SERVICING AGREEMENT

 

 

 

SERVICING AGREEMENT

 

Dated as of [●] [●], 201[●]

 

by and between

 

[●]

 

as the Issuer

 

and

 

GE CAPITAL BANK,

 

as the Servicer

 

 

  

 

 

Table of Contents
     
    Page
     
ARTICLE I DEFINITIONS AND INTERPRETATION  
     
Section 1.1. Definitions 1
     
Section 1.2. Other Interpretive Matters 1
     
ARTICLE II APPOINTMENT OF THE SERVICER; CERTAIN DUTIES AND RESPONSIBILITIES OF THE SERVICER  
     
Section 2.1. Appointment of the Servicer 1
     
Section 2.2. Duties and Responsibilities of the Servicer 2
     
Section 2.3. Unrelated Amounts 2
     
Section 2.4. Authorization of the Servicer 2
     
Section 2.5. Servicing Fee and Servicing Advance. 3
     
Section 2.6. Covenants of the Servicer 4
     
Section 2.7. Servicer’s Certificate 4
     
Section 2.8. Annual Statement as to Compliance; Notice of Default 5
     
Section 2.9. Annual Reports on Assessment of Compliance with Servicing Criteria 5
     
Section 2.10. Appointment of Subservicer 5
     
Section 2.11. Maintenance of Security Interests in [Loans] [Receivables] 6
     
Section 2.12. Accounts 6
     
Section 2.13. Reserve Account 7
     
Section 2.14. Disbursement from the Collection Account 7
     
Section 2.15. Limitation on Liability of the Servicer and Others 7
     
ARTICLE III REPRESENTATIONS AND WARRANTIES  
     
Section 3.1. Representations and Warranties of the Servicer 7
     
ARTICLE IV ADDITIONAL COVENANTS  
     
Section 4.1. Covenants of the Servicer Regarding the [Loans] [Receivables] 8
     
ARTICLE V EVENTS OF SERVICER TERMINATION  
     
Section 5.1. Default 9
     
ARTICLE VI SUCCESSOR SERVICER  
     
Section 6.1. Resignation of the Servicer 10
     
Section 6.2. Appointment of the Successor Servicer 11
     
Section 6.3. Duties of the Servicer 11

 

 

 

Table of Contents
(continued)
     
    Page
     

Section 6.4. Effect of Termination or Resignation 11
     
ARTICLE VII INDEMNIFICATION  
     
Section 7.1. Indemnities by the Servicer 12
     
Section 7.2. Limitation of Damages; Indemnified Persons 12
     
ARTICLE VIII MISCELLANEOUS  
     
Section 8.1. Notices 13
     
Section 8.2. Binding Effect; Assignability 14
     
Section 8.3. Termination; Survival of Obligations Upon Class C Maturity Date or Redemption Date 14
     
Section 8.4. No Proceedings 14
     
Section 8.5. Complete Agreement; Modification of Agreement 14
     
Section 8.6. Amendments and Waivers 14
     
Section 8.7. No Waiver; Remedies 14
     
Section 8.8. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL 15
     
Section 8.9. Counterparts 16
     
Section 8.10. Severability 16
     
Section 8.11. Section Titles 16
     
Section 8.12. Limited Recourse 16
     
Section 8.13. Further Assurances 17
     
Section 8.14. Pledge of Assets 17
     
Section 8.15. Waiver of Setoff 17
     
     
Annex A Definitions and Interpretation  

 

 

 

 

This SERVICING AGREEMENT, dated as of [●] [●], 201[●] (this “Agreement”), by and between [●], a [limited liability company] [statutory trust] organized under the laws of the State of Delaware (the “Issuer”), and GE CAPITAL BANK (f/k/a GE Capital Financial Inc.), a Utah-chartered industrial bank (“GE Capital Bank”), in its capacity as the servicer hereunder (the “Servicer”).

 

In consideration of the premises and the mutual covenants hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I

 

DEFINITIONS AND INTERPRETATION

 

Section 1.1. Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in Section 1 of Annex A to this Agreement.

 

Section 1.2. Other Interpretive Matters. For purposes of this Agreement, the other interpretive matters set forth in Section 2 of Annex A shall govern. All exhibits, schedules, and other attachments hereto, or expressly identified hereto are incorporated herein by reference and, taken together with this Agreement, shall constitute but a single agreement.

 

ARTICLE II

 

APPOINTMENT OF THE SERVICER; CERTAIN DUTIES
AND RESPONSIBILITIES OF THE SERVICER.

 

Section 2.1. Appointment of the Servicer. The Issuer hereby appoints the Servicer as its agent to service [and manage] the [Loans] [Receivables Assets] and enforce its rights and interests in and under the [Loans] [Receivables Assets] 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 in this Agreement. The parties hereto acknowledge that the Servicer has entered into the Consolidated Subservicing Agreement with GE Capital, and agree that all the [Loans] [Receivables Assets] shall initially be subserviced [and managed] by GE Capital pursuant to the terms thereof. In addition to the foregoing, the Servicer may, upon giving prior written notice to the Issuer, delegate any of its duties under this Agreement to any Person, or subcontract with any other Sub-Servicer, in addition to or in lieu of GE Capital, for the collection, [management,] servicing or administration of the [Loans] [Receivables Assets]; provided, that with respect to the Consolidated Subservicing Agreement and each other Sub-Servicing Agreement (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) the Consolidated Subservicing Agreement and any other Sub-Servicing Agreement that may be entered into and any other transactions or services relating to the [Loans] [Receivables Assets] involving a Sub-Servicer shall be deemed to be between the applicable Sub-Servicer and the Servicer alone, and the Issuer shall not be deemed

 

  Servicing Agreement
 

 

party thereto and shall have no obligations, duties or liabilities with respect to any such Sub-Servicer.

 

Section 2.2. Duties and Responsibilities of the Servicer. Subject to the provisions of this Agreement, the Servicer shall conduct the servicing, [management,] administration and collection of the [Loans] [Receivables Assets] and shall take, or cause to be taken, all actions that (a) may be necessary or advisable to service, [manage,] administer and collect the [Loans] [Receivables Assets] from time to time, (b) the Servicer would take if such [Loans] [Receivables Assets] were owned by the Servicer, and (c) are consistent with the Credit and Collection Policies. The Servicer shall also perform on behalf of, and as directed by, the Issuer all of the Issuer’s obligations under the Indenture other than any obligations to pay money and any obligations to be performed by the Administrator under the Administration Agreement. [Management of Equipment shall include realization of the Residual if and in the manner permitted under the related Contract and in accordance with the Credit and Collection Policies. To the extent realization of any Residual is permitted under the related Contract, the Servicer shall arrange for a sale, re-lease, continued use or other disposition of Equipment.]

 

Section 2.3. Unrelated Amounts. If the Servicer determines that amounts which are not property of the Issuer or are not due to 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 and withdraw the Unrelated Amounts from the Collection Account. Unrelated Amounts shall not be treated as Available Amounts on [Loans] [Receivables Assets] 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 or beneficial interest in, as applicable] the [Loans] [Receivables Assets] by the Issuer and pledge of [the Loans] [[the] Receivables Assets] to the Indenture Trustee under the Indenture, in the determination of the Servicer, to (a) [remarket, or arrange for the remarketing of Equipment and take all other action thereto (including the refurbishment and sale or release thereof), (b)] collect all amounts due under the [Loans] [Receivables Assets], including endorsing its name on checks and other instruments representing Available Amounts on the [Loans] [Receivables Assets], 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] [Receivables Assets], and consistent with its normal procedures, arranging with the Obligor to extend or modify Scheduled Payments in its discretion, and [(c)] after the [Loans] [Receivables] 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] [Receivables and the related Receivables Assets], (ii) adjust, settle or compromise any payments due thereunder, and (iii) initiate proceedings against any Collateral securing the obligations due under any such [Loans] [Receivables and the related Receivables Assets], in each case, consistent with the Credit and Collection Policies; provided, that, with respect to clause [(b)] [and] [(c)] 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] [Receivable] if such modification has a Material Adverse Effect on the Noteholders; and provided, further, that in no event will

 

 -2-Servicing Agreement
 

 

such modification be permitted to extend the final payment date beyond the Class C Maturity Date.

 

Upon the request of an Obligor, and consistent with the Credit and Collection Policies, the Servicer, on behalf of the Issuer, shall permit such Obligor to terminate a Contract; provided, that the Obligor shall have paid the Termination Value, of which the portion attributable to the remaining payments for a Contract (as calculated by the Servicer) shall constitute and be treated as Available Amounts in respect of the related [Loan] [Receivable].

 

If the Servicer shall commence a legal proceeding to enforce a [Loan] [Receivable], the Issuer (in the case of a [Loan] [Receivable] other than a [Purchased] [Removed] [Loan] [Receivable]) shall thereupon be deemed to have automatically assigned, solely for the purpose of collection, such [Loan] [Receivable] [or, in the case of a SUBI Receivable, a beneficial interest in such SUBI Receivable] to the Servicer. If in any enforcement suit or legal proceeding it shall be held that the Servicer may not enforce a [Loan] [Receivable] on the ground that it shall not be a real party in interest or a holder entitled to enforce such [Loan] [Receivable], then, the Managing Member shall take steps to enforce such [Loan] [Receivable], including bringing suit in the name of the Issuer [or the Titling Trust, as applicable].

 

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[, equipment management] and administrative duties hereunder, and the Issuer shall assist the Servicer to the fullest extent required and possible, to enable the Servicer to collect the [Loans] [Receivables and the other Receivables Assets] and otherwise discharge its duties hereunder. In no event shall the Servicer be entitled to make the Issuer [or the Titling Trust, as applicable] a party to any litigation without the Issuer’s [or the Titling Trust’s] express prior written consent.

 

Section 2.5. Servicing Fee and Servicing Advance.

 

(a)          As compensation for its servicing [and equipment management] activities and as reimbursement for its reasonable expenses in connection therewith, the Servicer shall be entitled to receive the Servicing Fee for each Collection Period. The Servicer shall be entitled to be reimbursed out of proceeds of dispositions of Equipment for any costs, fees and expenses for the refurbishment, remarketing, leasing, re-leasing, selling or disposing of such Equipment in accordance with Section 2.2 (which may include fees and expenses paid by the Servicer to third-parties in connection with such refurbishment, remarketing, leasing, re-leasing, selling or disposing of Equipment if such third-parties are engaged to undertake such sale). Except as provided in the two preceding sentences, 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 Fee. The Servicer shall also be entitled to reimbursement for any outstanding Servicing Advance owing to the Servicer with respect to all preceding Collection Periods.

  

(b)          The Servicer may, but shall have no obligation to, make a Servicing Advance in the manner and to the extent provided herein, but only to the extent the

 

 -3-Servicing Agreement
 

 

Servicer, in its sole discretion, expects to be reimbursed for such Servicing Advance. If the Servicer elects to make a Servicing Advance, prior to the close of business on each Determination Date, the Servicer will determine the amount of the Servicing Advance that it has elected to make on the related Transfer Date. The Servicer shall include information as to such determination in the Servicer’s Certificate furnished by it in accordance with Section 2.7 and shall be obligated to transfer to the Collection Account on or before 11:00 a.m. (New York City time) on the related Transfer Date in next day funds the amounts applicable to such determinations appearing in such Servicer’s Certificate. All Servicing Advances shall be reimbursable to the Servicer, without interest, when a payment relating to a [Loan] [Receivable] with respect to which Servicing 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 Servicing Advances from Available Amounts on or in respect of other Receivables.

 

Section 2.6. Covenants of the Servicer. The Servicer covenants and agrees that from and after the Closing Date and until the earlier of the Class C Maturity Date or Redemption Date, as applicable:

 

(a)          Ownership of [Loans] [Receivables and Related Equipment]. The Servicer shall identify the [Loans] [Receivables] clearly and unambiguously in its Servicing Records to reflect that such [Loans] [Receivables and, if applicable, the related Equipment are owned by the Issuer [or, in the case of SUBI Assets, beneficially owned by the Issuer] and have been pledged to the Indenture Trustee under the Indenture [or, in the case of any SUBI Assets, to reflect that SUBI Assets are pledged to the Titling Trust Collateral Agent for the benefit of the Indenture Trustee under the Titling Trust Collateral Agency Agreement].

 

(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] [Receivables Assets] and in all material respects with applicable law with respect to the [Loans] [Receivables Assets], unless, in either case, such failure to comply would not be reasonably expected to cause a Material Adverse Effect on the Servicer or the Issuer.

 

Section 2.7. Servicer’s Certificate. On each Determination Date the Servicer shall deliver, or arrange to be delivered, 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 and the deposits to, or withdrawals from, the Reserve Account pursuant to Section 2.13, for the Collection Period preceding the date of such Servicer’s Certificate. Receivables and related Equipment to be [repurchased] [removed] by the Seller shall be identified by the Servicer by account number with respect to such [Loan] [Receivable and (if applicable) its related Equipment] (as specified in the relevant Schedule of [Loans] [Receivables] [or on Annex A to the Series 201[●]-[●] SUBI, as applicable,] delivered on the Closing Date).

 

 -4-Servicing Agreement
 

 

Section 2.8. Annual Statement as to Compliance; Notice of Default.

 

(a)          On or before [March 15] of each calendar year (beginning 201[●]), the Servicer shall deliver, or arrange to be delivered, to the Issuer, with a copy to the Indenture Trustee, an Officer’s Certificate stating that: (i) a review of the activities of the Servicer during the preceding calendar year (or, in the case of the first such certificate, from the Cut-off Date to [December 31], 201[●]) and of its performance under this Agreement has been made under such officer’s supervision and (ii) to the best of such officer’s knowledge, based on such review, such Servicer has fulfilled all of its obligations under this Agreement throughout such year or, if there has been a failure to fulfill any such obligation in any material respect, specifying each such failure known to such officer and the nature and status thereof.

 

(b)          The Servicer shall deliver , or arrange to be delivered, to the Issuer, with a copy to the Indenture Trustee, promptly after having obtained knowledge thereof, but in no event later than five (5) Business Days thereafter, written notice in an Officer’s 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 Reports on Assessment of Compliance with Servicing Criteria. On or before [March 15] of each calendar year of the Issuer (commencing with the calendar year 201[●]), each Reporting Servicer shall furnish, and shall cause each Servicing Function Participant with which it has entered into a servicing relationship with respect to the [Loans] [Receivables Assets] to furnish, to the Issuer, with a copy to the Indenture Trustee, a report on assessment of compliance with the Servicing Criteria that contains (A) a statement by such Reporting Servicer of its responsibility for assessing compliance with the Servicing Criteria applicable to it, (B) a statement that such Reporting Servicer used the Servicing Criteria to assess compliance with the applicable Servicing Criteria, (C) such Reporting Servicer’s assessment of compliance with the applicable Servicing Criteria as of and for the period ending [December 31 of the prior calendar year], including, if there has been any material instance of noncompliance with the applicable Servicing Criteria, a discussion of each such failure and the nature and status thereof, and (D) a statement that a registered public accounting firm has issued an attestation report on such Reporting Servicer’s assessment of compliance with the applicable Servicing Criteria as of and for such period; such attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the Securities Exchange Act and shall be provided as an exhibit to such Reporting Servicer’s report on assessment of compliance with the Servicing Criteria.

 

Section 2.10. Appointment of Subservicer. In addition to, or in lieu of, the appointment of GE Capital as Sub-Servicer under the Consolidated Subservicing Agreement, the Servicer may at any time appoint any other Sub-Servicer to perform all or any portion of its obligations as Servicer hereunder; provided, that, in any event the Servicer delegates or sub-services any of its duties under this Agreement, the Servicer shall remain obligated and be liable to the Issuer, for the servicing and administering of the [Loans] [Receivables and the managing of the related Equipment] in accordance with the provisions hereof, without diminution of such obligations and liabilities by virtue of the appointment of any Sub-Servicer and to the same extent and under the same terms and conditions as if the Servicer itself were servicing and administering the [Loans]

 

 -5-Servicing Agreement
 

 

[Receivables and/or managing the related Equipment, as applicable]. The fees and expenses of any Sub-Servicer shall be as agreed between the Servicer and such Sub-Servicer from time to time and the Issuer shall not have any responsibility therefor.

 

Section 2.11. Maintenance of Security Interests in [Loans] [Receivables]. 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] [Receivable] 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 and any amendments thereto 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 the Servicer’s obligation to maintain perfection of the security interest in any Equipment that is not a SUBI Asset pursuant to this Section 2.11 [or, solely as it pertains to Equipment that is a SUBI Asset, upon receipt of a notification by the Issuer or the Servicer that the Titling Trust Collateral Agent has breached its obligation to maintain perfection of the security interest in any such Equipment pursuant to Section 2(a) to the Titling Trust Collateral Agent Administration Agreement], which breach is reasonably likely to have a Material Adverse Effect on the Issuer, the party discovering or being notified the same, as applicable, shall give prompt written notice thereof to the other party. 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] [Receivables Assets] (measured at the end of the Collection Period during which such breach is discovered). Upon such payment, all rights, title and interest of the Issuer in and to such [Loans] [Receivables Assets] will be deemed to be automatically released without the necessity of any further action by the Issuer, the Servicer or any other party and all such rights, title and interest will become the property of the Servicer.

 

Section 2.12. Accounts. As of the Closing Date, the Servicer shall establish and maintain, on behalf of the Issuer and in accordance with the terms of the Indenture, the Collection Account and the Reserve Account, each of which shall be an Eligible Deposit Account in the name of the Issuer.

 

(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 (2) Business Days following any such Available Amounts Date of Processing.

 

 -6-Servicing Agreement
 

 

Section 2.13. Reserve Account. The Servicer shall determine the amounts for deposit into or for withdrawal from the Reserve Account on each Transfer Date in accordance with the provisions of Section 8.4 of the Indenture.

 

Section 2.14. Disbursement from the Collection Account. On each Transfer Date, the Servicer, on behalf of the Issuer, shall withdraw from the Collection Account for payment to itself an amount equal to any accrued but unpaid Servicing Fee and any accrued but unpaid Servicing Advance 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 the Servicer and Others. Neither the Servicer nor any of the directors, officers, employees or agents of the Servicer shall be under any liability to the Issuer or the Noteholders, except as provided under this Agreement, for any action taken or for refraining from the taking of any action pursuant to this Agreement or for errors in judgment; provided, however, that this provision shall not protect the Servicer or any such Person against any liability that would otherwise be imposed by reason of willful misconduct, bad faith or gross 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] [Receivables Assets] 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 and is duly qualified to do business, and is in good standing, in each jurisdiction in which the servicing of the [Loans] [Receivables and, if applicable, managing of the related Equipment] hereunder requires it to be so qualified, except where the failure to comply would not reasonably be expected to have a Material Adverse Effect on the Servicer.

 

 -7-Servicing Agreement
 

 

(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 insolvency, conservatorship, receivership 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 on the Servicer.

 

(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] [Receivables]. (a) Maintenance of Files. The Servicer shall, for not less than three (3) years or for such longer period as may be required by law, from the date on which any [Loan] [Receivable] is paid in full, maintain the Records with respect to each [Loan] [Receivable and, if applicable, its related Equipment,] including records of all payments received, credits granted and property returned. The Servicer will permit representatives of the Issuer or its designee at any reasonable time during normal business hours, and at such times outside of normal business hours as the Issuer shall reasonably request, (i) to inspect and make copies of, and abstracts from, such Records, (ii) to visit the properties of the Servicer utilized in connection with the collection, processing[, management] or servicing of the [Loans] [Receivables] for the purpose of examining such Records, and (iii) to discuss matters relating to the [Loans] [Receivables Assets] or the Servicer’s performance under this Agreement with any officer, employee or accountants of the Servicer having knowledge of such matters. In connection therewith, the Issuer shall institute procedures to permit it to confirm the Loan Value [or Lease Value, as applicable,] in respect of any [Loan] [Receivable and, if applicable, its related Equipment]; provided that no one other than the Servicer or any Sub-Servicer or Person to whom the Servicer has delegated duties in accordance with the terms of this Agreement, subject to any other arrangements made by the Issuer or its designee, as applicable, will contact an Obligor unless a Servicer Default has occurred.

 

 -8-Servicing Agreement
 

 

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 with respect to the [Loans] [Receivables Assets] 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] [Receivables Assets], including all [related] Records, (ii) allow the Issuer and its representatives to occupy the premises of the Servicer where such books, records and Records are maintained, and (iii) allow the Issuer to utilize such premises, the equipment thereon and any personnel of the Servicer that the Issuer may wish to employ to administer, service[, manage] and collect the [Loans] [Receivables Assets].

 

(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 of the [Loans] [Receivables Assets], other than any ownership interest or Lien created under the Sale Agreement[,] [or] the Purchase and Sale Agreement [or the Titling Trust Collateral Agency Agreement], any Lien created under the Indenture or any Permitted Encumbrances (as defined under the Sale Agreement or the Purchase and Sale Agreement, as applicable), and (ii) of the occurrence of any event known to it which would have a Material Adverse Effect on the aggregate value of the [Loan] [Receivable].

 

(d)          Further Assurances. The Servicer shall furnish to the Issuer from time to time such statements and schedules further identifying and describing the [Loans] [Receivables Assets] and such other reports in connection with the [Loans] [Receivables Assets] 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 (3) 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 thirty (30) 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

 

 -9-Servicing Agreement
 

 

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 sixty (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 [and equipment management] responsibilities of the Servicer hereunder [(but, for the avoidance of doubt, not with respect to any Leases and related Equipment included in the UTI or allocated to any Other SUBI, as applicable).] 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] [Receivables Assets] 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 the Servicer. The Servicer may resign under the circumstances set forth in clause (a) or (b) of this Section 6.1.

 

(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 or, for so long as the Servicer is GE Capital Bank, pursuant to a direction it received from the Federal Deposit Insurance Corporation or the Utah Department of Financial Institutions (a “Regulator Notice”), and (ii) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law or, in the case of GE Capital Bank, in accordance with any Regulator Notice, as applicable. Except in the case of a Regulator Notice, 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.

 

 -10-Servicing Agreement
 

 

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 thirty (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 [“Baa3” by Xxxxx’x]. 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 instruments in form and substance acceptable to the Issuer, and if directed by the Issuer, 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 the 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 [and equipment management] to the Successor Servicer, including timely delivery (i) to the Issuer of any funds that were required to be deposited in the Collection Account and the Reserve Account and (ii) to the Successor Servicer, at a place selected by the Successor Servicer, of all Servicing Records and other information with respect to the [Loans] [Receivables Assets]. 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 Consolidated Subservicing Agreement and each other Sub-Servicing Agreement that may have been entered into by it and the Successor Servicer shall not be deemed to have assumed any of such outgoing servicer’s interest therein or to have replaced such outgoing servicer as a party to the Consolidated Subservicing Agreement or any other such Sub-Servicing Agreement.

 

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.

 

 -11-Servicing Agreement
 

  

ARTICLE VII

 

INDEMNIFICATION

 

Section 7.1. Indemnities by the Servicer.

 

(a)          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 to the extent such Indemnified Amounts have been finally determined by a court of competent jurisdiction to have arisen from the Servicer’s material breach of its obligations hereunder; provided, that, no Servicer Indemnified Person shall be entitled to any indemnification under this Section 7.1(a) if the Indemnified Amount (i) resulted from bad faith, negligence or willful misconduct on the part of the Servicer Indemnified Person or (ii) constitutes recourse for uncollectible [Loans] [Receivables]. Furthermore, it is understood that the Servicer shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one (1) outside counsel for the applicable Servicer Indemnified Person. Any Indemnified Amounts indemnifiable pursuant to this Section 7.1(a) shall be paid to the Servicer Indemnified Person within ten (10) Business Days following demand therefor.

 

(b)          In the event any proceeding (including any governmental investigation) shall be instituted involving any Servicer Indemnified Person in respect of which indemnification may be sought pursuant to this Section 7.1(a), such Servicer Indemnified Person shall promptly notify the Servicer in writing. In any such proceeding, the Servicer shall have the right to retain its own counsel. The Servicer shall not be liable for any settlement of any proceeding effected without its written consent, but (i) if settled with such consent or (ii) with respect to any proceeding that has not settled, if the Servicer has received a prompt notice thereof from the applicable Servicer Indemnified Person and at the time of such notice, the Servicer could reasonably retain its own counsel to effectively be represented in such a proceeding, there be a final judgment for the plaintiff, then, in each case, the Servicer agrees to indemnify the applicable Servicer Indemnified Person from and against any loss or liability by reason of such settlement or judgment to the extent provided herein.

 

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.

 

 -12-Servicing Agreement
 

 

ARTICLE VIII

 

MISCELLANEOUS

 

Section 8.1. Notices. All notices to be given in connection with this Agreement shall be in writing, shall be addressed to the intended recipient at its address set forth in this Section 8.1 (unless and until a different address may be specified in a written notice to the other party), and shall be deemed given on the earlier to occur of (i) the date of actual receipt, (ii) the date that delivery is expressly refused by the intended recipient or (iii) if the notifying party has not been able to locate the intended recipient for delivery of notice, either by hand delivery, overnight courier, certified mail or other method that provides reasonable proof of delivery or refusal thereof, the fourth (4th) Business Day after being sent by registered or certified mail to the address for delivery as provided for in this Section 8.1.

 

If to GE Capital Bank, as the Servicer:

 

GE Capital Bank, as Servicer

0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000

 

If to the Issuer:

 

[●]

00 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Capital Markets Operations
Telephone: [(000) 000-0000]
Facsimile: [(000) 000-0000]

 

If to the Rating Agencies:

 

[●]

 

[●]

Attn: [●]

 

If to Indenture Trustee:

 

[●]

[●]

[●]

[●]

Attention: [●]

 

 -13-Servicing Agreement
 

 

Section 8.2. Binding Effect; Assignability. This Agreement shall be binding upon and inure to the benefit of the Issuer, 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; provided, that neither the Issuer nor any subsequent assignee may assign any of its rights or obligations under this Agreement to any Affiliate of the Servicer without the Servicer’s prior written consent (which will not be unreasonably withheld or delayed), and any attempted assignment without the necessary consent shall be void. Each of the Issuer and the Servicer acknowledges and agrees that, upon any such permissible assignment, the assignee thereof may enforce directly, all of the obligations of the Issuer or the Servicer hereunder, as applicable.

 

Section 8.3. Termination; Survival of Obligations Upon Class C Maturity Date or Redemption Date. This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until the earlier of the Final Maturity Date or the Redemption Date; provided, that the rights and remedies provided for herein with respect to any breach of any representation or warranty made by the Servicer pursuant to Article III, the indemnification and payment provisions of Article VII and Sections 8.4 and 8.12 shall be continuing and shall survive the later of the Class C Maturity Date or the Redemption Date, as applicable.

 

Section 8.4. No Proceedings. The Servicer hereby agrees that, from and after the Closing Date and until the date that is one year plus one day following the earlier of the Class C Maturity Date or the Redemption Date, as applicable, it will not, directly or indirectly, institute or cause to be instituted against the Issuer any proceeding of the type referred to in the definition of “Bankruptcy Event”; provided that the foregoing shall not in any way limit the Servicer’s right to pursue any other creditor rights or remedies that the Servicer may have for claims against the Issuer.

 

Section 8.5. Complete Agreement; Modification of Agreement. This Agreement constitutes the complete agreement between the parties hereto with respect to the subject matter hereof, supersedes all prior agreements and understandings relating to the subject matter hereof, and may not be modified, altered or amended except as set forth in Section 8.6.

 

Section 8.6. Amendments and Waivers. No amendment, modification, termination or waiver of any provision of this Agreement, or any consent to any departure by any party hereto therefrom, shall in any event be effective unless the same shall be in writing and signed by each of the parties hereto.

 

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

 

 -14-Servicing Agreement
 

  

herewith. Any suspension or waiver of any breach or default hereunder shall not suspend, waive or affect any other breach or default whether the same is prior or subsequent thereto and whether the same or of a different type. None of the undertakings, agreements, warranties, covenants or representations of the Servicer contained in this Agreement and no breach or default by the Servicer hereunder, shall be deemed to have been suspended or waived by the Issuer unless such waiver or suspension is by an instrument in writing signed by an officer of or other duly authorized signatory of the Issuer and directed to the Servicer specifying such suspension or waiver. The rights and remedies of the Issuer and its assigns 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 SECTIONS 5-1401(1) AND 5-1402 OF THE GENERAL OBLIGATIONS LAWS, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA.

 

(a)          EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 8.1 AND THAT SERVICE SO MADE SHALL BE COMPLETED UPON SUCH PARTY’S ACTUAL RECEIPT THEREOF. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

 

 -15-Servicing Agreement
 

 

(b)          BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

Section 8.9. Counterparts. This Agreement may be executed in any number of separate counterparts, each of which shall collectively and separately constitute one agreement. Executed counterparts may be delivered electronically.

 

Section 8.10. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement.

 

Section 8.11. Section Titles. The section titles and table of contents contained in this Agreement are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto.

 

Section 8.12. Limited Recourse.

 

(a)          The obligations of the Issuer under this Agreement are solely the obligations of the Issuer. No recourse shall be had for any obligation or claim arising out of or based upon this Agreement against any incorporator or similar person, shareholder, officer, manager, member or director, past, present or future, of the Issuer or of any successor or of its constituent members or its other Affiliates, either directly or through the Issuer or any successor, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by acceptance hereof and as part of the consideration for the acceptance hereof, expressly waived and released. Any accrued obligations owing by the Issuer under this Agreement shall be payable by the Issuer solely to the extent that funds are available therefor from time to time in accordance with the provisions of Section 2.12 (provided that such accrued obligations shall not be extinguished until paid in full), and any amounts which the Issuer does not so pay hereunder shall not constitute a claim (as defined in Section 101 of the Bankruptcy Code) against, or limited liability company obligation of,

 

 -16-Servicing Agreement
 

 

the Issuer for any such amounts not paid, in each case, until the Issuer has received funds to make such payments as contemplated by the Related Documents).

 

(b)          The obligations of the Servicer under this Agreement are solely the obligations of the Servicer. No recourse shall be had for the payment of any amount owing hereunder or any other obligation or claim arising out of or based upon this Agreement , against any shareholder, employee, officer, manager, member or director, agent or organizer, past, present or future, of the Servicer or of any successor thereto, either directly or through the Servicer or any successor thereto, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by acceptance hereof and as part of the consideration for the acceptance hereof, expressly waived and released.

 

Section 8.13. Further Assurances. The Servicer shall, at its sole cost and expense, promptly and duly execute and deliver any and all further instruments and documents, and take such further action, that may be necessary or desirable or that the Issuer may request to  enable the Issuer to exercise and enforce its rights under this Agreement or otherwise carry out more effectively the provisions and purposes of this Agreement.

 

Section 8.14. Pledge of Assets. The Servicer hereby acknowledges that the Issuer has granted a security interest in the Collateral to the Indenture Trustee under the Indenture, and hereby waives any defenses it may have against the Indenture Trustee for the enforcement of this Agreement in the event of foreclosure by the Indenture Trustee against the Collateral. Accordingly, the parties hereto agree that, in the event of foreclosure by the Indenture Trustee against the Collateral, the Indenture Trustee shall have the right to enforce this Agreement and the full performance by the parties hereto of their obligations and undertakings set forth herein. The Servicer hereby agrees to deliver to the Indenture Trustee a copy of all notices to be delivered by the Servicer to the Issuer hereunder.

 

Section 8.15. Waiver of Setoff. The Servicer hereby waives any right of setoff that it may have for amounts owing to it under or in connection with this Agreement.

 

[Signatures Follow]

 

 -17-Servicing Agreement
 

 

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective representatives thereunto duly authorized, as of the date first above written.

 

  [●]
   
  By: [●],
  Its Managing Member

 

  By:  
  Name:
  Title:
   
  GE CAPITAL BANK
   
  By:  
  Name:
  Title:

 

 S-1Servicing Agreement
 

 

 

 

ANNEX A

 

to

SERVICING AGREEMENT

 

dated as of

 

[●] [●], 201[●]

 

Definitions and Interpretation

 

 

 

 
 

 

SECTION 1. Definitions and Conventions. Capitalized terms used in this 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 [●] [●], 201[●], by and between the Administrator and the Issuer.

 

“Administration Fee” is defined in Section 3 of the Administration Agreement.

 

“Administrator” means GE Capital Bank, 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.

 

[“Aggregate Receivable Value” means the sum of (i) the Loan Value of all the Loans and (ii) the Lease Value of all the Leases.]

 

[“Annual Percentage Rate” or “APR” of a Loan means, the interest rate or annual rate of finance charges stated in or, if not explicitly stated, the implicit finance charge used by the Servicer to calculate periodic payments with respect to the related Loan.]

 

“Appendices” means, with respect to any Related Document, all exhibits, schedules, annexes and other attachments thereto, or expressly identified thereto.

 

“Authorized Officer” means, with respect to any corporation, trust or limited liability company, as appropriate, the chairman or vice-chairman of the board, the president, any vice president, the secretary, the treasurer, any assistant secretary, any assistant treasurer, trustee, the managing member, and each other officer, employee, manager 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, [extension fees,] prepayment charges, assumption fees, modifications and other administrative fees or similar charges allowed by

 

 A-1Annex A to Servicing Agreement
 

 

applicable law with respect to the [Loans] [Receivables] that constitute part of the Servicing Fee) received during the related Collection Period; any Recoveries received during the related Collection Period; [net proceeds from any sale, re-lease, continued use or other disposition of Equipment and other Collateral during the related Collection Period other than any such proceeds due to any Obligor pursuant to a terminal rent adjustment clause in the related Lease;] any proceeds from insurance policies covering the Equipment or related Obligor received during the related Collection Period; the Purchase Amount of each [Loan] [Receivable] that became a [Purchased] [Removed] [Loan] [Receivable] during the related Collection Period (to the extent deposited into the Collection Account); Investment Earnings for such Payment Date; Servicing Advance received during the related Collection Period; and payments made by an Obligor pursuant to its obligation (if any) to pay the Termination Value pursuant to the related [Loan] [Receivable] received during the related Collection Period; provided, however, that the Available Amounts shall not include all payments or proceeds of any [Loans] [Receivables and related Equipment] 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. §§ 101 et seq. as amended from time to time.

 

“Bankruptcy Event” means, as to any Person, any of the following events: (a) (i) a case or proceeding shall have been commenced against such Person seeking a decree or order in respect of such Person under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar law, (ii) 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 shall have been appointed or shall act, with respect to such Person, under applicable law, or (iii) a case or proceeding shall have been commenced against such Person 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.

 

[“Book Residual Value” means, for the Equipment related to a Receivable arising out of a Lease that is not a Defaulted Receivable, the expected future value of that Equipment at the end of the related Lease term, as determined at the time of origination by the applicable Seller [or, in the case of Equipment related to a SUBI Receivable, the Titling Trust] in accordance with its typical practices and policies.]

 

“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.

 

“Class C Maturity Date” means the Payment Date in [●] 20[●].

 

“Closing Date” means [●] [●], 201[●].

 

 A-2Annex A to Servicing Agreement
 

 

“Collateral” is defined in the Indenture.

 

“Collection Account” means account number [●], titled “[●],” established and owned by the Issuer and maintained in accordance with Section 8.2 of the Indenture.

 

“Collection Period” means, for any Seller [or, with respect to SUBI Assets, the Titling Trust,] and with respect to any Payment Date, such Seller's [or the Titling Trust’s, as applicable,] fiscal 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 fiscal month preceding the fiscal month in which the first Payment Date occurs).

 

“Collections” is defined in the Indenture.

 

“Consolidated Subservicing Agreement” means the Service Agreement as supplemented by the supplement, dated as of [●] [●], 20[●], by and between the Servicer and GE Capital, as Sub-Servicer.

 

“Contract” means any arrangement (including any invoice) pursuant to, or under which, an Obligor shall be obligated to make payments with respect to any [Loan] [Receivable].

 

“Commission” means the Securities and Exchange Commission.

 

“Credit and Collection Policies” or “Credit and Collection Policy” means, with respect to each type of [Loan] [Receivable], the policies, practices and procedures adopted by the Issuer on the Closing Date, 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 [loan] [receivable and related equipment] and collections on such types of [loan] [receivable and related equipment].

 

“Cut-off Date” means [●] [●], 201[●].

 

“Daily Deposit Event” means (a) a reduction in GE Capital’s short-term debt rating below (i) P-1 or better by Moody’s, if rated by Moody’s, (ii) F-1 or better by Fitch, if rated by Fitch or, (iii) if rated by any other rating agency, the equivalent rating by that rating agency (or such other rating below X-0, X-0, X-0 or such equivalent rating, as the case may be, which is satisfactory to each Rating Agency, if any), or (b) any Sub-Servicer is not a direct or indirect subsidiary of General Electric Company that satisfies the ratings requirement set forth in (a) above.

 

“Date of Processing” means, with respect to any Available Amounts, the day on which such Available Amounts are first recorded in the Servicer’s computer file in respect of any [Loan] [or] [Lease] (without regard to the effective date of recordation).

 

“Defaulted [Loan] [Receivable]” is defined in the Indenture.

 

“Determination Date” means with respect to any Transfer Date, the second (2nd) Business Day prior to such Transfer Date.

 

 A-3Annex A to Servicing Agreement
 

 

“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 “[F-1+]” by Fitch and at least “[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 [Fitch] and at least “[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 [Fitch] and at least “[Baa3]” by [Moody's] subject to regulations regarding fiduciary funds on deposit substantially similar to 12 C.F.R. §9.10(b) in effect on the Closing Date.

 

“Equipment” means any transportation equipment[, industrial equipment, construction equipment, printing presses, maritime assets, furniture and fixtures, technology and telecommunications equipment] or other equipment, together with all accessions thereto securing an Obligor’s indebtedness under the respective Loan [or that is the subject of a Lease].

 

[“Equipment Loan” means middle market equipment loans that consist of loans and finance leases secured by new or used transportation equipment[, industrial equipment, construction equipment, furniture and fixtures, printing presses, maritime assets, technology and telecommunications equipment] or other equipment made to obligors in the United States of America.]

 

[“Fitch” means Fitch, Inc. and its successors and assigns.]

 

“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.

 

“GECCI” means GE Capital Commercial Inc., a Delaware corporation.

 

“Governmental Authority” is defined in the Sale Agreement.

 

“Indemnified Amounts” means, with respect to any Person, any and all damages, losses, liabilities and expenses (including reasonable attorneys’ fees and disbursements and other costs of investigation or defense, including those incurred upon any appeal) arising from, as a result of or in connection with any suit, action, proceeding or claim against or involving such Person.

 

“Indenture” means the Indenture, dated [●] [●], 201[●], between the Issuer and the Indenture Trustee, as the same may be amended and supplemented from time to time.

 

“Indenture Trustee” means [●], not in its individual capacity but solely as Indenture Trustee under the Indenture, or any successor Indenture Trustee under the Indenture.

 

“Intercreditor Agreement” means the Intercreditor Agreement, dated as of [●] [●], 201[●], among the Issuer, GECCI, [●], [●] [and] [,] [●] [, and the Titling Trust], as may be amended or supplemented from time to time.

 

 A-4Annex A to Servicing Agreement
 

 

“Investment Earnings” means, with respect to any Payment Date, the interest and other investment earnings (net of losses and investment expenses) on amounts on deposit in the Trust Accounts to be included as part of Collections pursuant to Section 8.6(a) of the Indenture.

 

“Issuer” means [●], a Delaware [limited liability company], [statutory trust] until a successor replaces it and, thereafter, means the successor and, for purposes of any provision contained in the Indenture and required by the Trust Indenture Act of 1939, each other obligor on the Notes issued pursuant to the Indenture.

 

[“Issuer Limited Liability Company Agreement” means the Limited Liability Company Agreement of the Issuer, dated as of [●] [●], 201[●], among the Managing Member and the Issuer, as the same may be amended or supplemented from time to time.]

 

[“Lease” means any lease included in the Schedules of Receivables [or on Annex A of the Series 201[●]-[●] SUBI].]

 

[“Lease Value” is defined in the Indenture.]

 

“Lien” means a security interest (as such term is defined in Section 1-201 of Article 1 of the UCC), lien, charge, pledge, equity or encumbrance of any kind, other than tax liens, mechanics’ liens and any liens that attach to the related [Loan] [Receivable] by operation of law as a result of any act or omission by the related Obligor.

 

[“Loan” means any loan included in the Schedules of [Loans] [Receivables].]

 

[“Loan Value” is defined in the Indenture.]

 

[“Managing Member” means GECB Equipment Funding, LLC, a Delaware limited liability company or any successor member under the Issuer Limited Liability Company Agreement.]

 

“Managing Member Liability Company Agreement” means the Limited Liability Company Agreement of the Managing Member, dated as of [●] [●], 2012 as the same may be amended and supplemented from time to time.

 

“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] [Receivables], the Contracts therefor, any interest related thereto [or the ownership interests] or Liens of such Person thereon or the priority of such interests or Liens, in each case, which affects the [Loans] [Receivables], the Contracts, therefor, an interest related thereto [or the ownership interests] or Liens of such Person thereon or the priority of such interests or Liens taken as a whole.

 

[“Moody’s” means Xxxxx’x Investors Service, Inc. or any successor thereto.]

 

 A-5Annex A to Servicing Agreement
 

 

“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] [Receivable], any Person who owes payments under the [Loan] [Receivable].

 

“Officer’s Certificate” means, with respect to any Person, a certificate signed by an Authorized Officer of such Person.

 

[“Other SUBI” means any special unit of beneficial interest in the Titling Trust other than the Series 201[●]-[●] SUBI.]

 

“Payment Date” means, the [●] day of the calendar month or, if such day is not a Business Day, the next Business Day, commencing on [●] [●], 201[●]. Each Payment Date relates to the last Collection Period ending prior to such Payment Date.

 

“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 [(a) with respect to any Loan], [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 Defaulted [Loan] [Receivable], as of the day immediately prior to such Loan becoming a Defaulted [Loan] [Receivable]) plus interest accrued and unpaid thereon as of such last day at a rate per annum equal to the APR for such Loan] [and (b) with respect to any Lease and its related Equipment, an amount equal to the Lease Value of the applicable Lease and its related Equipment, as of the first day of the immediately following Collection Period (or, with respect to any applicable Lease that is a Defaulted Receivable, as of the day immediately prior to such Lease becoming a Defaulted Receivable) plus interest accrued and unpaid thereon as of such last day at a rate per annum equal to the applicable discount rate for the related business unit originating such Lease].

 

“Purchase and Sale Agreement” means that certain Receivables Purchase and Sale Agreement, dated as of [●] [●], 201[●] by the Transferor and the Issuer, as the same may be amended from time to time.

 

[“Purchased [Loan] [Receivable]” means a [Loan] [Receivable and its related Equipment] repurchased as of the close of business on the last day of a Collection Period by a Seller pursuant

 

 A-6Annex A to Servicing Agreement
 

 

to Section 6.2 of the Sale Agreement and repurchased as of such time by the Transferor pursuant to Sections 2.4 or 7.2 of the Purchase and Sale Agreement or purchased by a third-party pursuant to Section 2.4 of the Purchase and Sale Agreement.]

 

“Rating Agency” means each of [Fitch and Xxxxx’x]. If any of such organizations or its successor is no longer in existence, the Issuer shall designate a nationally recognized statistical rating organization or other comparable Person as a substitute Rating Agency, notice of which designation shall be given to the Indenture Trustee and the Servicer.

 

“Rating Agency Condition” means, for so long such entity is rating any Class of Notes, with respect to any action, that (i) [Moody’s shall have been given at least ten (10) Business Days’ prior notice thereof and shall have not notified the Issuer and the Indenture Trustee that such action will result in a reduction or withdrawal of the then current rating of any Class of the Notes and (ii) Fitch shall have been given at least ten (10) Business Days’ prior notice thereof].

 

[“Receivable” means with respect to any Loan or Lease, all indebtedness of the related Obligor (whether constituting an account, chattel paper, document, instrument or general intangible) under that Loan or Lease.]

 

[“Receivables Assets” means the Receivables, the related Equipment and the Related Security.]

 

“Record Date” means, with respect to a Payment Date or Redemption Date, the close of business on the Business Day preceding such Payment Date or Redemption Date, or, if Definitive Notes are issued, the close of business on the last day of the calendar month preceding the month of such Payment Date, whether or not such day is a Business Day, or if Definitive Notes were not outstanding on such date, the date of issuance of the Definitive Notes.

 

“Records” means all notes, leases, security agreements and other documents, books, records and other information (including computer programs, tapes, disks, data processing software and related property and rights) prepared and maintained by any Seller, the Servicer, any Sub-Servicer or the Issuer with respect to the [Loans] [Receivables] and the Obligors thereunder.

 

“Recoveries” means, with respect to any [Loan] [Receivable], monies collected in respect thereof, from whatever source [(other than from the sale or other disposition of the Equipment), after the Lease Value or the Loan Value, as applicable, of such Receivable became zero.

 

“Redemption Date” is defined in the Indenture.

 

“Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time.

 

 A-7Annex A to Servicing Agreement
 

 

“Regulator Notice” is defined in Section 6.1(b).

 

“Related Documents” means this Agreement, the Sale Agreement, the Purchase and Sale Agreement, the Consolidated Subservicing Agreement, the Intercreditor Agreement, the Issuer Limited Liability Company Agreement, the Managing Member Limited Liability Company Agreement, the Administration Agreement, the Indenture, [the Series 201[●]-[●] SUBI], and all other agreements, instruments, and documents and including all other pledges, powers of attorney, consents, assignments, contracts, notices, and all other written matter whether heretofore, now or hereafter executed by or on behalf of any Person, or any employee of any Person, and delivered in connection with any of the foregoing. Any reference in the foregoing documents to a Related Document shall include all Annexes, Exhibits and Schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to such Related Document as the same may be in effect at any and all times such reference becomes operative.

 

“Related Security” means with respect to any [Loan] [Receivable]: (a) any interest (including security interests [or ownership interests]), if any, in the related Equipment [and, without limiting the foregoing, the related Residual]; (b) all guarantees, insurance [(including residual value insurance)] or other agreements or arrangements of any kind from time to time supporting or securing payment of such [Loan] [Receivable] whether pursuant to a Contract related to such [Loan] [Receivable] or otherwise (including rights (if any) to receive proceeds on insurance policies covering the Obligors); and (c) all Records relating to such [Loan] [Receivable].

 

[“Removed Receivable” means a Receivable and its related Equipment removed as of the close of business on the last day of a Collection Period by a Seller pursuant to Section 6.2 of the Sale Agreement and repurchased as of such time by the Transferor pursuant to Sections 2.4 or 7.2 of the Purchase and Sale Agreement or purchased by a third-party pursuant to Section 2.4 of the Purchase and Sale Agreement.]

 

“Reporting Servicer” means the Servicer or a Servicing Function Participant, as the case may be.

 

“Reserve Account” means account number [●], titled “[●],” established and owned by the Issuer and maintained in accordance with Section 8.2 of the Indenture.

 

[“Residual” means, with respect to any Lease, any right of the lessor or it assigns, as owner of the underlying Equipment, to realize value from the related Equipment after the termination of that Lease, including the right of the owner of the Equipment to receive any proceeds from the sale, re-lease, continued use or other disposition of the Equipment after the termination of the Lease.]

 

“Sale Agreement” means the Receivables Sale Agreement, dated [●] [●], 201[●], among GECCI, [●], [●], [●] and the Transferor, as the same may be amended or supplemented from time to time.

 

 A-8Annex A to Servicing Agreement
 

 

“Schedules of [Loans] [Receivables]” means the schedules of Receivables attached as [Schedule I, Schedule II, Schedule III and Schedule IV] to the Sale Agreement and the schedule attached as Schedule I to the Purchase and Sale Agreement (which schedules may be in the form of microfiche, floppy disk, CD-ROM or other electronic medium).

 

“Scheduled Payment” [(a)] [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] [, and (b) on a Lease means any payment required to be made by the Obligor under that Lease, other than on account of Residuals. The principal component of a Scheduled Payment on a Lease means the full required amount of the Scheduled Payment, less an imputed yield component based on the discount rate used by the Seller in determining the present value of scheduled payments payable under the Lease for such Lease; provided that, in the case of (a) or (b),] Termination Values shall also constitute Scheduled Payments.

 

“Securities Act” means the Securities Act of 1933 15 U.S.C. Section 77a et seq., as amended, and any regulations promulgated thereunder.

 

“Securities Exchange Act” means the provisions of the Securities Exchange Act of 1934 15 U.S.C. Sections 78a et seq., as amended, and any regulations promulgated thereunder.

 

“Seller” means each of GECCI, [●], [●] and [●] in its capacity as a seller, and their respective successors and assigns.

 

[“Series 201[●]-[●] SUBI” means that special unit of beneficial interest of the Titling Trust created by the UTI Beneficiary in connection with the transactions contemplated in the Related Documents.]

 

[“Service Agreement” means the Amended and Restated Service Agreement, dated as of July 31, 2008, by and between GE Capital Bank and GE Capital.]

 

“Servicer” means GE Capital Bank in its capacity as Servicer under this Agreement, or any other Person designated as a Successor Servicer under this Agreement.

 

“Servicer Default” means an event specified in Section 5.1 of this Agreement.

 

“Servicer Indemnified Person” is defined in Section 7.1(a) of this Agreement.

 

“Servicer Termination Notice” is defined in Section 5.1 of this Agreement.

 

“Servicer’s Certificate” means an Officer’s Certificate of the Servicer delivered pursuant to Section 2.7 of this Agreement.

 

“Servicing Advance” means, the amount as of any Payment Date, which the Servicer may, but is not required to, advance for delinquent Scheduled Payments pursuant to Section 2.5 of this Agreement.

 

 A-9Annex A to Servicing Agreement
 

 

“Servicing Criteria” means the “servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be amended from time to time.

 

“Servicing Fee” means, for any Collection Period, an amount equal to:

 

(i) One-twelfth (1/12) of the product of (a) the Servicing Fee Rate and (b) the [average daily aggregate outstanding principal amount of the Loans] [Aggregate Receivable Value] owned [or beneficially owned, as applicable,] by the Issuer on the first day of such Collection Period[; provided, however, that for the first Collection Period, the Servicing Fee shall be an amount equal to the product of (a) the Servicing Fee Rate and (b) the Aggregate Receivable Value on the Cut-off Date] and (c) a fraction equal to (1) the number of days in such Collection Period beginning with the Cut-off Date, divided by (2) 360; plus

 

(ii) miscellaneous fees and amounts received during such Collection Period;

 

provided, however, that, in any event, the Servicing Fee will be consistent with Section 23B of the Federal Reserve Act of 1913.

 

“Servicing Fee Rate” means [●]%.

 

“Servicing Function Participant” means any Person, other than the Servicer, that is performing activities that address the Servicing Criteria, unless such Person’s activities relate only to 5% or less of the [Loans] [Receivables and the related Equipment].

 

“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] [Receivables Assets] and the Obligors thereunder.

 

[“Simple Interest Loan” means any Loan under which the portion of a payment allocable to interest and the portion allocable to principal is determined by allocating a fixed level payment between principal and interest, such that such payment is allocated first to the accrued and unpaid interest at the Annual Percentage Rate for such Loan on the unpaid principal balance and the remainder of such payment is allocable to principal.]

 

“Stock” means all shares, options, warrants, membership interests in a limited liability company, general or limited partnership interests or other equivalents (regardless of how designated) of or in a corporation, partnership or equivalent entity whether voting or nonvoting, including common stock, preferred stock or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Securities Exchange Act).

 

“Stockholder” means, with respect to any Person, each holder of Stock of such Person.

 

“Sub-Servicer” means GE Capital, as sub-servicer under the Consolidated Subservicing Agreement, and any other Person with whom the Servicer enters into a Sub-Servicing Agreement.

 

 A-10Annex A to Servicing Agreement
 

 

“Sub-Servicing Agreement” means the Consolidated Subservicing Agreement and any other written contract entered into between the Servicer and any Sub-Servicer pursuant to and in accordance with Sections 2.1 and 2.10 relating to the servicing, administration or collection of the [Loans] [Receivables and other Receivables Assets].

 

[“SUBI Assets” means the SUBI Receivables and the related Equipment and the other related assets included in the Series 201[●]-[●] SUBI.]

 

[“SUBI Receivables” means the Leases specified on Annex A to the Series 201[●]-[●] SUBI.]

 

“Successor Servicer” is defined in Section 6.2.

 

“Termination Value” means the “Termination Value” (if any) payable by the Obligor pursuant to the applicable [Loan] [Receivable].

 

[“Titling Trust” means GE CF Trust, a Delaware statutory trust.]

 

[“Titling Trust Assets” means, at any time, all assets owned by the Titling Trust at such time.]

 

[“Titling Trust Collateral Agency Agreement” means the Amended and Restated Collateral Agency Agreement, dated as of November 19, 2012, by and between the Titling Trust and GE Title Agent LLC, a Delaware limited liability company, as collateral agent, and the Titling Trust.]

 

[“Titling Trust Collateral Agent” means GE Title Agent LLC, a Delaware limited liability company, as Collateral Agent under the Titling Trust Collateral Agency Agreement, or any other Person designated as a Collateral Agent thereunder.]

 

[“Titling Trust Collateral Agent Administration Agreement” means the Collateral Agent Administration Agreement, dated as of November 19, 2012, by and between GE Title Agent LLC, a Delaware limited liability company, as Collateral Agent, and GECCI, as administrator.]

 

“Transfer Date” means the Business Day preceding the Payment Date.

 

“Transferor” means GECB Equipment Funding, LLC, 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.

 

“UTI” means the undivided beneficial interest in all the assets of the Titling Trust that were not allocated to the Series 201[●]-[●] SUBI or any Other SUBI.

 

[“UTI Beneficiary” means GECCI, as beneficiary of the UTI.]

 

 A-11Annex A to Servicing Agreement
 

 

SECTION 2. Other Interpretive Matters. All terms defined directly or by incorporation in this Agreement shall have the defined meanings when used in any certificate or other document delivered pursuant thereto unless otherwise defined therein. For purposes of this Agreement (including this Annex A) and all certificates and other documents, unless the context otherwise requires: (a) accounting terms not otherwise defined in this Agreement, and accounting terms partly defined in this 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 GE Capital Bank fiscal calendar; (b) terms defined in Article 9 of the UCC and not otherwise defined in this 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 this Agreement (or the certificate or other document in which they are used) as a whole and not to any particular provision of this Agreement (or such certificate or document); (e) references to any Section, Schedule, Annex or Exhibit are references to Sections, Schedules, Annexes and Exhibits in or to this 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.

 

 A-12Annex A to Servicing Agreement

 

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Filed: December 19th, 2012
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