Exhibit 4(h)
ADMINISTRATION AGREEMENT
between
GE Commercial Equipment Financing LLC, Series 2003-1,
as Issuer
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrator
Dated as of September 25, 2003
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 ................................ 6
8. Term Of Agreement; Resignation And Removal Of The Administrator ...... 6
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 ........................................... 10
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 ...................................................... 11
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ADMINISTRATION AGREEMENT dated as of September 25, 2003, between GE
Commercial Equipment Financing LLC, Series 2003-1, 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 + 0.07% Class A-2 Notes, One-Month LIBOR + 0.09% Class
A-3 Notes, One-Month LIBOR + 0.12% Class A-4 Notes (together, the "Class A
Notes") and One-Month LIBOR + 0.43% Class B Notes (the "Class B Notes," and,
together with the Class A 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") and;
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;
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 (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 (Section 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
(Section 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, in accordance with Section 3.5 of the Indenture,
necessary to protect the Collateral (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 3.7 and 3.9);
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(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 3.9 of the Indenture
(Section 3.9(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 of
each Event of Default and each default by the Servicer of its
obligations under the Servicing Agreement and each default of the
Transferor under the Purchase and Sale 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 the Opinion of Counsel and
the 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);
(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(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, the preparation, execution and filing with the Commission and
the Indenture Trustee of such supplementary and periodic information 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 necessary with respect to
investment and reinvestment of funds in the Trust Accounts (Sections
8.2 and 8.5);
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(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 8.6 and 8.7);
(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); and
(xxviii) the recording of the Indenture, if applicable
(Section 11.13).
(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.
(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.
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(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 8.3of the 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 prior to, 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;
(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;
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(D) the appointment of successor Note
Registrars, successor Paying Agents and successor 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 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 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.
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(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 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.
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(f) 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.
(g) 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.
(h) The appointment of any successor Administrator shall be
effective only after satisfaction of the Rating Agency Condition with respect to
the proposed appointment.
(i) 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 2003-1
c/o General Electric Capital Corporation
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Capital Markets Operations
(b) if to the Administrator, to:
General Electric Capital Corporation,
as Administrator
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: 203/▇▇▇-▇▇▇▇
Facsimile: 203/796-1313
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(c) if to the Indenture Trustee, to:
JPMorgan Chase Bank
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: Institutional Trust Services Structured
Finance
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 the Rating Agencies, 10 days prior thereto), the Administrator shall
furnish written notification of the substance of such amendment or consent to
each Noteholder and each of the Rating Agencies.
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 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
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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 11.1 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.
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,"
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"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.
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
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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 2003-1
By: CEF Equipment Holding, L.L.C.,
its Managing Member
By: ________________________________________
Name: __________________________________
Title: _________________________________
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrator
By: ________________________________________
Name: __________________________________
Title: _________________________________
Accepted and agreed:
CEF EQUIPMENT HOLDING, L.L.C.,
not in its individual capacity but
solely as Managing Member under
the Limited Liability Company Agreement
By: ________________________________________
Name: __________________________________
Title: _________________________________
Administration Agreement
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