Exhibit 4(f)
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SERVICING AGREEMENT
Dated as of September 25, 2003
by and between
GE COMMERCIAL EQUIPMENT FINANCING LLC,
SERIES 2003-1
as the Issuer
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as the Servicer
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Servicing Agreement
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND INTERPRETATION............................................................ 1
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.......... 1
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....................................... 5
Section 2.12. Accounts......................................................................... 5
Section 2.13. Liquidity 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............................................................ 6
Section 3.1. Representations and Warranties of the Servicer................................... 6
ARTICLE IV ADDITIONAL COVENANTS...................................................................... 7
Section 4.1. Covenants of the Servicer Regarding the Loans.................................... 7
ARTICLE V EVENTS OF SERVICER TERMINATION............................................................ 8
Section 5.1. Default.......................................................................... 8
ARTICLE VI SUCCESSOR SERVICER........................................................................ 8
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
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TABLE OF CONTENTS
(continued)
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ARTICLE VII INDEMNIFICATION........................................................................... 10
Section 7.1. Indemnities by the Servicer...................................................... 10
Section 7.2. Limitation of Damages; Indemnified Persons....................................... 10
ARTICLE VIII MISCELLANEOUS............................................................................. 10
Section 8.1. Notices.......................................................................... 10
Section 8.2. Binding Effect; Assignability.................................................... 11
Section 8.3. Termination; Survival of Obligations Upon Maturity Date or Redemption Date....... 11
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.............................................................. 12
Section 8.8. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL..................... 12
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............................................................... 14
Section 8.14. Pledge of Assets................................................................. 14
Section 8.15. Waiver of Setoff................................................................. 15
Exhibit A Form of Servicer's Certificate
Servicing Agreement
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This SERVICING AGREEMENT, dated as of September 25, 2003 (this
"Agreement" or "Servicing Agreement"), by and between GE COMMERCIAL EQUIPMENT
FINANCING LLC, SERIES 2003-1, 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.
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 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 Servicer Advances
owing to the Servicer with respect to all preceding Collection Periods.
(b) The Servicer may, but shall have no obligation to,
make a Servicer 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 Servicer 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 Servicer 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
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 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 Certificate. Loans to be
repurchased by
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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 Cutoff Date to December 31, 2004) 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, the Seller or any other
Affiliate of either the Seller or Servicer, as applicable, to deliver to the
Issuer on or before March 15 of each year 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 Cutoff Date to
December 31, 2004). 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.
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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 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 Liquidity 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. Liquidity Account. The Servicer shall determine the
Specified Liquidity Account Balance and the Outstanding Unfunded Capital
Commitment for each Payment Date.
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 Servicer 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
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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; 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 misfeasance, 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.
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(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 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 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, and (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 Balance in respect of any
Loans; provided that no one other than the Servicer, subject to any
other arrangements made by the Issuer, will contact an Obligor unless
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, and
(ii) allow the Issuer to occupy the premises of the Servicer where such
books, records and Records are maintained, and (iii) to 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, 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.
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(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 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 in 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
Liquidity 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 the Servicer's
interest therein or to have replaced the 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
Servicing Agreement
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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
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Issuer:
GE Commercial Equipment Financing LLC, Series 2003-1
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Capital Markets Operations
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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 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
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B Note 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, 8.5 and 8.13 shall be
continuing and shall survive the later of the Class B Note Maturity Date or the
Redemption Date, as applicable. Following the final distribution date of the
Issuer Variable Funding Certificate, the Servicer shall promptly provide written
notice to the Managing Member of a notice of termination of the Issuer's
obligations.
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 B Note 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 8.7.
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.
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 and 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
Servicing Agreement
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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 9.1 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.
(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.
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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 2.13 (provided that such accrued obligations shall not be
extinguished until paid in full).
(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
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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
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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.
GECF EQUIPMENT FINANCING LLC,
SERIES 2003-1
BY: CEF EQUIPMENT HOLDING, L.L.C.,
ITS MANAGING MEMBER
By:
----------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
----------------------------------
Name:
Title:
Servicing Agreement
EXHIBIT A
to Servicing Agreement
FORM OF SERVICER'S CERTIFICATE
[______________________]
[______________________]
[______________________]
Attention: [________________________]
[__________________]
[__________________]
[__________]
[__________________]
Attention: [___________________________]
[SELLER NAME]
[SELLER ADDRESS]
Attention: Secretary
▇▇▇▇▇'▇ Investors Service, Inc.
ABS Monitoring Department
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Standard & Poor's Ratings Services,
A division of ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Surveillance Department
Servicing Agreement
B-1
EXECUTION COPY
--------------------------------------------------------------------------------
ANNEX A
to
SERVICING AGREEMENT
dated as of
September 25, 2003
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 September 25, 2003, 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 Seller 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, extension fees 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 Payments
Incoming and any
Annex A to
Servicing Agreement
Swap Termination Payments received pursuant to the Swap Agreements 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 during 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.
"Bankruptcy Code" means the provisions of title 11 of the United States
Code, 11 U.S.C. Sections 101 et seq.
"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.
"CEF Variable Funding Certificate" means the Variable Funding
Certificate issued by CEF Equipment Holding, L.L.C. pursuant to the Series
2003-1 LLC Supplement.
"Certificateholder" means a Person in whose name a Certificate is
registered.
"Class B Note Maturity Date" means November 20, 2011 (or, if such day
is not a Business Day, the next succeeding Business Day thereafter).
"Closing Date" means September 25, 2003.
"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, with respect to each type of Loan, the policies, practices and procedures
of the commercial equipment financing division of General Electric Capital
Corporation, as adopted by the Issuer for providing equipment financing,
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, as such policies
and procedures, as applicable, may be amended from time to time.
"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, 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.
"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.
"Indenture" means the Indenture, dated September 25, 2003, 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, 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 tot Section 8.5(a) of the Indenture.
"Issuer" means GE Commercial Equipment Financing LLC, Series 2003-1, 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 Variable Funding Certificate" means the Variable Funding
Certificate issued by the Issuer pursuant to the Limited Liability Company
Agreement of September 25, 2003.
"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.
"Limited Liability Company Agreement" means the Limited Liability
Company Agreement of the Issuer, dated as of September 25, 2003, among the
Managing Member and the Issuer, as the same may be amended or supplemented from
time to time.
"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.
Annex A to
Servicing Agreement
-4-
"Liquidity Account" means the account designated as such, established
and owned by the Issuer and maintained in accordance with Section 8.2 of the
Indenture.
"Liquidity Account Funding Event" has the meaning specified in Section
3.13 of the Indenture.
"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 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.
"Maturity Date" is defined in the Indenture.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor
thereto.
"Note Balance" is defined in the Indenture.
"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 the Indenture.
"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.
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"Outstanding Principal Balance" is defined in the Indenture.
"Outstanding Unfunded Capital Commitment" means, with respect to each
Variable Funding Certificateholder on a Payment Date, the Variable Funding
Capital Commitment of such Person reduced by the aggregate amount of capital
contributions made by such Person prior to such Payment Date. If on any Payment
Date the Outstanding Unfunded Capital Commitment is less than the Variable
Funding Capital Commitment, the Outstanding Unfunded Capital Commitment shall be
increased on such Payment Date to the extent of Amounts Available for
Distribution (as defined in the Indenture) on such Payment Date, provided that
in no event shall the Outstanding Unfunded Capital Commitment after any such
increase exceed the Variable Funding Capital Commitment.
"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 October 20,
2003.
"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 that certain Loan Purchase and Sale
Agreement, dated as of September 25, 2003 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 the Seller pursuant to Section 7.2 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.
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"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 that such action
will result in a reduction or withdrawal of the then current rating of any Class
of the Notes.
"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
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 Collection Period Loan Value" means, with respect to any
Payment Date, an amount equal to the Loan Value in the Collection Account as of
the Transfer Date which were received by the Servicer during the related
Collection Period, including all Liquidation Proceeds so received but excluding
any Purchase Amounts with respect to Purchased Loan.
"Related Documents" means the Sale Agreement, the Purchase and Sale
Agreement, the Servicing Agreement, the Indenture, the Limited Liability
Agreement, the Variable Funding Certificates, the CEF Limited Liability Company
Agreement, the Administration Agreement, the Note Depository Agreement, the Swap
Agreements, 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.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"Sale Agreement" means the Loan Sale Agreement, dated September 25,
2003, between Seller and the Transferor.
"Schedule of Loans" is the schedule of Loans attached as Schedule I to
each of the Sale Agreement and the Purchase and Sale Agreement (which schedule
may be in the form of microfiche).
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"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 GE Capital, a Delaware corporation, its successors and
assigns.
"Series 2003-1 LLC Supplement" means the Series 2003-1 LLC Supplement
to the Second Amended and Restated Limited Liability Company of CEF Equipment
Holding, L.L.C., dated as of September 25, 2003.
"Servicer" means each of GE Capital, in its capacity as Servicer under
this Agreement, or any other Person designated as a Successor Servicer.
"Servicer 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.
"Servicer Default" means an event specified in Section 5.1 of the
Servicing Agreement.
"Servicer Indemnified Person" is defined in Section 7.1.
"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 Agreement" means the Servicing Agreement, dated as of
September 25, 2003 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
Annex A to
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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.
"Specified Liquidity Account Balance" as of any date on and after the
occurrence of a Liquidity Account Funding Event, means an amount equal to the
lesser of (x) $13,193,123 and (y) the Outstanding Principal Balances of the
Class A-4 and Class B Notes as of such date and, at any time prior to the
occurrence of such event, zero.
"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 the Servicer and any Sub-Servicer pursuant to and in accordance with
Section 2.12 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.
"Variable Funding Capital Commitment" as of any date means an amount
equal to the lesser of (x) $13,193,123 and (y) the sum of the Outstanding
Principal Balances of the Class A-4 and Class B Notes (each as defined in the
Indenture) as of such date.
"Variable Funding Certificateholder" is defined in the Indenture.
"Variable Funding Certificates" is defined in the Indenture.
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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
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