce the principal amount thereof, the interest rate
thereon or the Redemption Price with respect thereto, change the provisions of
this Indenture relating to the application of
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collections on, or the proceeds of the sale of, the Collateral to the payment of
principal of or interest on the Notes, or change any place of payment where, or
the coin or currency in which, any Note or the interest thereon is payable, or
impair the right to institute suit for the enforcement of the provisions of this
Indenture requiring the application of funds available therefor, as provided in
Article V, to the payment of any such amount due on or after the respective due
dates thereof (or, in the case of redemption, on or after the Redemption Date);
(b) reduce the percentage of the Outstanding Principal Balance, the
consent of the Noteholders of which is required for any such supplemental
indenture, or the consent of the Noteholders of which is required for any waiver
of compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture;
(c) modify or alter the provisions of the proviso to the definition of
"Outstanding";
(d) reduce the percentage of the Outstanding Principal Balance required to
direct the Indenture Trustee to direct the Issuer to sell or liquidate the
Collateral pursuant to Section 5.2;
(e) modify any provision of this Section except to increase any percentage
specified herein or to provide that certain additional provisions of this
Indenture or the Related Documents cannot be modified or waived without the
consent of the Noteholder of each Outstanding Note affected thereby;
(f) modify any of the provisions of this Indenture in such manner as to
affect the calculation of the amount of any payment of interest or principal due
on any Note on any Payment Date (including the calculation of any of the
individual components of such calculation) or to affect the rights of the
Noteholders to the benefit of any provisions for the mandatory redemption of the
Notes contained herein; or
(g) permit the creation of any Lien ranking prior to or on a parity with
the Lien of this Indenture with respect to any part of the Collateral or, except
as otherwise permitted or contemplated herein, terminate the Lien of this
Indenture on any property at any time subject hereto or deprive any Noteholder
of the security provided by the Lien of this Indenture.
It shall not be necessary for any Act of the Noteholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof. The
manner of obtaining such consents (and any other consents of Noteholders
provided for in this Indenture or in any other Related Document) and of
evidencing the authorization of the execution thereof by Noteholders shall be
subject to such reasonable requirements as the Indenture Trustee may provide.
Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section, the Indenture Trustee shall
mail to the Noteholders to which such amendment or supplemental indenture
relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
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SECTION 9.3. Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and,
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith with respect
to the Notes and the Swap Agreement affected thereby, and the respective rights,
limitations of rights, obligations, duties, liabilities and immunities under
this Indenture of the Indenture Trustee, the Issuer, the Swap Counterparty and
the Noteholders shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 9.5. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
SECTION 9.6. Conformity with Trust Indenture Act. Every amendment of this
Indenture and every supplemental indenture executed pursuant to this Article IX
shall conform to the requirements of the TIA as then in effect so long as this
Indenture shall then be qualified under the TIA.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1. Redemption. The Notes are subject to redemption in whole,
but not in part, on or after any Payment Date on which the aggregate Pool
Balance (calculated as of the end of the related Collection Period) first
becomes less than 10% of the Pool Balance as of the Cut-off Date and for a
purchase price equal to the Redemption Price; provided, however, that the Issuer
has available funds sufficient to pay the Redemption Price following the
exercise by the Purchaser of the clean up call set forth in Section 6.1 of the
Purchase and Sale Agreement. The Issuer shall furnish the Rating Agencies notice
of such redemption. If such Notes are to be redeemed pursuant to this Section,
the Issuer shall furnish notice of such election to the Indenture Trustee not
later than 25 days prior to the Redemption Date and the Issuer shall deposit in
the Note Distribution Account the Redemption Price of the Notes to be redeemed.
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SECTION 10.2. Form of Redemption Notice. Notice of redemption under
Section 10.1 shall be given by the Issuer by first-class mail, postage prepaid,
mailed not less than five days prior to the applicable Redemption Date to each
Noteholder, as of the close of business on the Record Date preceding the
applicable Redemption Date, at such Noteholder's address appearing in the Note
Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where such Notes are to be surrendered for
payment of the Redemption Price (which shall be the office or agency
of the Issuer to be maintained as provided in Section 3.2); and
(iv) the CUSIP numbers of the Notes being redeemed.
Failure to give notice of redemption, or any defect therein, to any
Noteholder shall not impair or affect the validity of the redemption of any
other Note.
SECTION 10.3. Notes Payable on Redemption Date. The Notes or portions
thereof to be redeemed shall, following notice of redemption pursuant to this
Article, become due and payable on the Redemption Date at the Redemption Price
and (unless the Issuer shall default in the payment of the Redemption Price) no
interest shall accrue on the Redemption Price for any period after the date to
which accrued interest is calculated for purposes of calculating the Redemption
Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Compliance Certificates and Opinions, etc. (a) Upon any
written application or request (or oral application with prompt written or
telecopied confirmation) by the Issuer to the Indenture Trustee to take any
action under this Indenture, other than any request that (i) the Indenture
Trustee authenticate the Notes specified in such request, or (ii) the Indenture
Trustee pay amounts due and payable to the Issuer hereunder to the Issuer's
assignee specified in such request, the Issuer shall furnish to the Indenture
Trustee: (1) an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with, (2) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with and (3)
(if required by the TIA) an Independent Certificate from a firm of certified
public accountants meeting the applicable requirements of this Section, except
that, in the case of any such application or request as to which the furnishing
of such documents is specifically required by this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
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(w) a statement that each signatory of such certificate or opinion
has read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(x) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(y) a statement that, in the opinion of each such signatory, such
signatory has made (or has caused to be made) such examination or
investigation as is necessary to enable such signatory to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(z) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the Lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officers'
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such deposit) to the Issuer
of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officers' Certificate described in clause (i),
the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters if the fair value to
the Issuer of the Collateral or other property or securities to be
so deposited and of all other such Collateral or other property or
securities released from the Lien of this Indenture since the
commencement of the then-current fiscal year of the Issuer, as set
forth in the certificates required by clause (i) and this clause
(ii), equals 10% or more of the Outstanding Principal Balance of the
Notes, but such certificate need not be furnished with respect to
any Collateral or other property or securities so deposited if the
fair value thereof to the Issuer as set forth in the related
Officers' Certificate is less than $1,000,000 or less than one
percent of the then Outstanding Principal Balance of the Notes.
(iii) Other than with respect to property as contemplated by
clause (v), whenever any Collateral or other property or securities
are to be released from the Lien of this Indenture, the Issuer shall
also furnish to the Indenture Trustee an Officers' Certificate
certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such release) of
the Collateral or other property or securities proposed to be
released and stating that in the opinion of such person the proposed
release will not impair the security under this Indenture in
contravention of the provisions hereof.
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(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officers' Certificate described in clause
(iii), the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters if the fair value to
the Issuer of the Collateral or other property or securities and of
all other such Collateral or other property, other than property as
contemplated by clause (v), or securities released from the Lien of
this Indenture since the commencement of the then-current fiscal
year of the Issuer, as set forth in the certificates required by
clause (iii) and this clause (iv), equals 10% or more of the
Outstanding Principal Balance of the Notes, but such certificate
need not be furnished in the case of any release of Collateral or
other property or securities if the fair value thereof to the Issuer
as set forth in the related Officers' Certificate is less than
$1,000,000 or less than one percent of the then Outstanding
Principal Balance of the Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section, the Issuer may, without compliance with the requirements of
the other provisions of this Section: (A) collect, liquidate, sell
or otherwise dispose of Loans and Equipment as and to the extent
permitted or required by the Related Documents and (B) make cash
payments out of the Trust Accounts as and to the extent permitted or
required by the Related Documents so long as the Issuer shall
deliver to the Indenture Trustee every six months, commencing March
15, 2005, an Officers' Certificate of the Issuer stating that all
such dispositions of Collateral that occurred since the execution of
the previous such Officers' Certificate (or for the first such
Officers' Certificate, since the Closing Date) were in the ordinary
course of the Issuer's business and that the proceeds thereof were
applied in accordance with the Related Documents.
SECTION 11.2. Form of Documents Delivered to Indenture Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate, opinion or representations
with respect to the matters upon which his certificate or opinion is based
is/are erroneous. Any such certificate of an Authorized Officer or Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of any
Seller, the Servicer, the Purchaser, the Issuer or the Administrator, Managing
Member, stating that the information with respect to such factual matters is in
the possession of any Seller, the Servicer, the Purchaser, the Issuer or the
Administrator, Managing Member, as applicable, unless such Authorized Officer or
counsel knows, or in the exercise of reasonable care should know, that the
certificate, opinion or representations with respect to such matters is/are
erroneous. Any Opinion of Counsel may be
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based on the written opinion of other counsel, in which event such Opinion of
Counsel shall be accompanied by a copy of such other counsel's opinion and shall
include a statement to the effect that such counsel believes that such counsel
and the Indenture Trustee may reasonably rely upon the opinion of such other
counsel.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Where any Person is required or permitted to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever in this Indenture, in connection with any application,
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
SECTION 11.3. Acts of Noteholders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Noteholders may be embodied in and evidenced by one or more
instrument(s) of substantially similar tenor signed by such Noteholders in
person or by agents duly appointed in writing; and except as herein otherwise
expressly provided, such action shall become effective when such instrument(s)
are delivered to the Indenture Trustee, and, where it is hereby expressly
required, to the Issuer. Such instrument(s) (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument(s). Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1) conclusive in favor of
the Indenture Trustee and the Issuer, if made in the manner provided in this
Section. At any time the Notes of any Class are maintained on Book-Entry Notes,
any reference in this Indenture to an Act of Noteholders or a Noteholder or
Noteholders representing a specified portion of the Outstanding Principal
Balance of the Notes or such Class of Notes shall be deemed to refer to an Act
of Note Owners or a Note Owner or Note Owners holding such specified portion of
the Outstanding Principal Balance of the Notes or Class, as the case may be.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person
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executing the same, may also be proved in any other manner which the Indenture
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or Act by the Noteholder shall bind every Noteholder issued upon the
registration of the related Note, in exchange therefor or in lieu thereof, in
respect of anything done, omitted or suffered to be done by the Indenture
Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.
(e) By accepting the Notes issued pursuant to this Indenture, each
Noteholder irrevocably appoints the Indenture Trustee hereunder as the special
attorney-in-fact for such Noteholder vested with full power on behalf of such
Noteholder to effect and enforce the rights of such Noteholder and the revisions
pursuant hereto for the benefit of such Noteholder; provided that nothing
contained in this Section shall be deemed to confer upon the Indenture Trustee
any duty or power to vote on behalf of the Noteholders with respect to any
matter on which the Noteholders have a right to vote pursuant to the terms of
this Indenture.
SECTION 11.4. Notices, etc., to the Indenture Trustee, Issuer and Rating
Agencies. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders, or other documents provided or permitted by this
Indenture, shall be in writing and, if such request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders is to be made upon,
given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer, shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate Trust Office, or
(b) the Issuer by the Indenture Trustee or by any Noteholder, shall be
sufficient for every purpose hereunder if in writing and mailed, first-class,
postage prepaid, to the Issuer addressed to: GE Commercial Equipment Financing
LLC, Series 2004-1, in care of General Electric Capital Corporation, 44 Old
Ridgebury Road, Danbury, CT 06810, Attention: Capital Markets Operations, and to
General Electric Capital Corporation, as Administrator, 44 Old Ridgebury Road,
Danbury, CT 06810, Attention: General Counsel, or at any other address
previously furnished in writing to the Indenture Trustee by the Issuer or the
Administrator. The Issuer shall promptly transmit any notice received by it from
the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Trustee shall be in writing, personally delivered or
mailed by certified mail, return receipt requested, to their respective
addresses set forth in Section 8.1 of the Servicing Agreement.
SECTION 11.5. Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event or the mailing of any report to
Noteholders, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class, postage prepaid or
certified mail return receipt requested, or sent by private courier or confirmed
telecopy to each Noteholder affected by such event or to whom such report is
required
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to be mailed, at its address as it appears on the Note Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice or the mailing of such report. In any case where notice or
report to Noteholders is given by mail, neither the failure to mail such notice
or report nor any defect in any notice or report so mailed to any particular
Noteholder shall affect the sufficiency of such notice or report with respect to
other Noteholders, and any notice that is mailed in the manner herein provided
shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by any Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Noteholders shall be filed with the Indenture Trustee but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to mail or send notice to
Noteholders, in accordance with Section 11.5, of any event or any report to
Noteholders when such notice or report is required to be delivered pursuant to
any provision of this Indenture, then such notification or delivery as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
Where this Indenture provides for notice to the Rating Agencies, failure
to give such notice shall not affect any other rights or obligations created
hereunder, and shall not under any circumstance constitute a Default or Event of
Default.
SECTION 11.6. Alternate Payment and Notice Provisions. Notwithstanding any
provision of this Indenture or any of the Notes to the contrary, the Issuer may
enter into any agreement with any Noteholder providing for a method of payment,
or notice by the Indenture Trustee or any Paying Agent to such Noteholder, that
is different from the methods provided for in this Indenture or the Notes for
such payments or notices. The Issuer will furnish to the Indenture Trustee a
copy of each such agreement and the Indenture Trustee will cause payments to be
made and notices to be given in accordance with such agreements.
SECTION 11.7. Successors and Assigns. All covenants and agreements in this
Indenture and the Notes by the Issuer shall bind its successors and assigns,
whether so expressed or not. All agreements of the Indenture Trustee in this
Indenture shall bind its successors, co-trustees and agents of the Indenture
Trustee, whether so expressed or not.
SECTION 11.8. Severability. Any provision of this Indenture or the Notes
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or of the
Notes, as applicable, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 11.9. Benefits of Indenture. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the Noteholders, the Swap Counterparty,
any other party secured hereunder and any other Person
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with an ownership interest in any part of the Collateral, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 11.10. Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next Business Day with the same force and effect as if
made on the date on which nominally due, and no interest shall accrue for the
period from and after any such nominal date.
SECTION 11.11. Governing Law. (a) THIS AGREEMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401(1) OF THE GENERAL OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER
CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES
OF AMERICA. THIS INDENTURE IS SUBJECT TO THE TRUST INDENTURE ACT OF 1939, AS
AMENDED, AND SHALL BE GOVERNED THEREBY AND CONSTRUED IN ACCORDANCE THEREWITH.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL
COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF
MANHATTAN IN NEW YORK CITY; PROVIDED, FURTHER, THAT NOTHING IN THIS AGREEMENT
SHALL BE DEEMED OR OPERATE TO PRECLUDE THE LENDER FROM BRINGING SUIT OR TAKING
OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE BORROWER
COLLATERAL OR ANY OTHER SECURITY FOR THE BORROWER SECURED OBLIGATIONS, OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE LENDER. EACH PARTY
HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY
OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH
PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION
11.4 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH
PARTY'S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES
MAIL, PROPER
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POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY
HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 11.12. Counterparts. This Indenture may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.13. Recording of Indenture. If this Indenture is subject to
recording in any public recording offices, such recording is to be effected by
the Issuer and, at its expense, accompanied by an Opinion of Counsel (which may
be counsel to the Indenture Trustee or any other counsel reasonably acceptable
to the Indenture Trustee) to the effect that such recording is necessary either
for the protection of the Noteholders or any other Person secured hereunder or
for the enforcement of any right or remedy granted to the Indenture Trustee
under this Indenture.
SECTION 11.14. Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Swap
Counterparty, Managing Member or the Indenture Trustee on the Notes, the Swap
Agreement, or under this Indenture or any certificate or other writing delivered
in connection herewith or therewith, against: (i) the Indenture Trustee or
Managing Member in their individual capacities, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, officer,
director, employee or agent of: (a) the Indenture Trustee or Managing Member in
their individual capacities, (b) any owner of a beneficial interest in the
Issuer, Managing Member or the Indenture Trustee or (c) of any successor or
assign of the Indenture Trustee or Managing Member in their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and Managing Member have no such
obligations in their individual capacities) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
SECTION 11.15. Communication by Noteholders with Other Noteholders.
Noteholders may communicate, pursuant to TIA Section 312(b), with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Issuer, the Indenture Trustee, the Note Registrar
83
and all other parties shall be entitled to rely on and shall have the protection
of TIA Section 312(c).
SECTION 11.16. Inspection. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested for the purpose of
reviewing or evaluating the financial condition or affairs of the Issuer or the
performance or compliance with the covenants and undertakings of the Issuer
under this Indenture, the Purchase and Sale Agreement or any of the other
documents referred to herein or therein. The Indenture Trustee shall and shall
cause its representatives to hold in confidence all such information; provided,
however, that the foregoing shall not be construed to prohibit: (i) disclosure
of any and all information that is or becomes publicly known, or information
obtained by the Indenture Trustee from sources other than the Issuer or its
agents, (ii) disclosure of any and all information: (A) if required to do so by
any applicable statute, law, rule or regulation, (B) to any government agency or
regulatory or self-regulatory body having or claiming authority to regulate or
oversee any aspects of the Indenture Trustee's business or that of its
Affiliates, (C) pursuant to any subpoena, civil investigative demand or similar
demand or request of any court, regulatory authority, arbitrator or arbitration
to which the Indenture Trustee or an Affiliate or any officer, director,
employee or shareholder thereof is subject, (D) in any preliminary or final
offering circular or prospectus, registration statement or contract or other
document pertaining to the transactions contemplated by this Indenture and
approved in advance by the Issuer or (E) to any Affiliate, independent or
internal auditor, agent, employee or attorney of the Indenture Trustee having a
need to know the same; provided, that the Indenture Trustee advises such
recipient of the confidential nature of the information being disclosed and such
recipient agrees to keep such information confidential, (iii) any other
disclosure authorized by the Issuer or (iv) disclosure to the other parties to
the transactions contemplated by the Related Documents.
SECTION 11.17. Agents of Issuer. The Indenture Trustee hereby acknowledges
that it has been advised that any agent of the Issuer may act on behalf of the
Issuer hereunder for purposes of all consents, amendments, waivers and other
actions permitted or required to be taken, delivered or performed by the Issuer,
and the Indenture Trustee agrees that any such action taken by an agent on
behalf of the Issuer shall satisfy the Issuer's obligations hereunder.
SECTION 11.18. Survival of Representations and Warranties. The
representations, warranties and certificate of the Issuer made in this Indenture
or in any certificate or other writing delivered by the Issuer pursuant hereto
shall survive the authentication and delivery of the Notes hereunder.
SECTION 11.19. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by the TIA, such required provision shall control.
84
The provisions of TIA Sections 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.20. Subordination. The Issuer and each Noteholder by accepting
a Note acknowledge and agree that such Note represents indebtedness of the
Issuer and does not represent an interest in any assets (other than the
Collateral) of the Purchaser (including by virtue of any deficiency claim in
respect of obligations not paid or otherwise satisfied from the Collateral and
proceeds thereof). In furtherance of and not in derogation of the foregoing, to
the extent the Purchaser enters into other securitization transactions, the
Issuer as well as each Noteholder by accepting a Note acknowledge and agree that
it shall have no right, title or interest in or to any assets (or interests
therein) (other than the Collateral) conveyed or purported to be conveyed by the
Purchaser to another securitization vehicle or other Person or Persons in
connection therewith (whether by way of a sale, capital contribution or by
virtue of the granting of a lien) ("Other Assets"). To the extent that,
notwithstanding the agreements and provisions contained in the preceding
sentences of this subsection, the Issuer or any Noteholder either (i) asserts an
interest or claim to, or benefit from, Other Assets, whether asserted against or
through the Purchaser or any other Person owned by the Purchaser, or (ii) is
deemed to have any such interest, claim or benefit in or from Other Assets,
whether by operation of law, legal process, pursuant to applicable provisions of
insolvency laws or otherwise (including by virtue of Section 1111(b) of the
Federal Bankruptcy Code or any successor provision having similar effect under
the Bankruptcy Code), and whether deemed asserted against or through the
Purchaser or any other Person owned by the Purchaser, then the Issuer and each
Noteholder by accepting a Note further acknowledges and agrees that any such
interest, claim or benefit in or from Other Assets is and shall be expressly
subordinated to the indefeasible payment in full of all obligations and
liabilities of the Purchaser which, under the terms of the relevant documents
relating to the securitization of such Other Assets, are entitled to be paid
from, entitled to the benefits of, or otherwise secured by such Other Assets
(whether or not any such entitlement or security interest is legally perfected
or otherwise entitled to a priority of distribution or application under
applicable law, including insolvency laws, and whether asserted against the
Purchaser or any other Person owned by the Purchaser), including, the payment of
post-petition interest on such other obligations and liabilities. This
subordination agreement shall be deemed a subordination agreement within the
meaning of Section 510(a) of the Bankruptcy Code. Each Noteholder further
acknowledges and agrees that no adequate remedy at law exists for a breach of
this Section 11.20 and the terms of this Section 11.20 may be enforced by an
action for specific performance.
85
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers duly authorized as of the day and
year first above written.
GE COMMERCIAL EQUIPMENT FINANCING
LLC, SERIES 2004-1
BY: CEF EQUIPMENT HOLDING, L.L.C.,
its Managing Member
to Indenture
FORM OF CLASS A [ ] NOTES
REGISTERED $______________(1)
No. R-___ CUSIP NO. __________________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES 2004-1
[___]% CLASS A [____] NOTES
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES 2004-1, a limited liability
company duly organized and existing under the laws of the State of Delaware
(including any successor, the "Issuer"), for value received, hereby promises to
pay to CEDE & CO., or registered assigns, the principal sum of
_________________________ DOLLARS ($___________), payable as set forth in the
Indenture; provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the [___________] Payment Date
and the Redemption Date, if any, pursuant to Section 10.1 of the Indenture. The
Issuer will pay interest on this Note at the rate per annum shown above, on each
Payment Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Payment Date (after giving effect to all payments of principal made on the
preceding Payment Date), subject to certain limitations contained in Section 3.1
of the Indenture. Interest on this Note will accrue for each Payment Date from
the most recent Payment Date on which interest has been paid to but excluding
the then current Payment Date or, if no interest has yet been paid, from the
date hereof. Interest will be computed on the basis of the actual number of days
in the Interest Accrual Period and a 360 day
(1) Denominations of $[____] and in greater whole-dollar denominations in
excess thereof.
A-1-1
year. Such principal of and interest on this Note shall be paid in the manner
specified in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: [____________]
GE COMMERCIAL EQUIPMENT FINANCING
LLC, SERIES 2004-1
By: CEF Equipment Holding, L.L.C.
its Managing Member
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its [____]% Class A [____] Notes (herein called the "Class A
[____] Notes" or the "Notes"), all issued under an Indenture dated as of
[____________] (such Indenture, as supplemented or amended, is herein called the
"Indenture"), between the Issuer and [___________________], not in its
individual capacity but solely as trustee (the "Indenture Trustee", which term
includes any successor Indenture Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture. All terms used in this Note that are not otherwise defined herein and
that are defined in this Indenture shall have the meanings assigned to them in
or pursuant to this Indenture.
The Class A Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in this Indenture.
The Issuer shall pay interest on overdue installments of interest at the
Class A Interest Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against: (i)
the Indenture Trustee or the Managing Member in their individual capacities,
(ii) any owner of a beneficial interest in the Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of: (a) the Indenture
Trustee or the Managing Member in their individual capacities, (b) any holder of
a beneficial interest in the Issuer, the Managing Member or the Indenture
Trustee or of (c) any successor or assign of the Indenture Trustee or the
Managing Member in their individual capacities, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, will be deemed to represent
that either (i) it is not (a) an employee benefit plan (as defined in Section
3(3) of ERISA) or (b) a plan (as defined in Section 4975(e)(1) of the Code) that
is subject to Section 4975 of the Code (each of the foregoing, a "Benefit
Plan"), and is not acting on behalf or investing the plan assets of a Benefit
Plan, or (ii) its acquisition and continued holding of the Note will not give
rise to a nonexempt prohibited transaction under ERISA, Section 4975 of the
Code, or any substantially similar applicable law.
It is the intent of the Issuer, the Servicer, the Noteholders and the Note
Owners that, for purposes of Federal and State income tax and any other tax
measured in whole or in part by income, the Notes will qualify as indebtedness
of the Issuer. Each Noteholder or Note Owner, by acceptance of a Note, or, in
the case of a Note Owner, a beneficial interest in a Note, agrees to
A-1-4
treat, and to take no action inconsistent with the treatment of, the Notes for
such tax purposes as indebtedness of the Issuer.
This Note and the Indenture and the obligations arising hereunder and
thereunder shall in all respects, including all matters of construction,
validity and performance, be governed by, and construed and enforced in
accordance with, the internal laws of the State of New York (including Section
5-1401(1) of the General Obligations Law, but without regard to any other
conflict of laws provisions thereof) and any applicable laws of the United
States of America.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Related Documents, neither [___________________], in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purposes of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Noteholder by the acceptance
hereof, and each Note Owner by the acceptance of a beneficial interest herein,
each agrees that, except as expressly provided in the Related Documents, in the
case of an Event of Default under the Indenture, the Noteholder and Note Owner
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
A-1-5
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto __________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in STAMP or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
*/ NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular without alteration, enlargement or any change whatsoever.
A-1-6
EXHIBIT A-2
to Indenture
FORM OF CLASS B NOTES
REGISTERED $____________(2)
No. R-___ CUSIP NO. __________________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES 2004-1
[___]% CLASS B NOTES
GE COMMERCIAL EQUIPMENT FINANCING LLC, Series 2004-1, a limited liability
company duly organized and existing under the laws of the State of Delaware
(including any successor, the "Issuer"), for value received, hereby promises to
pay to CEDE & CO., or registered assigns, the principal sum of ________________
DOLLARS ($___________), payable as set forth in the Indenture; provided,
however, that the entire unpaid principal amount of this Note shall be due and
payable on the earlier of the [____________] Payment Date and the Redemption
Date, if any, pursuant to Section 10.1 of the Indenture. The Issuer will pay
interest on this Note at the rate per annum shown above, on each Payment Date
until the principal of this Note is paid or made available for payment, on the
principal amount of this Note outstanding on the preceding Payment Date (after
giving effect to all payments of principal made on the preceding Payment Date),
subject to certain limitations contained in Section 3.1 of the Indenture.
Interest on this Note will accrue for each Payment Date from the most recent
Payment Date on which interest has been paid to but excluding the then current
Payment Date or, if no interest has yet been paid, from the date hereof.
Interest will be
(2) Denominations of $[_____] and in greater whole-dollar denominations in
excess thereof.
A-2-1
computed on the basis of the actual number of days in the Interest Accrual
Period and a 360 day year. Such principal of and interest on this Note shall be
paid in the manner specified in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: [____________]
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES
2004-1
By: CEF Equipment Holding, L.L.C.
its Managing Member
By:
Name:
Title:
A-2-2
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: [____________]
[___________________], not in its individual
capacity but solely as Indenture Trustee
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its [___]% Class B Notes (herein called the "B Notes" or the
"Notes"), all issued under an Indenture dated as of [____________] (such
Indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and [___________________], not in its individual capacity but
solely as trustee (the "Indenture Trustee", which term includes any successor
Indenture Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are not otherwise defined herein and that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
Class B Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture and are
subordinated to the Class A Notes to the extent provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
Class B Interest Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against: (i)
the Indenture Trustee or the Managing Member in their individual capacities,
(ii) any owner of a beneficial interest in the Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of: (a) the Indenture
Trustee or the Managing Member in their individual capacities, (b) any holder of
a beneficial interest in the Issuer, the Managing Member or the Indenture
Trustee or of (c) any successor or assign of the Indenture Trustee or the
Managing Member in their individual capacities, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, will be deemed to represent
that either (i) it is not (a) an employee benefit plan (as defined in Section
3(3) of ERISA) or (b) a plan (as defined in Section 4975(e)(1) of the Code) that
is subject to Section 4975 of the Code (each of the foregoing, a "Benefit
Plan"), and is not acting on behalf or investing the plan assets of a Benefit
Plan, or (ii) its acquisition and continued holding of the Note will not give
rise to a nonexempt prohibited transaction under ERISA, Section 4975 of the
Code, or any substantially similar applicable law.
It is the intent of the Issuer, the Servicer, the Noteholders and the Note
Owners that, for purposes of Federal and State income tax and any other tax
measured in whole or in part by income, the Notes will qualify as indebtedness
of the Issuer. Each Noteholder or Note Owner, by acceptance of a Note, or, in
the case of a Note Owner, a beneficial interest in a Note, agrees to
A-2-4
treat, and to take no action inconsistent with the treatment of, the Notes for
such tax purposes as indebtedness of the Issuer.
This Note and the Indenture and the obligations arising hereunder and
thereunder shall in all respects, including all matters of construction,
validity and performance, be governed by, and construed and enforced in
accordance with, the internal laws of the State of New York (including Section
5-1401(1) of the General Obligations Law, but without regard to any other
conflict of laws provisions thereof) and any applicable laws of the United
States of America.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Related Documents, neither [___________________], in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purposes of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Noteholder, by the acceptance
hereof, and each Note Owner by the acceptance of a beneficial interest herein,
each agrees that, except as expressly provided in the Related Documents, in the
case of an Event of Default under the Indenture, the Noteholder and Note Owner
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
A-2-5
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in STAMP or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
* NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular without alteration, enlargement or any change whatsoever.
A-2-6
EXHIBIT A-3
to Indenture
FORM OF CLASS C NOTES
REGISTERED $____________(3)
No. R-___ CUSIP NO. __________________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES 2004-1
[___]% CLASS C NOTES
GE COMMERCIAL EQUIPMENT FINANCING LLC, Series 2004-1, a limited liability
company duly organized and existing under the laws of the State of Delaware
(including any successor, the "Issuer"), for value received, hereby promises to
pay to CEDE & CO., or registered assigns, the principal sum of
_________________________ DOLLARS ($___________), payable as set forth in the
Indenture; provided, that the entire unpaid principal amount of this Note shall
be due and payable on the earlier of the [____________] Payment Date and the
Redemption Date, if any, pursuant to Section 10.1 of the Indenture. The Issuer
will pay interest on this Note at the rate per annum shown above, on each
Payment Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Payment Date (after giving effect to all payments of principal made on the
preceding Payment Date), subject to certain limitations contained in Section 3.1
of the Indenture. Interest on this Note will accrue for each Payment Date from
the most recent Payment Date on which interest has been paid to but excluding
the then current Payment Date or, if no interest has yet been paid, from the
date hereof. Interest will be computed on the basis of
(3) Denominations of $[ ] and in greater whole-dollar denominations in
excess thereof.
A-3-1
the actual number of days in the Interest Accrual Period and a 360 day year.
Such principal of and interest on this Note shall be paid in the manner
specified in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: [____________]
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES
2004-1
By: CEF Equipment Holding, L.L.C.
its Managing Member
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its [___]% Class C Notes (herein called the "C Notes" or the
"Notes"), all issued under an Indenture dated as of [____________] (such
Indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and [___________________], not in its individual capacity but
solely as trustee (the "Indenture Trustee", which term includes any successor
Indenture Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are not otherwise defined herein and that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
Class C Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture and are
subordinated to the Class A Notes and the Class B Notes to the extent provided
in the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
Class C Interest Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against: (i)
the Indenture Trustee or the Managing Member in their individual capacities,
(ii) any owner of a beneficial interest in the Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of: (a) the Indenture
Trustee or the Managing Member in their individual capacities, (b) any holder of
a beneficial interest in the Issuer, the Managing Member or the Indenture
Trustee or of (c) any successor or assign of the Indenture Trustee or the
Managing Member in their individual capacities, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, will be deemed to represent
that either (i) it is not (a) an employee benefit plan (as defined in Section
3(3) of ERISA) or (b) a plan (as defined in Section 4975(e)(1) of the Code) that
is subject to Section 4975 of the Code (each of the foregoing, a "Benefit
Plan"), and is not acting on behalf or investing the plan assets of a Benefit
Plan, or (ii) its acquisition and continued holding of the Note will not give
rise to a nonexempt prohibited transaction under ERISA, Section 4975 of the
Code, or any substantially similar applicable law.
It is the intent of the Issuer, the Servicer, the Noteholders and the Note
Owners that, for purposes of federal and State income tax and any other tax
measured in whole or in part by income, the Notes will qualify as indebtedness
of the Issuer. Each Noteholder or Note Owner, by acceptance of a Note, or, in
the case of a Note Owner, a beneficial interest in a Note, agrees to
A-3-4
treat, and to take no action inconsistent with the treatment of, the Notes for
such tax purposes as indebtedness of the Issuer.
This Note and the Indenture and the obligations arising hereunder and
thereunder shall in all respects, including all matters of construction,
validity and performance, be governed by, and construed and enforced in
accordance with, the internal laws of the State of New York (including Section
5-1401(1) of the General Obligations Law, but without regard to any other
conflict of laws provisions thereof) and any applicable laws of the United
States of America.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Related Documents, neither [___________________], in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purposes of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Noteholder, by the acceptance
hereof, and each Note Owner by the acceptance of a beneficial interest herein,
each agrees that, except as expressly provided in the Related Documents, in the
case of an Event of Default under the Indenture, the Noteholder and Note Owner
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, that nothing contained herein shall be taken to
prevent recourse to, and enforcement against, the assets of the Issuer for any
and all liabilities, obligations and undertakings contained in the Indenture or
in this Note.
A-3-5
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in STAMP or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
* NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular without alteration, enlargement or any change whatsoever.
Pursuant to Section 3.9 of the Indenture, dated as of [__________] (the
"Indenture"), between GE COMMERCIAL EQUIPMENT FINANCING, LLC, Series 2004-1 (the
"Issuer") and JPMORGAN CHASE BANK, N.A., as Indenture Trustee, the undersigned
hereby certify that:
(i) a review of the activities of the Issuer during the
previous fiscal year and of performance under the Indenture has been
made under the supervision of the undersigned; and
(ii) to the best knowledge of the undersigned, based on such
review, the Issuer has complied with all conditions and covenants
under the Indenture throughout such year. [or, if there has been a
default in the compliance of any such condition or covenant, this
certificate is to specify each such default known to the undersigned
and the nature and status thereof]
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES
2004-1
By: CEF Equipment Holding, L.L.C.
its Managing Member
Form of Noteholder's Statement Pursuant to Section 8.5
Payment Date:
AMOUNT OF PRINCIPAL BEING PAID ON NOTES:
Class A-1 Notes: ($_______ per $1,000 original principal amount)
Class A-2 Notes: ($_______ per $1,000 original principal amount)
Class A-3 Notes: ($_______ per $1,000 original principal amount)
Class A-4 Notes: ($_______ per $1,000 original principal amount)
Class B Notes: ($_______ per $1,000 original principal amount)
Class C Notes: ($_______ per $1,000 original principal amount)
AMOUNT OF INTEREST BEING PAID IN NOTES:
Class A-1 Notes: ($_______ per $1,000 original principal amount)
Class A-2 Notes: ($_______ per $1,000 original principal amount)
Class A-3 Notes: ($_______ per $1,000 original principal amount)
Class A-4 Notes: ($_______ per $1,000 original principal amount)
Class B Notes: ($_______ per $1,000 original principal amount)
Class C Notes: ($_______ per $1,000 original principal amount)
POOL BALANCE AT END OF THE PRECEDING COLLECTION PERIOD:
AFTER GIVING EFFECT TO DISTRIBUTIONS ON THIS PAYMENT DATE:
(1) Outstanding Principal Balance of Class A-1 Notes:
(2) Outstanding Principal Balance of Class A-2 Notes:
(3) Outstanding Principal Balance of Class A-3 Notes:
C-1
(4) Outstanding Principal Balance of Class A-4 Notes:
(5) Outstanding Principal Balance of Class B Notes:
(6) Outstanding Principal Balance of Class C Notes:
(7) Class A-1 Note Pool Factor:
(8) Class A-2 Note Pool Factor:
(9) Class A-3 Note Pool Factor:
(10) Class A-4 Note Pool Factor:
(11) Class B Note Pool Factor:
(12) Class C Note Pool Factor:
(ii) Amount of Servicing Fee: ($_______ per $1,000 original principal
amount)
(iii) Amount of Servicer Advances: ($_______ per $1,000 original principal
amount)
(iv) Amount of Administration Fee: ($_______ per $1,000 original principal
amount)
(v) Aggregate amount of outstanding principal balance of Loans that become
Liquidated Loans for the Collection Period;
(vi) Aggregate amount of the portion of the outstanding principal balance of
Loans written off in respect of Loans that became Defaulted Loans for such
Collection Period;
(vii) Aggregate Loan Value of Loans that became Defaulted Loans for the
Collection Period;
(viii) Aggregate Purchase Amounts for the Collection Period;
(ix) Aggregate amount of outstanding principal balance of Loans that became
Delinquent Loans for the Collection Period;
(x) Aggregate amount of Recoveries for the Collection Period; and
(xi) Aggregate amount of Liquidation Proceeds for the Collection Period.
Attention: [________________________]
C-2
SCHEDULE 1
to Indenture
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained in the
Indenture, to induce the Indenture Trustee to enter into the Indenture, the
Issuer hereby represents, warrants, and covenants to Indenture Trustee on behalf
of the Noteholders as to itself as follows, on the Closing Date:
General
1. The Indenture creates a valid and continuing security interest (as
defined in the applicable UCC) in the Collateral in favor of the Indenture
Trustee, which security interest is prior to all other Liens, and is enforceable
as such as against creditors of and purchasers from the Issuer.
2. The Loans constitute "accounts," "general intangibles," "instruments,"
or "tangible chattel paper," within the meaning of the UCC as in effect in the
State of New York.
3. The Issuer has taken all steps necessary to perfect its security
interest against the Purchaser in the property securing the Loans that
constitute chattel paper.
Creation
4. The Issuer owns and has good and marketable title to the Loans free and
clear of any Lien, claim or encumbrance of any Person, excepting only liens for
taxes, assessments or similar governmental charges or levies incurred in the
ordinary course of business that are not yet due and payable or as to which any
applicable grace period shall not have expired, or that are being contested in
good faith by proper proceedings and for which adequate reserves have been
established, but only so long as foreclosure with respect to such a lien is not
imminent and the use and value of the property to which the Lien attaches is not
impaired during the pendency of such proceeding.
Perfection
5. The Issuer has caused or will have caused, within ten days after the
effective date of the Indenture, the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions under
applicable law in order to perfect the sale of the Loans from Purchaser to the
Issuer, and the security interest in the Loans granted to the Indenture Trustee
hereunder and all financing statements referred to in this paragraph contain a
statement that: "A purchase of or security interest in any collateral described
in this financing statement will violate the rights of the Indenture Trustee.".
6. With respect to Loans that constitute an instrument or tangible chattel
paper, either:
Schedule 1
1
(a) Such instruments or tangible chattel paper are in the possession
of a custodian and the Indenture Trustee has received a written
acknowledgment from the custodian that the custodian is holding such
instruments or tangible chattel paper to effect the Indenture Trustee's
security interest therein; or
(b) A custodian received possession of such instruments or tangible
chattel paper after the Indenture Trustee received a written
acknowledgment from such custodian that such custodian is acting to effect
the Indenture Trustee's security interest therein.
7. With respect to the Trust Accounts and all subaccounts that constitute
deposit accounts the Issuer has delivered to the Indenture Trustee a fully
executed agreement pursuant to which the bank maintaining the deposit accounts
has agreed to comply with all instructions originated by the Indenture Trustee
directing disposition of the funds in the Trust Accounts without further consent
by the Issuer.
Priority
8. Other than the transfer of the Loans to the Issuer under the Purchase
and Sale Agreement and the security interest granted to the Indenture Trustee
pursuant to the Indenture, neither the Issuer nor the Purchaser has pledged,
assigned, sold, granted a security interest in, or otherwise conveyed any of the
Loans or the Trust Accounts or any subaccount thereof. Neither the Issuer nor
the Purchaser has authorized the filing of, or is aware of any financing
statements against the Issuer or the Purchaser that include a description of
collateral covering the Loans or the Trust Accounts or any subaccount thereof
other than any financing statement relating to the security interest granted to
the Indenture Trustee hereunder or that has been terminated.
9. Survival of Perfection Representations. Notwithstanding any other
provision of the Indenture or any other Related Document, the Perfection
Representations contained in this Schedule shall be continuing, and remain in
full force and effect until such time as all Notes under the Indenture have been
finally and fully paid and performed.
10. No Waiver. The parties to the Indenture: (i) shall not, without
obtaining a confirmation of the then-current rating of the Notes, waive any of
the Perfection Representations; (ii) shall provide the Ratings Agencies with
prompt written notice of any breach of the Perfection Representations, and (iii)
shall not, without obtaining a confirmation of the then-current rating of the
Notes (as determined after any adjustment or withdrawal of the ratings following
notice of such breach) waive a breach of any of the Perfection Representations.
11. Issuer to Maintain Perfection and Priority. The Issuer covenants that,
in order to evidence the interests of the Issuer and the Indenture Trustee under
this Agreement, the Issuer shall or shall cause the Servicer to, take such
action, or execute and deliver such instruments (other than effecting a Filing
(as defined below), unless such Filing is effected in accordance with this
paragraph) as may be necessary or advisable (including, without limitation, such
actions as are requested by the Indenture Trustee) to maintain and perfect, as a
first priority interest, the Indenture Trustee's security interest in the
Collateral. The Issuer shall cause the Servicer to, from time to time and within
the time limits established by law, prepare and present to the Indenture Trustee
for the Indenture Trustee to authorize (based in reliance on the Opinion
Schedule 1
2
of Counsel hereinafter provided for) the Servicer to file all financing
statements, amendments, continuations, initial financing statements in lieu of a
continuation statement, terminations, partial terminations, releases or partial
releases, or any other filings necessary or advisable to continue, maintain and
perfect the Indenture Trustee's security interest in the Collateral as a
first-priority interest (each a "Filing"). The Issuer shall cause the Servicer
to, present each such Filing to the Indenture Trustee together with (x) an
Opinion of Counsel to the effect that such Filing is (i) consistent with grant
of the security interest to the Indenture Trustee pursuant to the Granting
Clause of this Indenture, (ii) satisfies all requirements and conditions to such
Filing in this Indenture and (iii) satisfies the requirements for a Filing of
such type under the Uniform Commercial Code in the applicable jurisdiction (or
if the Uniform Commercial Code does not apply, the applicable statute governing
the perfection of security interests), and (y) a form of authorization for the
Issuer's signature authorizing the Servicer to effect such Filing under the
Uniform Commercial Code without the signature of the Issuer where allowed by
applicable law.
Schedule 1
3
EXHIBIT 4 (g)
EXECUTION VERSION
ADMINISTRATION AGREEMENT
between
GE Commercial Equipment Financing LLC, Series 2004-1,
as Issuer
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrator
Dated as of November 16, 2004
TABLE OF CONTENTS
PAGE
1. Duties of the Administrator............................................. 1
2. Records................................................................. 6
3. Compensation............................................................ 6
4. Additional Information To Be Furnished to the Issuer.................... 6
5. Independence of the Administrator....................................... 6
6. No Joint Venture........................................................ 6
7. Other Activities of the Administrator................................... 7
8. Term of Agreement; Resignation and Removal of the Administrator......... 7
9. Action upon Termination, Resignation or Removal......................... 8
10. Notices................................................................. 8
11. Amendments.............................................................. 9
12. Successors and Assigns.................................................. 9
13. Governing Law........................................................... 9
14. Other Interpretive Matters.............................................. 11
15. Headings................................................................ 11
16. Counterparts............................................................ 11
17. Severability............................................................ 11
18. Not Applicable to the Administrator in Other Capacities................. 11
19. Limitation of Liability of the Managing Member.......................... 11
20. Indemnification......................................................... 12
-i-
ADMINISTRATION AGREEMENT dated as of November 16, 2004, between GE
Commercial Equipment Financing LLC, Series 2004-1, a Delaware limited liability
company (the "Issuer"), and General Electric Capital Corporation, a Delaware
corporation, as administrator (the "Administrator").
RECITALS
WHEREAS, the Issuer is issuing: (a) One-Month LIBOR - 0.04% Class A-1
Notes, One-Month LIBOR + 0.01% Class A-2 Notes, One-Month LIBOR + 0.02% Class
A-3 Notes, One-Month LIBOR + 0.06% Class A-4 Notes (together, the "Class A
Notes"), One-Month LIBOR + 0.20% Class B Notes (the "Class B Notes") and
One-Month LIBOR + 0.60% Class C Notes (the "Class C Notes," and, together with
the Class A Notes and the Class B Notes, the "Notes") pursuant to the Indenture,
dated as of the date hereof (as amended and supplemented from time to time in
accordance with the provisions thereof, the "Indenture"), between the Issuer and
the Indenture Trustee (capitalized terms used herein and not otherwise defined
herein are defined in the Indenture);
WHEREAS, the Issuer has entered into certain agreements in connection with
the issuance of the Notes and of certain beneficial ownership interests of the
Issuer, including: (i) a Loan Purchase and Sale Agreement, dated as of the date
hereof (as amended and supplemented from time to time, the "Purchase and Sale
Agreement"), between the Issuer and CEF Equipment Holding L.L.C., a Delaware
limited liability company, as seller (the "Transferor"), (ii) the Indenture and
(iii) a Servicing Agreement, dated as of the date hereof (the "Servicing
Agreement), between the Issuer and General Electric Capital Corporation, as
servicer (in such capacity, the "Servicer") (the Servicing Agreement, the
Purchase and Sale Agreement and the Indenture, being hereinafter referred to
collectively as the "Related Documents");
WHEREAS, pursuant to the Related Documents, the Issuer is required to
perform certain duties in connection with: (a) the Notes and the collateral
therefor pledged pursuant to the Indenture (the "Collateral") and (b) the
ownership interests in the Issuer (the registered holders of such interests
being referred to herein as the "Owners");
WHEREAS, the Issuer desires to have the Administrator perform certain of
the duties of the Issuer referred to in the preceding clause, and to provide
such additional services consistent with this Agreement and the Related
Documents as the Issuer may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer on the
terms set forth herein;
NOW, THEREFORE, in consideration of the mutual terms and covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. Duties of the Administrator.
(a) Duties with Respect to the Indenture. The Administrator, on behalf
of the Issuer, shall perform the administrative duties of the Issuer under the
Indenture. In addition, the Administrator, on behalf of the Issuer, shall
consult with the Indenture Trustee regarding the
duties of the Issuer and the Indenture Trustee under the Indenture. The
Administrator, on behalf of the Issuer, shall monitor the performance of the
Issuer and shall advise the Issuer when action is necessary to comply with the
Issuer's duties under the Indenture. The Administrator, on behalf of the Issuer,
shall prepare for execution by the Issuer or shall cause the preparation by
other appropriate Persons of all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Issuer to prepare, file
or deliver pursuant to the Indenture. In furtherance of the foregoing, the
Administrator, on behalf of the Issuer, shall take all appropriate action that
is the duty of the Issuer to take pursuant to such documents, including, without
limitation, such of the foregoing as are required with respect to the following
matters (references in this Section are to sections of the Indenture):
(i) the duty to cause the Note Register to be kept and to give the
Indenture Trustee notice of any appointment of a new Note Registrar and
the location, or change in location, of the Note Register (Section 2.4);
(ii) the notification to the Indenture Trustee of the Payment Date
on which the final installment of principal and interest on the Notes will
be paid (Section 2.7);
(iii) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes and delivery of the
same to the Indenture Trustee (Section 2.2);
(iv) the maintenance of an office at the Corporate Trust Office,
for registration of transfer or exchange of Notes and where notices and
demands to or upon the Issuer in respect of the Notes and the Indenture
may be served (Section 3.2);
(v) the duty to cause newly appointed Paying Agents, if any, to
deliver to the Indenture Trustee the instrument specified in the Indenture
regarding funds held in trust (Sections 3.3 and 6.16);
(vi) the direction to the Paying Agents to pay all sums held in
trust by such Paying Agents to the Indenture Trustee for purposes of
obtaining the satisfaction and discharge of the Indenture (Sections 3.3
and 6.16);
(vii) the observance and compliance by the Issuer in all material
respects with (i) all laws applicable to it and (ii) all requisite and
appropriate organizational and other formalities in the management of its
business and affairs and the conduct of the transactions contemplated by
the Indenture (Section 3.4);
(viii) the preparation of all supplements, amendments and all
writings, and such other actions, necessary or advisable to protect the
Collateral in accordance with Section 3.5 of the Indenture (Section 3.5);
(ix) the delivery of the Opinion of Counsel on the Closing Date and
the annual delivery of Opinions of Counsel, in accordance with Section 3.6
of the Indenture, as to the Collateral, and the annual delivery of the
Officers' Certificate and certain other statements, in accordance with
Section 3.9 of the Indenture, as to compliance with the Indenture
(Sections 3.6 and 3.9);
Administration Agreement
-2-
(x) upon a consolidation or merger of the Issuer, the delivery to
the Indenture Trustee of an Officer's Certificate and an Opinion of
Counsel in accordance with Section 3.10 of the Indenture (Section
3.10(l));
(xi) the preparation, execution and filing of all forms and
documents necessary to pay all taxes in accordance with Section 3.8 of the
Indenture (Section 3.8);
(xii) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations under the
Indenture (Section 3.11(b));
(xiii) the delivery of notice to the Indenture Trustee and the
Rating Agencies of each Event of Default and each default by the Servicer
of its obligations under the Servicing Agreement, each default of the
Transferor under the Purchase and Sale Agreement and each Swap Event of
Default and Swap Termination Event under the Swap Agreement (Section
3.12);
(xiv) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officers' Certificate and the obtaining of an Opinion of Counsel and an
Independent Certificate relating thereto (Section 4.1);
(xv) the compliance with any written directive of the Indenture
Trustee to the Issuer with respect to the sale of the Collateral in a
commercially reasonable manner if an Event of Default shall have occurred
and be continuing (Section 5.2(a)(vi));
(xvi) the delivery of a written demand to the Servicer to deliver
the Loan Files to the Indenture Trustee upon receipt by the Issuer of a
written demand for the same from the Indenture Trustee (Section
5.2(a)(vii));
(xvii) the preparation and delivery of notice to Noteholders of the
removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (Section 6.8);
(xviii) the furnishing to the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee is
not the Note Registrar (Section 7.1);
(xix) the preparation, execution and filing with the Commission and
the Indenture Trustee of the annual reports and of the information,
documents and other reports required to be filed on a periodic basis with,
and summaries thereof as may be required by rules and regulations
prescribed by, the Commission or, if the Issuer is not required to file
with the Commission periodic information, documents or reports, then the
preparation, execution and filing with the Commission and the Indenture
Trustee of such supplementary and periodic information, documents and
reports as may be prescribed by the Commission and, in each case, the
transmission of such summaries, as necessary, to the Noteholders (Section
7.3);
(xx) the opening of one or more accounts in the Issuer's name, the
preparation of Issuer Orders, Officers' Certificates and Opinions of
Counsel and all other actions
Administration Agreement
-3-
necessary with respect to investment and reinvestment of funds in the
Trust Accounts (Sections 8.2 and 8.6);
(xxi) the preparation of an Issuer Request and Officers' Certificate
and the obtaining of an Opinion of Counsel and Independent Certificates,
if necessary, for the release of the Collateral as defined in the
Indenture (Sections 8.7 and 8.8);
(xxii) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and the mailing to the Noteholders of notices with respect to
such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(xxiii) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.5);
(xxiv) the notification of Noteholders of redemption of the Notes
(Section 10.2);
(xxv) the preparation of all Officers' Certificates, Opinions of
Counsel and Independent Certificates with respect to any requests by the
Issuer to the Indenture Trustee to take an action under the Indenture
other than any request that (a) the Indenture Trustee authenticate the
Notes or (b) the Indenture Trustee pay amounts due and payable to the
Issuer under the Indenture to the Issuer's assignee (Section 11.1(a));
(xxvi) the preparation and delivery of Officers' Certificates and
the obtaining of Independent Certificates, if necessary, for the release
of property from the lien of the Indenture (Section 11.1(b));
(xxvii) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to alternate payment and
notice provisions (Section 11.6);
(xxviii) the recording of the Indenture, if applicable (Section
11.13); and
(xxix) the filing with the Commission of the appropriate forms
necessary to suspend reporting requirements under the Securities Exchange
Act (Section 7.4).
(b) Duties with Respect to the Issuer. (i) The Administrator shall
perform such calculations, and shall prepare for execution by the Issuer or
shall cause the preparation by other appropriate Persons, of all such documents,
reports, filings, instruments, certificates and opinions, as it shall be the
duty of the Issuer, to perform, prepare, file or deliver pursuant to the Related
Documents. At the request of the Issuer, the Administrator shall take all
appropriate action that it is the duty of the Issuer to take pursuant to the
Related Documents. Subject to Section 5 of this Agreement, and in accordance
with the directions of the Issuer, the Administrator, on behalf of the Issuer,
shall administer, perform or supervise the performance of such other activities
in connection with the Collateral (including the Related Documents) as are not
covered by any of the foregoing and as are expressly requested by the Issuer,
and are reasonably within the capability of the Administrator.
Administration Agreement
-4-
(ii) Notwithstanding anything in this Agreement or the Related
Documents to the contrary, the Administrator shall be responsible for
promptly notifying the Issuer, in the event that any withholding tax is
imposed on the Issuer's payments (or allocations of income). Any such
notice shall specify the amount of any withholding tax required to be
withheld pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related
Documents to the contrary, the Administrator shall be responsible for
performance of the duties of the Managing Member set forth in Sections 8.2
and 8.3 of the Issuer Limited Liability Company Agreement with respect to,
among other things, accounting and reports to members; provided, however,
that the Managing Member shall retain responsibility for the distribution
of the Schedule K-1s necessary to enable each member to prepare its
Federal and State income tax returns.
(iv) The Administrator shall satisfy its obligations with respect
to clauses (ii) and (iii) by retaining, at the expense of the Issuer, a
firm of independent certified public accountants (the "Accountants")
acceptable to the Issuer, which Accountants shall perform the obligations
of the Administrator thereunder. In connection with clause (ii), the
Accountants will provide a letter in form and substance satisfactory to
the Managing Member or the Issuer, as applicable, as to whether any tax
withholding is then required and, if required, the procedures to be
followed with respect thereto to comply with the requirements of the Code.
The Accountants shall be required to update the letter in each instance
that any additional tax withholding is subsequently required or any
previously required tax withholding shall no longer be required.
(v) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions with or otherwise deal with any of its Affiliates; provided,
however, that the terms of any such transactions or dealings shall be in
accordance with any directions received from the Issuer and shall be, in
the Administrator's opinion, no less favorable to the Issuer than would be
available from unaffiliated parties.
(vi) The Administrator hereby agrees to execute on behalf of the
Issuer all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Issuer to prepare, file or deliver
pursuant to the Related Documents or otherwise by law.
(c) Non-Ministerial Matters. (i) With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the Administrator
shall not take any action unless within a reasonable time before the taking of
such action the Administrator shall have notified the Managing Member or the
Issuer, as applicable, of the proposed action and the Managing Member or the
Issuer, as applicable, shall have consented or provided an alternative
direction. For the purpose of the preceding sentence, "non-ministerial matters"
shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
Administration Agreement
-5-
(B) the initiation of any claim or lawsuit by the Issuer and
the compromise of any action, claim or lawsuit brought by or against
the Issuer (other than in connection with the collection of the
Loans);
(C) the amendment, change or modification of the Related
Documents;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Administrators or
successor Servicers, or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee of its obligations
under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement,
the Administrator shall not be obligated to, and shall not: (x) make any
payments to the Noteholders under the Related Documents or (y) take any
other action that the Issuer directs the Administrator not to take on its
behalf.
2. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer or its
designees, at any time during normal business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to $3,000 per
annum, 1/12 of which is payable in arrears on each Payment Date, which payment
shall be solely an obligation of the Issuer.
4. Additional Information To Be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
5. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer with respect to the manner in which it
accomplishes the performance of its obligations hereunder. Unless expressly
authorized by the Issuer, the Administrator shall have no authority to act for
or represent the Issuer in any way (other than as permitted hereunder) and shall
not otherwise be deemed an agent of the Issuer.
6. No Joint Venture. Nothing contained in this Agreement: (i) shall
constitute the Administrator and the Issuer as members of any partnership, joint
venture, association, syndicate, unincorporated business or other separate
entity, (ii) shall be construed to impose any liability as such on any of them
or (iii) shall be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the others.
7. Other Activities of the Administrator. Nothing herein shall prevent
the Administrator or its Affiliates from engaging in other businesses or, in
their sole discretion, from
Administration Agreement
-6-
acting in a similar capacity as an administrator for any other Person even
though such Person may engage in business activities similar to those of the
Issuer.
8. Term of Agreement; Resignation and Removal of the Administrator. (a)
This Agreement shall continue in force until the dissolution of the Issuer, upon
which event this Agreement shall automatically terminate.
(b) Subject to Section 8(g), the Administrator may resign its duties
hereunder by providing the Issuer and the Servicer with at least 60 days' prior
written notice.
(c) Subject to Section 8(e), the Issuer may remove the Administrator
without cause by providing the Administrator and the Servicer with at least 60
days' prior written notice.
(d) Subject to Section 8(e), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of termination from
the Issuer to the Administrator and the Servicer if any of the following events
shall occur:
(i) the Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such default, shall
not cure such default within ten days (or, if such default cannot be cured
in such time, shall not give within ten days such assurance of cure as
shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have been
vacated within 60 days, in respect of the Administrator in any involuntary
case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect or appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for the Administrator
or any substantial part of its property or order the winding-up or
liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment
of a receiver, liquidator, assignee, trustee, custodian, sequestrator or
similar official for the Administrator or any substantial part of its
property, shall consent to the taking of possession by any such official
of any substantial part of its property, shall make any general assignment
for the benefit of creditors or shall fail generally to pay its debts as
they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this subsection shall occur, it shall give written notice
thereof to the Issuer, the Servicer and the Indenture Trustee within seven days
after the happening of such event.
(e) Upon the Administrator's receipt of notice of termination, pursuant
to Sections 8(c) or (d), or the Administrator's resignation in accordance with
this Agreement, the predecessor Administrator shall continue to perform its
functions as Administrator under this Agreement, in the case of termination,
only until the date specified in such termination notice or, if no such date is
specified in a notice of termination, until receipt of such notice and, in the
case of resignation, until the later of: (x) the date 45 days from the delivery
to the Issuer, the Indenture
Administration Agreement
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Trustee and the Servicer of written notice of such resignation (or written
confirmation of such notice) in accordance with this Agreement and (y) the date
upon which the predecessor Administrator shall become unable to act as
Administrator, as specified in the notice of resignation and accompanying
Opinion of Counsel. In the event of the Administrator's termination hereunder,
the Issuer shall appoint a successor Administrator, and the successor
Administrator shall accept its appointment by a written assumption.
(e) Upon appointment, the successor Administrator shall be the successor
in all respects to the predecessor Administrator and shall be subject to all the
responsibilities, duties and liabilities arising thereafter relating thereto
placed on the predecessor Administrator and shall be entitled to the
compensation specified in Section 3 and all the rights granted to the
predecessor Administrator by the terms and provisions of this Agreement.
(f) No resignation or removal of the Administrator pursuant to this
Section shall be effective until: (i) a successor Administrator shall have been
appointed by the Issuer and (ii) such successor Administrator shall have agreed
in writing to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder.
(g) The appointment of any successor Administrator shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
(h) The Administrator or the Issuer, as the case may be, shall provide
to the Indenture Trustee a copy of all notices required to be delivered under
this Article 8.
9. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a), or the
resignation or removal of the Administrator pursuant to Section 8(b) or (c),
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 8(a) deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
8(b) or (c), respectively, the Administrator shall cooperate with the Issuer and
the Indenture Trustee and take all reasonable steps requested to assist the
Issuer and the Indenture Trustee in making an orderly transfer of the duties of
the Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuer, to:
GE Commercial Equipment Financing LLC, Series 2004-1
c/o General Electric Capital Corporation
44 Old Ridgebury Road
Danbury, Connecticut 06810
Attention: Capital Markets Operations
Administration Agreement
-8-
(b) if to the Administrator, to:
General Electric Capital Corporation,
as Administrator
44 Old Ridgebury Road
Danbury, Connecticut 06810
Attention: General Counsel
Telephone: (203) 796-1000
Facsimile: (203) 796-1313
(c) if to the Indenture Trustee, to:
JPMorgan Chase Bank, N.A.
4 New York Plaza, 6th Floor
New York, New York 10004
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above.
11. Amendments. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer and the
Administrator. Promptly after the execution of any such amendment (or, in the
case of a Rating Agency, 10 days prior thereto), the Administrator shall furnish
written notification of the substance of such amendment or consent to each
Noteholder and each Rating Agency.
12. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and subject to the satisfaction of the Rating Agency Condition in
respect thereof. An assignment with such consent and satisfaction, if accepted
by the assignee, shall bind the assignee hereunder in the same manner as the
Administrator is bound hereunder. Notwithstanding the foregoing, this Agreement
may be assigned by the Administrator without the consent of the Issuer to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator, provided that such successor
organization executes and delivers to the Issuer, an agreement in which such
corporation or other organization agrees to be bound hereunder by the terms of
said assignment in the same manner as the Administrator is bound hereunder.
Subject to the foregoing, this Agreement shall bind any successors or assigns of
the parties hereto.
13. Governing Law. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF
JURY TRIAL. (a) THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN
ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS
OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS
LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW
Administration Agreement
-9-
PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF
MANHATTAN IN NEW YORK CITY; PROVIDED, FURTHER, THAT NOTHING IN THIS AGREEMENT
SHALL BE DEEMED OR OPERATE TO PRECLUDE THE LENDER FROM BRINGING SUIT OR TAKING
OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE BORROWER
COLLATERAL OR ANY OTHER SECURITY FOR THE BORROWER SECURED OBLIGATIONS, OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE LENDER. EACH PARTY
HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY
OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH
PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 10
AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH
PARTY'S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES
MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF
ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Administration Agreement
-10-
14. Other Interpretive Matters. All terms defined directly or by
incorporation in this Agreement shall have the defined meanings when used in any
document delivered pursuant thereto unless otherwise defined therein. For
purposes of this Agreement, unless the context otherwise requires: (a)
accounting terms not otherwise defined herein and accounting terms partly
defined herein to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles; and unless
otherwise provided, references to any month, quarter or year refer to a fiscal
month, quarter or year as determined in accordance with the GE Capital fiscal
calendar; (b) references to any amount as on deposit or outstanding on any
particular date means such amount at the close of business on such day; (c) the
words "hereof," "herein" and "hereunder" and words of similar import refer to
this Agreement as a whole and not to any particular provision of this Agreement;
(d) references to any Section, Schedule or Exhibit are references to Sections,
Schedules and Exhibits in or to this Agreement, and references to any paragraph,
subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or
definition; (e) the term "including" means "including without limitation"; (f)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (g) references to
any agreement refer to that agreement as from time to time amended, restated or
supplemented or as the terms of such agreement are waived or modified in
accordance with its terms; (h) references to any Person include that Person's
successors and assigns; and (i) headings are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
15. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
16. Counterparts. This Agreement may be executed in counterparts, all of
which when so executed shall together constitute but one and the same agreement.
17. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
18. Not Applicable to the Administrator in Other Capacities. Nothing in
this Agreement shall affect any obligation that the Administrator may have in
any other capacity.
19. Limitation of Liability of the Managing Member. Notwithstanding
anything contained herein to the contrary, this instrument has been
countersigned by CEF Equipment Holding, L.L.C., not in its individual capacity
but solely in its capacity as the Managing Member of the Issuer, and in no event
shall CEF Equipment Holding, L.L.C., in its individual capacity, or any
beneficial owner of the Issuer have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder,
as to all of which recourse shall be had solely to the assets of the Issuer.
Administration Agreement
-11-
20. Indemnification. The Administrator shall indemnify the Issuer (and
its officers, directors, employees and agents) for, and hold them harmless
against, any losses, liability or expense, including attorneys' fees reasonably
incurred by them, incurred without negligence or bad faith on their part,
arising out of or in connection with: (i) actions taken by either of them
pursuant to instructions given by the Administrator pursuant to this Agreement
or (ii) the failure of the Administrator to perform its obligations hereunder.
The indemnities contained in this Section shall survive the termination of this
Agreement and the resignation or removal of the Administrator or the Issuer.
Administration Agreement
-12-
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
GE COMMERCIAL EQUIPMENT FINANCING LLC,
SERIES 2004-1
By: CEF Equipment Holding, L.L.C.,
its Managing Member
BETWEEN GENERAL ELECTRIC CAPITAL SERVICES, INC. ("PARTY A")
AND
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES 2004-1 ("PARTY B")
PART 1
TERMINATION PROVISIONS
In this Agreement --
(a) "SPECIFIED ENTITY" means in relation to Party A and Party B for the
purpose of Sections 5(a)(v), (vi), (vii) and Section 5(b)(v): Not
applicable.
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14 of
this Agreement.
(c) The "FAILURE TO PAY OR DELIVER" provision of Section 5(a)(i) is hereby
amended by replacing the word "first" with the word "third" in the third
line thereof.
(d) The "BREACH OF AGREEMENT" provision of Section 5(a)(ii) will not apply to
Party A and will not apply to Party B.
(e) The "MISREPRESENTATION" provision of Section 5(a)(iv) will not apply to
Party A and will not apply to Party B.
(f) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will not apply to Party
A and will not apply to Party B.
(g) The "BANKRUPTCY" provision of Section 5(a)(vii) is hereby amended by
replacing "15" with "30" in the 16th and 23rd lines thereof.
(h) The "CREDIT SUPPORT DEFAULT" provision of Section 5(a)(iii) will apply to
Party A and will not apply to Party B; provided, however, that Party A
shall have a 30-days grace period following the occurrence of an event
under Section 5(a)(iii) to cure such event before it becomes an Event of
Default.
1
(i) The "FORCE MAJEURE EVENT" provision of Section 5(b)(ii) will not apply to
Party A and will not apply to Party B.
(j) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(v) will not
apply to Party A and will not apply to Party B.
(k) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a) will not
apply to Party A and will not apply to Party B.
(l) "TERMINATION CURRENCY" means United States Dollars.
(m) ADDITIONAL TERMINATION EVENT will apply. The following shall constitute an
Additional Termination Event:
(i) Credit Downgrade - Party A. If at any time (i) the unsecured debt
ratings of Party A are withdrawn or reduced below "A+" (long term) or, if
a short term rating is in effect for Party A, "A-1" (short term) by
Standard & Poor's Rating Services ("S&P"); or (ii) (a) Party A has both
long and short term unsecured debt ratings from Moody's Investors Service,
Inc. ("Moody's"), and any such rating is withdrawn, reduced below (or put
on watch for downgrade at) "A1" (long term) or "P-1" (short term) or (b)
Party A has only a long-term unsecured debt rating from Moody's and such
rating is withdrawn, reduced below (or put on watch for downgrade at)
"Aa3" (any of the above referenced withdrawals or reductions in credit
status being herein referred to as a "Downgrade"); then Party A shall
promptly notify Party B by telephone (promptly confirmed in writing), and
Party B then shall notify the Rating Agencies. Party A shall then, at its
own expense, (in consultation with Party B), within 30 days of the date of
the Downgrade, enter into a "Qualifying Substitute Arrangement" (as
defined below) to assure performance by Party A of its obligations under
the Transactions. If Party A fails to enter into a Qualifying Substitute
Arrangement pursuant to this provision, it shall be an Additional
Termination Event in which Party A is the sole Affected Party.
"Qualifying Substitute Arrangement" shall mean one of the following
arrangements: (i) providing an unconditional guaranty or letter of credit
to Party B covering all of the obligations under this Agreement and all
Transactions hereunder in which the guarantor or provider of the
applicable letter of credit satisfies the Counterparty Ratings Requirement
or (ii) procuring a Replacement Transaction which replaces all
Transactions outstanding under this Agreement with Transactions on
identical terms, in either (i) or (ii) in satisfaction of the Rating
Agency Conditions.
"Counterparty Ratings Requirement" means with respect to any entity,
that either such entity or its Credit Support Provider, has (i) (a) a
Moody's long-term unsecured debt rating or counterparty rating of at least
"Aa3" where the entity or its Credit Support Provider has only a long-term
unsecured debt rating (b) a Moody's long-term and short-term unsecured
debt rating of at least "Aa3" and "P-1", respectively, where the entity or
its Credit Support Provider has both a long-term and a short-term debt
rating, and (ii) (a) an S&P long-term unsecured debt rating or
counterparty rating of at least "AA" where the entity or its Credit
Support Provider has only a long-term unsecured debt rating or (b) an S&P
long-term and short-term unsecured debt rating of at least "AA" and "A-1"
where the entity or its Credit Support Provider has both a long-term and a
short-term debt rating," and (iii) notwithstanding the foregoing, if such
entity or its Credit Support Provider has a Fitch short-term unsecured
debt rating, such rating shall be at least "F1"
2
and if such entity or its Credit Support Provider has a Fitch long-term
unsecured debt rating, such rating shall be at least "A".
"Replacement Transaction" means a transaction, with terms
satisfactory to Party B, with a replacement counterparty meeting the
Counterparty Rating Requirement who shall assume, at no cost to Party B,
Party A's position under this Agreement and all Transactions hereunder.
(n) DISCONTINUED AGENCY. If one of the foregoing credit rating agencies ceases
to be in the business of rating Debt Securities and such business is not
continued by a successor or assign of such agency (the "Discontinued
Agency"), Party A and Party B shall jointly (i) select a
nationally-recognized credit rating agency in substitution thereof and
(ii) agree on the rating level issued by such substitute agency that is
equivalent to the ratings specified herein of the Discontinued Agency,
whereupon such substitute agency and equivalent rating shall replace the
Discontinued Agency and the rating level thereof for the purposes of this
Agreement. If at any time all of the agencies specified herein with
respect to a party have become Discontinued Agencies and Party A and Party
B have not previously agreed in good faith on at least one agency and
equivalent rating in substitution for each Discontinued Agency and the
applicable rating thereof, the Downgrade provisions of Part 1(m)(i) shall
cease to apply to the parties.
PART 2
TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATION. For the purpose of Section 3(e) of this
Agreement, Party A and Party B make the following representation:
Not applicable.
(b) PAYEE TAX REPRESENTATIONS. For the purpose of Section 3(f) of this
Agreement, Party A and Party B make the representations specified below,
if any:
Not applicable.
3
PART 3
AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each Party
agrees to deliver the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are: None.
(b) Other documents to be delivered are:
PARTY
REQUIRED DATE BY COVERED BY
TO DELIVER FORM/DOCUMENT/ WHICH TO BE Section (3)(d)
DOCUMENTS CERTIFICATE DELIVERED REPRESENTATION
------------ ------------------------------------------ ---------------------------- --------------
Party A A copy of the most recent annual report of Upon request of the other Yes
such party or its Credit Support Provider, party.
as applicable, containing audited
consolidated financial statements for such
fiscal year certified by independent
certified public accountants and prepared
in accordance with generally accepted
accounting principles ("GAAP") in the
party's country of organization, or, in
lieu thereof, a copy of such party's most
recent Form 10-K as filed with the
Securities and Exchange Commission.
Party A & B Evidence, reasonably satisfactory in form At or promptly following the Yes
and substance to the receiving party, execution and delivery of
concerning the due execution and delivery this Agreement and the
of this Agreement or any Confirmation, execution and delivery of
including, without limitation, signing any Confirmation (if such
authority and specimen signatures for each Confirmation so requires).
signatory.
Party B Legal opinion in a form satisfactory to Upon execution of the No
the other party. Agreement.
Party B The Indenture and other related documents. Upon execution of the Yes
Agreement
4
PART 4
MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this Agreement:
Address for notices or communications to Party A:
Address: General Electric Capital Services, Inc.
201 High Ridge Road
Stamford, CT
Attention: Senior Vice President - Corporate Treasury and Global Funding
Operations
Telephone: 203-357-4000
Facsimile: 203-357-4975
Address for notices or communications to Party B:
GE Commercial Equipment Financing LLC, Series 2004-1
Address: c/o General Electric Capital Corporation, as Servicer
201 High Ridge Road
Stamford, CT 06927
Attention: Senior Vice President - Corporate Treasury
and Global Funding Operation
Telephone: 203-357-4000
Facsimile: 203-357-4975
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: Not applicable
Party B appoints as its Process Agent: Not applicable
(c) OFFICES. The provisions of Section 10(a) shall apply to this Agreement;
provided, however, that the first sentence of Section 10(a) is hereby
amended by deleting the words "except that a party will not have recourse
to the head or home office of the other party in respect of any payment or
delivery deferred pursuant to Section 5(d) for so long as the payment or
delivery is so deferred."
(d) MULTIBRANCH PARTY. For the purpose of Section 10(b), Party A is not a
Multibranch Party and Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent shall be Party A.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document: Not
applicable.
(g) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York without reference to
choice of law doctrine.
5
(h) NETTING OF PAYMENTS. "Multiple Transaction Payment Netting" will not apply
for the purpose of Section 2(c) of this Agreement to all Transactions (in
each case starting from the date of this Agreement).
(i) "AFFILIATE" will have the meaning specified in Section 14 provided that
Party A and Party B shall not have, or be deemed to have, any Affiliates
for purposes of this Agreement
(j) ABSENCE OF LITIGATION. For the purpose of Section 3(c):
"Specified Entity" means in relation to Party A: Not applicable.
"Specified Entity" means in relation to Party B: Not applicable.
(k) NO AGENCY. The provisions of Section 3(g) will apply to this Agreement.
(l) ADDITIONAL REPRESENTATION will apply. For the purpose of Section 3 of this
Agreement, the following will constitute an Additional Representation:
(i) Non-Reliance. It is acting for its own account, and it has made its
own independent decisions to enter into that Transaction and as to whether
that Transaction is appropriate or proper for it based upon its own
judgment and upon advice from such advisers as it has deemed necessary. It
is not relying on any communication (written or oral) or the other party
as investment advice or as a recommendation to enter into that
Transaction, it being understood that information and explanations related
to the terms and conditions of a Transaction will not be considered
investment advice or a recommendation to enter into that Transaction. No
communication (written or oral) received from the other party will be
deemed to be an assurance or guarantee as to the expected results of that
Transaction.
(ii) Assessment and Understanding. It is capable of assessing the merits
of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms, conditions
and risks of that Transaction. It is also capable of assuming, and
assumes, the risks of that Transaction.
(iii) Status of Parties. The other party is not acting as a fiduciary for
or an adviser to it in respect of that Transaction.
(iv) Eligible Contract Participant. It is an "eligible contract
participant" as defined in Section la(12) of the Commodity Exchange Act,
as amended.
(m) CONSENT TO RECORDING. Each party (i) consents to the recording of the
telephone conversations of trading and marketing personnel of the parties
in connection with this Agreement or any potential Transaction, (ii)
agrees to obtain any necessary consent of, and give notice of such
recording to, such personnel and (iii) agrees, to the extent permitted by
applicable law, that recordings may be submitted in evidence in any
Proceedings.
6
PART 5
OTHER PROVISIONS
(a) RECOURSE AND RANKING. The obligations of Party B under this Agreement, and
under any Transaction executed hereunder, are solely the obligations of
Party B. No recourse shall be had for the payment of any amount owing in
respect of any Transaction or any other obligation or claim arising out of
or based upon this Agreement against any member, employee, officer,
director or agent of Party B. Any accrued obligations owing by Party B
under this Agreement and any Transaction shall be payable by Party B
solely to the extent that funds are available therefor from time to time
in accordance with the provisions of the Indenture; provided that such
accrued obligations shall not be extinguished until paid in full.
Notwithstanding any provisions contained in this Agreement to the
contrary, Party B shall not be obligated to pay any amount pursuant to
this Agreement unless Party B has received funds which may be used to make
such payment in accordance with the Indenture.
(b) LIMITATION OF DEFAULTS AND TERMINATION. Notwithstanding the terms of
Sections 5 and 6 of this Agreement, Party A shall be entitled to designate
an Early Termination Date pursuant to Section 6 of this Agreement only as
a result of the occurrence of an Event of Default set forth in Section
5(a)(i) or 5(a)(vii) as amended above with respect to Party B as the
Defaulting Party or a Termination Event set forth in Sections 5(b)(i) or
5(b)(iii) of this Agreement with respect to Party A as the Affected Party.
(c) NO BANKRUPTCY PETITION AGAINST THE COMPANY. Party A hereby covenants and
agrees that, prior to the date which is one year and one day after all the
Notes (or any rated securities) issued by Party B have been paid in full
it will not institute against, or join any other Person in instituting
against, Party B any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings or other similar proceeding under the laws of
the United States or any state of the United States.
(d) ADDITIONAL TAX PROVISIONS. The definition of "Indemnifiable Tax" in
Section 14 of this Agreement is modified by adding the following at the
end thereof:
Notwithstanding the foregoing, "Indemnifiable Tax" also means any
Tax imposed in respect of a payment under this Agreement by reason
of a Change in Tax Law by a government or taxing authority of a
Relevant Jurisdiction of the party making such payment, unless the
other party is incorporated, organized, managed and controlled or
considered to have its seat in such jurisdiction, or is acting for
purposes of this Agreement through a branch or office located in
such jurisdiction.
(e) DEFINITIONS. Reference is hereby made to the 2000 ISDA Definitions (the
"2000 Definitions"), as published by the International Swaps and
Derivatives Association, Inc. ("ISDA"), which are hereby incorporated by
reference herein and shall be deemed to be incorporated in each
Confirmation hereunder, unless otherwise specified in a Confirmation. Any
terms used and not otherwise defined herein which are contained in the
2000 Definitions shall have the meaning set forth therein. Capitalized
terms used and not otherwise defined herein or in the Agreement or the
2000 Definitions (hereinafter defined) shall have the meanings assigned to
them in the Indenture,
7
dated as of November 16, 2004, among Party B and JPMorgan Chase Bank,
N.A., as Indenture Trustee, as amended or supplemented from time to time
(the "Indenture").
(f) WAIVER OF CONTRACTUAL RIGHT OF SETOFF. Notwithstanding any provision of
this Agreement or any other existing or future agreement, each party
irrevocably waives any and all contractual rights it may have to set off,
recoup or otherwise withhold or suspend or condition payment or
performance of any obligation between the two parties hereunder against
any obligations between the two parties under any other agreements.
(g) WAIVER OF RIGHT TO TRIAL BY JURY. Each party irrevocably waives, to the
fullest extent permitted by applicable law, any right it may have to trial
by jury of any claim, demand or cause of action relating in any way to
this Agreement or any Credit Support Document, whether sounding in
contract or tort or otherwise, and agrees that either party may file a
copy of this section with any court as evidence of the waiver of its jury
trial rights.
(h) CONDITIONS PRECEDENT. Section 2(a)(iii)(1) of the Agreement shall not
apply to the obligations of Party A unless an Event of Default set forth
in Sections 5(a)(i) or 5(a)(vii) as amended above with respect to Party B
has occurred and is continuing.
(i) AMENDMENT. No assignments, amendment, modification or waiver in respect of
this Agreement will be effective unless (i) the Rating Agency Conditions
have been satisfied prior to such assignments, amendment, modification or
waiver and (ii) any such assignment, amendment, modification or waiver has
been entered into in accordance with the terms of Sections 7 and 9 of this
Agreement.
(j) TRANSFERS. Notwithstanding Section 6 and Section 7 of the Agreement, no
transfer (other than in connection with Section 7(b)) by Party A shall be
effective unless Party A obtains Party B's consent and the Rating Agency
Condition has been satisfied prior to such transfer.
8
Please confirm your agreement to the terms of the foregoing Schedule by
signing below.
GENERAL ELECTRIC CAPITAL SERVICES,
INC.
By: ______________________________
Name:
Title:
GE COMMERCIAL EQUIPMENT
FINANCING LLC, SERIES 2004-1
By: CEF Equipment Holding, L.L.C.
its Managing Member
By: ______________________________
Name:
Title:
9
EXHIBIT 4 (i)
CONFIRMATION
Date: November 16, 2004
To: GE Commercial Equipment Financing LLC,
Series 2004-1 ("Party B")
Attention: Manager, Conduit Administration
From: General Electric Capital Services, Inc.
("Party A")
Transaction Reference Number: 17644
The purpose of this letter agreement is to set forth the terms and conditions of
the Transaction entered into between us on the Trade Date referred to below.
This letter constitutes a "Confirmation" as referred to in the Master Agreement
specified below.
The definitions and provisions contained in the 2000 ISDA Definitions (as
published by the International Swap and Derivatives Association, Inc., as such
definitions are modified and amended by the Schedule to the Master Agreement)
(the "Definitions") are incorporated into this Confirmation. In the event of any
inconsistency between those definitions and provisions and this Confirmation,
this Confirmation will govern.
This Confirmation supplements, forms a part of, and is subject to, the ISDA
Master Agreement dated as of November 16, 2004, as amended or supplemented from
time to time (the "Master Agreement") between you and us. All provisions
contained in the Master Agreement shall govern this Confirmation except as
expressly modified below.
The capitalized terms used herein and not otherwise defined herein, in the
Master Agreement or in the Definitions shall have the meanings assigned to them
in the Indenture, dated as of November 16, 2004, between Party A and JPMorgan
Chase Bank, N.A., as Indenture Trustee (the "Indenture") and the Servicing
Agreement, dated as of November 16, 2004, between Party A and General Electric
Capital Corporation, as Servicer (the "Servicing Agreement"), each as amended or
supplemented from time to time.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Type of Transaction: Fixed/Floating Interest Rate Swap
Notional Amount: With respect to any Calculation Period, the
product of (i) the aggregate Loan Value of
Loans that bear interest at a fixed rate
(excluding Hybrid Loans, the "Fixed Rate
Loans") as of the beginning of the calendar
month in which the Calculation Period
commenced; and (ii) the lesser of (x) the
quotient of (a) the Outstanding Principal
Balance of the Notes immediately after the
Payment Date on which such Calculation
Period commences; divided by (b) the Pool
Balance as of the beginning of the calendar
month in which the
Calculation Period commenced and (y) 1.0.
The Notional Amount for the first
Calculation Period is USD 464,151,471.75.
Trade Date: November 10, 2004
Effective Date: November 16, 2004
Termination Date: The earlier of (i) the Payment Date
occurring in December, 2015; (ii) the
Payment Date on which the aggregate
outstanding Loan Values of the Fixed Rate
Loans is zero; (iii) the Payment Date on
which the Outstanding Principal Balance of
the Notes is reduced to zero and (iv) an
Early Termination Date.
Payment Date: One Business Day prior to the last day of
each Calculation Period.
Calculation Period: Initially, the period from and including the
Effective Date to but excluding, December
20, 2004, and for each period thereafter,
from and including the twentieth day of each
calendar month to and excluding the
twentieth day of the next calendar month.
Business Day Convention: Following
Business Day: New York
Fixed Rate Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer
Payment Date: Each Payment Date
Fixed Rate Payer
Period End Dates: Last day of each Calculation Period, with No
Adjustment to Period End Date.
Fixed Rate: 3.3815% per annum
Fixed Rate Day
Count Fraction: 30/360
LIBOR Floating Rate Amounts:
LIBOR Floating Rate Payer: Party A
LIBOR Floating Rate Payer
Fixed/Floating Rate Confirmation
Payment Dates: Each Payment Date
LIBOR Floating Rate Payer
Period End Dates: The last day of each Calculation Period,
subject to adjustment in accordance with the
Following Business Date Convention.
Reset Date: The first day of each Interest Accrual
Period, subject to adjustment in accordance
with the Following Business Date Convention.
LIBOR Floating Rate: USD-LIBOR-BBA
Designated Maturity: One month
Cap Rate: N/A
LIBOR Floating Rate Day
Count Fraction: Actual/360
Compounding: N/A
Business Days: New York
Calculation Agent: Party A
Account Details
Payments to Party A: To be provided in written instructions.
Payments to Party B: To be provided in written instructions.
[Signature Page Follows].
Fixed/Floating Rate Confirmation
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us.
Accepted and confirmed as of
the date first above written:
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES 2004-1
By: CEF Equipment Holding, L.L.C.
its Managing Member
By _________________________________
Name:
Title:
Fixed/Floating Rate Confirmation
EXHIBIT 4 (j)
CONFIRMATION
Date: November 16, 2004
To: GE Commercial Equipment Financing LLC,
Series 2004-1 ("Party B")
Attention: Manager, Conduit Administration
From: General Electric Capital Services, Inc.
("Party A")
Transaction Reference Number: [ ]
The purpose of this letter agreement is to set forth the terms and conditions of
the Transaction entered into between us on the Trade Date referred to below.
This letter constitutes a "Confirmation" as referred to in the Master Agreement
specified below.
The definitions and provisions contained in the 2000 ISDA Definitions (as
published by the International Swap and Derivatives Association, Inc., as such
definitions are modified and amended by the Schedule to the Master Agreement)
(the "Definitions") are incorporated into this Confirmation. In the event of any
inconsistency between those definitions and provisions and this Confirmation,
this Confirmation will govern.
This Confirmation supplements, forms a part of, and is subject to, the ISDA
Master Agreement dated as of November 16, 2004, as amended or supplemented from
time to time (the "Master Agreement") between you and us. All provisions
contained in the Master Agreement shall govern this Confirmation except as
expressly modified below.
The capitalized terms used herein and not otherwise defined herein, in the
Master Agreement or in the Definitions shall have the meanings assigned to them
in the Indenture, dated as of November 16, 2004, between Party A and JPMorgan
Chase Bank, N.A., as Indenture Trustee (the "Indenture") and the Servicing
Agreement, dated as of November 16, 2004, between Party A and General Electric
Capital Corporation, as Servicer (the "Servicing Agreement"), each as amended or
supplemented from time to time.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Type of Transaction: Hybrid Rate Swap
Notional Amount: With respect to any Calculation Period, the
product of (i) the aggregate Loan Value of
the Hybrid Loans as of the beginning of the
calendar month in which the Calculation
Period commenced; and (ii) the lesser of (x)
the quotient of (a) the Outstanding
Principal Balance of the Notes immediately
after the Payment Date on which such
Calculation Period commences; divided by (b)
the Pool Balance as of the beginning of the
calendar month in which the Interest Accrual
Period commenced and (y) 1.0. The
Notional Amount for the first Calculation
Period is USD 139,869,789.56.
Trade Date: November 10, 2004
Effective Date: November 16, 2004
Termination Date: The earlier of (i) the Payment Date
occurring in December 2015; (ii) the Payment
Date on which the aggregate outstanding Loan
Values of the Hybrid Loans is zero; (iii)
the Payment Date on which the Outstanding
Principal Balance of the Notes is reduced to
zero and (iv) an Early Termination Date.
Payment Date: One Business Day prior to the last day of
each Calculation Period.
Calculation Period: Initially, the period from and including the
Effective Date to but excluding, December
20, 2004, and for each period thereafter,
from and including the twentieth day of each
calendar month to and excluding the
twentieth day of the next calendar month.
Business Day Convention: Following
Business Day: New York
Party B Floating Rate Amounts:
Party B Floating Rate Payer: Party B
Party B Floating Rate Payer
Payment Date: Each Payment Date
Party B Floating Rate Payer
Period End Dates: Last day of each Calculation Period, subject
to adjustment in accordance with the
Following Business Date Convention.
Party B Floating Rate: Hybrid Rate
"Hybrid Rate" means with respect to any
Calculation Period, a rate based upon the
weighted average of the interest rate index
applicable to the Hybrid Loans as determined
by Party B.
"Hybrid Loan" means each Loan that accrues
interest based upon an index that is
determined by reference to a floating rate
and that is convertible at the option of the
Obligor thereunder to a fixed rate based on
a benchmark index.
GECS Hybrid Loan Rate Confirmation
Spread: 1.45 basis points (0.0145%) per annum
Party B Floating Rate Day
Count Fraction: Actual/360
LIBOR Floating Rate Amounts:
LIBOR Floating Rate Payer: Party A
LIBOR Floating Rate Payer
Payment Dates: Each Payment Date
LIBOR Floating Rate Payer
Period End Dates: The last day of each Calculation Period,
subject to adjustment in accordance with the
Following Business Date Convention.
Reset Date: The first day of each Calculation Period,
subject to adjustment in accordance with the
Following Business Date Convention.
LIBOR Floating Rate: USD-LIBOR-BBA
Designated Maturity: One month
Cap Rate: N/A
LIBOR Floating Rate Day
Count Fraction: Actual/360
Compounding: N/A
Business Days: New York
Calculation Agent: Party A
Account Details
Payments to Party A: To be provided in written instructions.
Payments to Party B: To be provided in written instructions.
[Rest of page intentionally left blank]
GECS Hybrid Loan Rate Confirmation
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us.
Accepted and confirmed as of
the date first above written:
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES 2004-1
By: CEF Equipment Holding, L.L.C.
its Managing Member
By _________________________________
Name:
Title:
GECS Hybrid Loan Rate Confirmation
EXHIBIT 4 (k)
CONFIRMATION
Date: November 16, 2004
To: GE Commercial Equipment Financing, LLC,
Series 2004-1 ("Party B")
Attention: Manager, Conduit Administration
From: General Electric Capital Services, Inc.
("Party A")
Transaction Reference Number: 17657
The purpose of this letter agreement is to set forth the terms and conditions of
the Transaction entered into between us on the Trade Date referred to below.
This letter constitutes a "Confirmation" as referred to in the Master Agreement
specified below.
The definitions and provisions contained in the 2000 ISDA Definitions (as
published by the International Swap and Derivatives Association, Inc., as such
definitions are modified and amended by the Schedule to the Master Agreement)
(the "Definitions") are incorporated into this Confirmation. In the event of any
inconsistency between those definitions and provisions and this Confirmation,
this Confirmation will govern.
This Confirmation supplements, forms a part of, and is subject to, the ISDA
Master Agreement dated as of November 16, 2004, as amended or supplemented from
time to time (the "Master Agreement") between you and us. All provisions
contained in the Master Agreement shall govern this Confirmation except as
expressly modified below.
The capitalized terms used herein and not otherwise defined herein, in the
Master Agreement or in the Definitions shall have the meanings assigned to them
in the Indenture, dated as of November 16, 2004, between Party A and JPMorgan
Chase Bank, N.A., as Indenture Trustee (the "Indenture") and the Servicing
Agreement, dated as of november 16, 2004, between Party A and General Electric
Capital Corporation, as Servicer (the "Servicing Agreement"), each as amended or
supplemented from time to time.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Type of Transaction: CMT Rate Swap
Notional Amount: With respect to any Calculation Period, the
product of (i) the aggregate Loan Value of
Loans that bear interest based on a one-year
constant treasury maturity index (the "CMT
Rate Loans") as of the beginning of the
calendar month in which the Calculation
Period commenced; and (ii) the lesser of (x)
the quotient of (a) the Outstanding
Principal Balance of the Notes immediately
after the Payment Date on which such
Calculation Period commences; divided by (b)
the Pool Balance as of the beginning of the
calendar
1
month in which the Calculation Period
commenced and (y) 1.0. The Notional Amount
for the first Calculation Period is USD
19,862,490.57.
Trade Date: November 10, 2004
Effective Date: November 16, 2004
Termination Date: The earlier of (i) the Payment Date
occurring in December 2015; (ii) the Payment
Date on which the aggregate outstanding Loan
Values of the CMT Rate Loans is zero; (iii)
the Payment Date on which the Outstanding
Principal Balance of the Notes is reduced to
zero and (iv) an Early Termination Date.
Payment Date: One Business Day prior to the last day of
each Calculation Period.
Calculation Period: Initially, the period from and including the
Effective Date to but excluding, December
20, 2004, and for each period thereafter,
from and including the twentieth day of each
calendar month to and excluding the
twentieth day of the next calendar month.
Business Day Convention: Following
Business Day: New York
Party B Floating Rate Amounts:
Party B Floating Rate Payer: Party B
Party B Floating Rate Payer
Payment Date: Each Payment Date
Party B Floating Rate Payer
Period End Dates: Last day of each Calculation Period, subject
to adjustment in accordance with the
Following Business Date Convention.
Party B Floating Rate: CMT Rate
"CMT Rate" means with respect to any
Interest Accrual Period, a rate based upon
the one-year constant treasury maturity
index applicable to the CMT Loans as
determined by Party B.
Spread: 22.5 bps (.225%) per annum
Party B Floating Rate Day
Count Fraction: 30/360
LIBOR Floating Rate Amounts:
LIBOR Floating Rate Payer: Party A
LIBOR Floating Rate Payer
Payment Dates: Each Payment Date
LIBOR Floating Rate Payer
Period End Dates: The last day of each Calculation Period,
subject to adjustment in accordance with the
Following Business Date Convention.
Reset Date: The first day of each Calculation Period,
subject to adjustment in accordance with the
Following Business Date Convention.
LIBOR Floating Rate: USD-LIBOR-BBA
Designated Maturity: One month
Cap Rate: N/A
LIBOR Floating Rate Day
Count Fraction: Actual/360
Compounding: N/A
Business Days: New York
Calculation Agent: Party A
Account Details
Payments to Party A: To be provided in written instructions.
Payments to Party B: To be provided in written instructions.
[Rest of page intentionally left blank]
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us.
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