EXHIBIT 4(b)
SERIES 2003-1 SUPPLEMENT TO THE SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT OF CEF EQUIPMENT HOLDING,
L.L.C.
SERIES 2003-1 SUPPLEMENT, dated as of September 25, 2003, by
and between General Electric Capital Services, Inc., as Manager (the "Manager")
and General Electric Capital Services, Inc., as holder of the Series 2003-1
Variable Funding Certificate (as defined below) (this "Series 2003-1
Supplement") to the Second Amended and Restated Limited Liability Company
Agreement, dated as of September 25, 2003 (as amended, modified or supplemented
from time to time, the "Base LLC Agreement"), of CEF Equipment Holding, L.L.C.
(the "Company").
PRELIMINARY STATEMENT
WHEREAS, Section 7.4 of the Base LLC Agreement provides, among
other things, that the Manager may from time to time enter into a series
supplement to the Base LLC Agreement (each, a "Series Supplement") for the
purpose of issuing a Series of Variable Funding Certificates.
NOW, THEREFORE, the parties hereto agree as follows:
DESIGNATION
There is hereby created a Series of Variable Funding
Certificates to be issued pursuant to the Base LLC Agreement and this Series
2003-1 Supplement and such Series of Variable Funding Certificate shall be
designated and referred to herein as the "Series 2003-1 Variable Funding
Certificate". The sole Series 2003-1 Variable Funding Certificate shall be
issued to General Electric Capital Services, Inc., as holder of the Series
2003-1 Variable Funding Certificate.
ARTICLE I
DEFINITIONS
(a) All capitalized terms not otherwise defined herein
are defined in the Base LLC Agreement. Unless otherwise provided herein or if
such term is otherwise defined in the Base LLC Agreement, each capitalized term
used or defined herein shall relate only to the Series 2003-1 Variable Funding
Certificate and not to any other Series of Variable Funding Certificate issued
by the Company.
(b) The following words and phrases shall have the
meanings set forth below with respect to the Series 2003-1 Variable Funding
Certificate and the definitions of such terms are applicable to the singular as
well as the plural form of such terms:
"Amounts Available for Distribution" means, on each Payment
Date, all funds received by the Issuer from whatever source with respect to the
related Securitized Pool and available for distribution after the payment of all
obligations of the Issuer payable on such Payment Date with respect to the
related Securitized Pool.
Series 2003-1 LLC Agreement Supplement
"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.
"Issuer" means GE Commercial Equipment Financing LLC, Series
2003-1.
"Outstanding Unfunded Capital Commitment" means, as of any
date of determination, (i) the Variable Funding Capital Commitment reduced by
(ii) the aggregate amount of capital contributions made by holder of the Series
2003-1 Variable Funding Certificate pursuant to Section 2.2 hereof and Section
10.2 of the Base LLC Agreement. 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 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 the 20th day of each calendar month or,
if such day is not a Business Day, the next Business Day, commencing on October
20, 2003.
"Variable Funding Capital Commitment" means, as of any date of
determination, an amount equal to $13,193,123, or such lesser amount as the
Company may instruct the holder of the Series 2003-1 Variable Funding
Certificate from time to time in accordance with the related Transaction
Documents.
ARTICLE II
SERIES 2003-1
With respect to the Series 2003-1 Variable Funding
Certificate, the following shall apply:
SECTION 2.1 ISSUANCE OF THE SERIES 2003-1 VARIABLE FUNDING
CERTIFICATE.
The Manager, on behalf of the Company, will issue a
certificate evidencing the Series 2003-1 Variable Funding Certificate in
substantially the form set forth as Exhibit A to this Series 2003-1 Supplement
to General Electric Capital Services, Inc., on the date hereof.
SECTION 2.2 CAPITAL CONTRIBUTIONS
The holder of the Series 2003-1 Variable Funding Certificate,
by its execution hereof, hereby (i) agrees to contribute capital to the Company
from time to time in accordance with Section 10.2 of the Base LLC Agreement,
(ii) agrees it is bound by the Base LLC Agreement as supplemented hereby, and
(iii) is admitted to the Company as a Member.
SECTION 2.3 DISTRIBUTION PAYMENTS.
Amounts Available for Distribution with respect to the Series
2003-1 Variable Funding Certificate shall be payable, on each Payment Date, in
accordance with Section 11.2 of the Base LLC Agreement to the holder of the
Series 2003-1 Variable Funding Certificate.
Series 2003-1 LLC Series Supplement
2
SECTION 2.4 REDEMPTION
Following the reduction of the Variable Funding Capital
Commitment to zero by the Company, the Series 2003-1 Variable Funding
Certificate shall be delivered to the Manager by each holder thereof and shall
thereby be redeemed by the Company. To the extent of the holder of the Series
2003-1 Variable Funding Certificate shall have failed to be reimbursed for any
capital contribution made by it hereunder, the holder shall remain a Member of
the Company, shall be deemed to have made a capital contribution to the Company
in the amount of such deficiency and shall be entitled to distributions on
account thereof in accordance with Section 11.1 of the Base LLC Agreement.
ARTICLE III
TRANSFER OF CERTIFICATE
SECTION 3.1 FORM, DENOMINATION AND TRANSFER
The Series 2003-1 Variable Funding Certificate will be issued
in fully registered, certificated form to General Electric Capital Services Inc.
substantially in the form attached as Exhibit A. The Series 2003-1 Variable
Funding Certificate has not been and will not be registered under the Securities
Act or under the securities or blue sky laws of any state in the United States.
The holder of the Series 2003-1 Variable Funding Certificate may not sell,
transfer or assign the Series 2003-1 Variable Funding Certificate without the
Consent of the Company or its permitted successors and assigns.
ARTICLE IV
GENERAL
SECTION 4.1 RATIFICATION OF BASE LLC AGREEMENT.
As supplemented by this Series 2003-1 Supplement, the Base LLC
Agreement is in all respects ratified and confirmed and the Base LLC Agreement
as so supplemented by this Series 2003-1 Supplement shall be read, taken, and
construed as one and the same instrument.
SECTION 4.2 COUNTERPARTS.
This Series 2003-1 Supplement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all of such counterparts shall together constitute but one and the same
instrument.
SECTION 4.3 GOVERNING LAW.
THIS SERIES 2003-1 SUPPLEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING
EFFECT TO THE PROVISIONS THEREOF REGARDING CONFLICTS OF LAWS.
Series 2003-1 LLC Series Supplement
3
SECTION 4.4 AMENDMENTS.
This Series 2003-1 Supplement may be modified or amended from
time to time in accordance with the terms of the Base LLC Agreement; provided
that no such modifications or amendment shall be inconsistent with the Base LLC
Agreement.
Series 2003-1 LLC Series Supplement
4
IN WITNESS WHEREOF, the parties hereto have caused this Series
2003-1 Supplement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
GENERAL ELECTRIC CAPITAL SERVICES,
INC. as Manager
By: _________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL SERVICES,
INC. as holder of the Series 2003-1
Variable Funding Certificate
By: _________________________________
Name:
Title:
Series 2003-1 LLC Agreement Supplement
S-1
EXHIBIT A
FORM OF SERIES 2003-1 VARIABLE FUNDING CERTIFICATE
THIS SERIES 2003-1 VARIABLE FUNDING CERTIFICATE HAS NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION IN RELIANCE ON EXEMPTIONS PROVIDED BY THE 1933 ACT AND SUCH STATE
OR FOREIGN SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF THIS SERIES 2003-1
VARIABLE FUNDING CERTIFICATE SHALL BE MADE.
THE HOLDER OF THIS SERIES 2003-1 VARIABLE FUNDING CERTIFICATE HEREOF IS
REQUIRED TO MAKE CAPITAL CONTRIBUTIONS REQUESTED BY THE COMPANY (OR BY CERTAIN
OTHER PERSONS REFERRED TO HEREIN) UP TO ITS PERCENTAGE INTEREST OF THE VARIABLE
FUNDING CAPITAL COMMITMENT. THE OUTSTANDING UNFUNDED CAPITAL COMMITMENT OF THE
SERIES 2003-1 VARIABLE FUNDING CERTIFICATE AT ANY TIME MAY BE LESS THAN SUCH
MAXIMUM AMOUNT.
THIS SERIES 2003-1 VARIABLE FUNDING CERTIFICATE IS NOT AN OBLIGATION
OF, AND WILL NOT BE INSURED OR GUARANTEED BY, ANY GOVERNMENTAL AGENCY, GENERAL
ELECTRIC CAPITAL CORPORATION, GENERAL ELECTRIC CAPITAL SERVICES, INC. OR ANY OF
THEIR RESPECTIVE AFFILIATES.
Series 2003-1 LLC Agreement Supplement
CEF EQUIPMENT HOLDING, L.L.C.
SERIES 2003-1 VARIABLE FUNDING CERTIFICATE
With a Percentage Interest of 100%
and
Representing a Maximum Amount
outstanding at any time not to exceed the Percentage Interest
of the Variable Funding Capital Commitment
This certifies that GENERAL ELECTRIC CAPITAL SERVICES, INC. (the
"Holder") is the registered owner of this Series 2003-1 Variable Funding
Certificate as described in the Amended and Restated Limited Liability Company
Agreement of CEF Equipment Holding, L.L.C. (the "Base LLC Agreement") dated as
of September 25, 2003 and the Series Supplement related thereto dated as of
September 25, 2003 (the "Series Supplement"), as each may be amended or
supplemented from time to time. Capitalized terms used herein and not defined
herein shall have the meanings ascribed thereto in the Series Supplement.
This Series 2003-1 Variable Funding Certificate represents the
Percentage Interest specified above of the series of limited liability company
interests in the company designated as the Series 2003-1 Variable Funding
Certificate, including any distributions from the Company pursuant to Section
11.2 of the Base LLC Agreement. All of the provisions of the Base LLC Agreement
and the Series Supplement are incorporated by reference and comprise integral
parts of this Series 2003-1 Variable Funding Certificate. The following summary
of certain provisions thereof is not and does not purport to be complete. By its
acceptance hereof, the Holder of this Series 2003-1 Variable Funding Certificate
assents to and is bound by the terms, provisions and conditions of the Base LLC
Agreement and the Series Supplement, including the provisions thereof (i)
setting forth the obligation of the Holder of this Series 2003-1 Variable
Funding Certificate to make capital contributions as and when properly requested
pursuant to Section 10.2 of the Base LLC Agreement and (ii) specifying that this
Series 2003-1 Variable Funding Certificate is payable only from certain funds of
the Company that are available for such purpose in accordance with Section 11.2
of the Base LLC Agreement.
Subject to the more detailed provisions concerning payments to be made
to the Holder of the Series 2003-1 Variable Funding Certificate set forth in the
Base LLC Agreement and the Series Supplement, distributions to the Holder of
this Series 2003-1 Variable Funding Certificate will be made on the 20th day of
each calendar month, or if such day is not a Business Day, then on the next
succeeding Business Day, to the extent funds are available therefor.
THE HOLDER MAY NOT TRANSFER, ASSIGN OR CONVEY THIS SERIES 2003-1
VARIABLE FUNDING CERTIFICATE, OR ANY INTEREST THEREIN, WITHOUT THE CONSENT OF
THE COMPANY OR ITS PERMITTED
Series 2003-1 LLC Agreement Supplement
SUCCESSORS AND ASSIGNS. The Company will maintain a register in which it will
record the name and contact information for each Holder. No transfer, assignment
or conveyance of this Series 2003-1 Variable Funding Certificate, or any
interest therein, will be effective prior to notice to the Company and
recordation by the Company thereof in such register.
THIS VARIABLE FUNDING CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE.
Series 2003-1 LLC Agreement Supplement
IN WITNESS WHEREOF, the Company has caused this Series 2003-1 Variable
Funding Certificate to be duly executed.
CEF EQUIPMENT HOLDING,
L.L.C., as Issuer
By: GENERAL ELECTRIC CAPITAL
SERVICES, INC., not in its individual
capacity but solely in its capacity
as Manager
By: _________________________________
Name:
Title:
Dated: September 25, 2003
Series 2003-1 LLC Agreement Supplement