EXHIBIT 4 (e)
EXECUTION VERSION
SERVICING AGREEMENT
Dated as of November 16, 2004
by and between
GE COMMERCIAL EQUIPMENT FINANCING LLC,
SERIES 2004-1
as the Issuer
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as the Servicer
Servicing Agreement
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1. Definitions..................................................... 1
Section 1.2. Other Interpretive Matters...................................... 1
ARTICLE II
APPOINTMENT OF THE SERVICER; CERTAIN DUTIES AND RESPONSIBILITIES
OF THE SERVICER
Section 2.1. Appointment of the Servicer..................................... 1
Section 2.2. Duties and Responsibilities of the Servicer..................... 1
Section 2.3. Unrelated Amounts............................................... 2
Section 2.4. Authorization of the Servicer................................... 2
Section 2.5. Servicing Fees and Servicing Advances........................... 3
Section 2.6. Covenants of the Servicer....................................... 3
Section 2.7. Servicer's Certificate.......................................... 3
Section 2.8. Annual Statement as to Compliance; Notice of Default............ 4
Section 2.9. Annual Independent Certified Public Accountants' Report......... 4
Section 2.10. Appointment of Subservicer...................................... 4
Section 2.11. Maintenance of Security Interests in Loans...................... 4
Section 2.12. Accounts........................................................ 5
Section 2.13. Reserve Account................................................. 5
Section 2.14. Disbursement from the Collection Account........................ 5
Section 2.15. Limitation on Liability of Servicer and Others.................. 5
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of the Servicer.................. 6
ARTICLE IV
ADDITIONAL COVENANTS
Section 4.1. Covenants of the Servicer Regarding the Loans................... 7
ARTICLE V
EVENTS OF SERVICER TERMINATION
Section 5.1. Default......................................................... 8
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TABLE OF CONTENTS
(continued)
ARTICLE VI
SUCCESSOR SERVICER
Section 6.1. Resignation of Servicer......................................... 8
Section 6.2. Appointment of the Successor Servicer........................... 9
Section 6.3. Duties of Servicer.............................................. 9
Section 6.4. Effect of Termination or Resignation............................ 10
ARTICLE VII
INDEMNIFICATION
Section 7.1. Indemnities by the Servicer..................................... 10
Section 7.2. Limitation of Damages; Indemnified Persons...................... 10
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Notices......................................................... 10
Section 8.2. Binding Effect; Assignability................................... 12
Section 8.3. Termination; Survival of Obligations Upon Class C
Maturity Date or Redemption Date................................ 12
Section 8.4. No Proceedings.................................................. 12
Section 8.5. Complete Agreement; Modification of Agreement................... 12
Section 8.6. Amendments and Waivers.......................................... 12
Section 8.7. No Waiver; Remedies............................................. 13
Section 8.8. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.... 13
Section 8.9. Counterparts.................................................... 14
Section 8.10. Severability.................................................... 14
Section 8.11. Section Titles.................................................. 14
Section 8.12. Limited Recourse................................................ 14
Section 8.13. Further Assurances.............................................. 15
Section 8.14. Pledge of Assets................................................ 15
Section 8.15. Waiver of Setoff................................................ 15
Exhibit A Form of Servicer's Certificate
Annex A Definitions and Interpretation
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This SERVICING AGREEMENT, dated as of November 16, 2004 (this "Agreement"
or "Servicing Agreement"), by and between GE COMMERCIAL EQUIPMENT FINANCING LLC,
SERIES 2004-1, a limited liability company organized under the laws of the State
of Delaware (the "Issuer"), and GENERAL ELECTRIC CAPITAL CORPORATION ("GE
Capital"), in its capacity as the servicer hereunder (the "Servicer").
In consideration of the premises and the mutual covenants hereinafter
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1. Definitions. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in Section 1 of Annex A to this
Agreement.
Section 1.2. Other Interpretive Matters. For purposes of this Agreement,
the other interpretive matters set forth in Section 2 of Annex A shall govern.
All exhibits, schedules, and other attachments hereto, or expressly identified
hereto are incorporated herein by reference and, taken together with this
Agreement, shall constitute but a single agreement.
ARTICLE II
APPOINTMENT OF THE SERVICER; CERTAIN DUTIES
AND RESPONSIBILITIES OF THE SERVICER.
Section 2.1. Appointment of the Servicer. The Issuer hereby appoints the
Servicer as its agent to service the Loans and enforce its rights and interests
in and under the Loans and to serve in such capacity until the termination of
its responsibilities pursuant to Sections 5.1 or 6.1. In connection therewith,
the Servicer hereby accepts such appointment and agrees to perform the duties
and obligations set forth herein. The Servicer may, upon giving prior written
notice to the Issuer, delegate any duties to any Person, or subcontract with a
Sub-Servicer, for the collection, servicing or administration of the Loans;
provided, that (a) the Servicer shall remain liable for the performance of the
duties and obligations of any delegate or the Sub-Servicer pursuant to the terms
hereof and (b) any Sub-Servicing Agreement that may be entered into and any
other transactions or services relating to the Loans involving a Sub-Servicer
shall be deemed to be between the Sub-Servicer and the Servicer alone, and the
Issuer shall not be deemed party thereto and shall have no obligations, duties
or liabilities with respect to the Sub-Servicer.
Section 2.2. Duties and Responsibilities of the Servicer. Subject to the
provisions of this Agreement, the Servicer shall conduct the servicing,
administration and collection of the Loans and shall take, or cause to be taken,
all actions that (a) may be necessary or advisable to service, administer and
collect the Loans from time to time, (b) the Servicer would take if the Loans
were owned by the Servicer, and (c) are consistent with the Credit and
Collection Policies. The Servicer shall also perform on behalf of the Issuer all
of the Issuer's obligations under the
Servicing Agreement
Indenture other than any obligations to pay money and any obligations to be
performed by the Administrator under the Administration Agreement.
Section 2.3. Unrelated Amounts. If the Servicer determines that amounts
which are not property of the Issuer (the "Unrelated Amounts") have been
deposited in the Collection Account, then the Servicer shall provide written
evidence thereof to the Issuer no later than the first Business Day following
the day on which the Servicer had actual knowledge thereof, which evidence shall
be provided in writing. Upon receipt of any such notice, the Servicer shall
withdraw the Unrelated Amounts from the Collection Account, and the same shall
not be treated as Available Amounts on Loans and shall not be subject to the
provisions of Section 2.12.
Section 2.4. Authorization of the Servicer. The Servicer is hereby
authorized to take any and all reasonable steps necessary or desirable and
consistent with the ownership of the Loans by the Issuer and pledge of the Loans
to the Indenture Trustee under the Indenture, in the determination of the
Servicer, to (a) collect all amounts due under the Loans, including endorsing
its name on checks and other instruments representing Available Amounts on the
Loans, executing and delivering any and all instruments of satisfaction or
cancellation or of partial or full release or discharge and all other comparable
instruments with respect to the Loans, and consistent with its normal
procedures, arranging with the Obligor to extend or modify Scheduled Payments in
its discretion, and (b) after the Loans become delinquent and to the extent
permitted under and in compliance with applicable law and regulations, (i)
commence proceedings with respect to the enforcement of payment of the Loans,
(ii) adjust, settle or compromise any payments due thereunder and (iii) initiate
proceedings against any Collateral securing the obligations due under the Loans,
in each case, consistent with the Credit and Collection Policies; provided,
that, with respect to clause (a) and (b) above, the Servicer shall not agree to
any modification of the APR on any Loan or of the amount of any Scheduled
Payment on a Loan if such modification has a Material Adverse Effect on the
Noteholders; and provided, further, that in no event will such modification be
permitted to extend the final payment date beyond the Class C Maturity Date.
Notwithstanding the generality of clause (a) above, the Servicer agrees
that it shall promptly give written notice to the Issuer with a copy to S&P if
the aggregate Loan Value of all Loans with respect to which an extension on
payment of principal thereon has been granted by the Servicer exceeds 10% of the
aggregate Loan Value of the Loans as of the Cut-off Date.
If the Servicer shall commence a legal proceeding to enforce a Loan, the
Issuer (in the case of a Loan other than a Purchased Loan) shall thereupon be
deemed to have automatically assigned, solely for the purpose of collection,
such Loan to the Servicer. If in any enforcement suit or legal proceeding it
shall be held that the Servicer may not enforce a Loan on the ground that it
shall not be a real party in interest or a holder entitled to enforce such Loan,
the Managing Member shall take steps to enforce such Loan, including bringing
suit in its name.
The Issuer shall furnish (or cause to be furnished) the Servicer with any
powers of attorney and other documents necessary or appropriate to enable the
Servicer to carry out its servicing and administrative duties hereunder, and the
Issuer shall assist the Servicer to the fullest extent to enable the Servicer to
collect the Loans and otherwise discharge its duties
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hereunder. In no event shall the Servicer be entitled to make the Issuer a party
to any litigation without the Issuer's express prior written consent.
Section 2.5. Servicing Fees and Servicing Advances. (a) As compensation
for its servicing activities and as reimbursement for its reasonable expenses in
connection therewith, the Servicer shall be entitled to receive the Servicing
Fees for each Collection Period. The Servicer shall be required to pay for all
expenses incurred by it in connection with its activities hereunder (including
any payments to accountants, counsel or any other Person) and shall not be
entitled to any payment therefor other than the Servicing Fees. The Servicer
shall also be entitled to reimbursement for any outstanding Servicing Advances
owing to the Servicer with respect to all preceding Collection Periods.
(b) The Servicer may, but shall have no obligation to, make a
Servicing Advance in the manner and to the extent provided herein, but
only to the extent the Servicer, in its sole discretion, expects to be
reimbursed for such advance. If the Servicer elects to make a Servicing
Advance, prior to the close of business on each Determination Date, the
Servicer will determine the amount of the advance that it has elected to
make on the related Payment Date. The Servicer shall include information
as to such determination in the Servicer's Certificate furnished by it in
accordance with Section 2.7 and shall be obligated to transfer to the
Collection Account on or before 11:00 a.m. (New York City time) on the
related Transfer Date in next day funds the amounts applicable to such
determinations appearing in such Servicer's Certificate. All Servicing
Advances shall be reimbursable to the Servicer, without interest, when a
payment relating to a Loan with respect to which an advance has previously
been made is subsequently received. Upon the determination by the Servicer
that reimbursement from the preceding source is unlikely or
nonrecoverable, it will be entitled to recover unreimbursed advances from
Available Amounts on or in respect of other Loans.
Section 2.6. Covenants of the Servicer. The Servicer covenants and agrees
that from and after the Closing Date and until the earlier of the Class C
Maturity Date or Redemption Date, as applicable:
(a) Ownership of Loans. The Servicer shall identify the Loans
clearly and unambiguously in its Servicing Records to reflect that the
Loans are owned by the Issuer and have been pledged to the Indenture
Trustee under the Indenture.
(b) Compliance with Credit and Collection Policies; Law. The
Servicer shall comply in all material respects with the Credit and
Collection Policies with respect to the Loans and in all material respects
with applicable law with respect to the Loans, unless, in either case,
such failure to comply would not be reasonably expected to cause a
Material Adverse Effect.
Section 2.7. Servicer's Certificate. On each Determination Date the
Servicer shall deliver to the Issuer, with a copy to the Indenture Trustee, the
Seller and the Rating Agencies, a Servicer's Certificate in the form set forth
as Exhibit A hereto and containing all information necessary to make the
distributions pursuant to Section 2.14 and the deposits to the Collection
Account pursuant to Section 2.12 for the Collection Period preceding the date of
such Servicer's
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Certificate. Loans to be repurchased by the Seller shall be identified by the
Servicer by account number with respect to such Loan (as specified in the
Schedule of Loans delivered on the Closing Date).
Section 2.8. Annual Statement as to Compliance; Notice of Default. (a) The
Servicer shall deliver to the Issuer, with a copy to the Indenture Trustee, on
or before March 15 of each year, an Officers' Certificate, dated as of December
31 of the preceding year, stating that: (i) a review of the activities of the
Servicer during the preceding 12-month period (or, in the case of the first such
certificate, from the Cut-off Date to December 31, 2005) and of its performance
under this Agreement has been made under such officers' supervision and (ii) to
the best of such officers' knowledge, based on such review, the Servicer has
fulfilled all its obligations under this Agreement throughout such year or, if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officers and the nature and status thereof.
(b) The Servicer shall deliver to the Issuer, with a copy to the
Indenture Trustee, promptly after having obtained knowledge thereof, but
in no event later than five Business Days thereafter, written notice in an
Officers' Certificate of any event that, with the giving of notice or
lapse of time, or both, would become a Servicer Default under Section 5.1.
Section 2.9. Annual Independent Certified Public Accountants' Report. The
Servicer shall cause a firm of independent certified public accountants, which
may also render other services to the Servicer, any Seller or any other
Affiliate of any of the Sellers or Servicer, as applicable, to deliver to the
Issuer on or before March 15 of each year commencing in 2005 a report, addressed
to the board of directors of the Servicer, the Issuer and the Indenture Trustee,
summarizing the results of certain procedures with respect to certain documents
and records relating to the servicing of the Loans during the preceding calendar
year (or, in the case of the first such report, during the period from the
Cut-off Date to December 31, 2005). The procedures to be performed and reported
upon by the independent public accountants shall be those agreed to by the
Servicer and the Issuer or its designee.
Such report will also indicate that the firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
Section 2.10. Appointment of Subservicer. The Servicer may at any time
appoint a subservicer to perform all or any portion of its obligations as
Servicer hereunder; provided, that the Servicer shall remain obligated and be
liable to the Issuer, for the servicing and administering of the Loans in
accordance with the provisions hereof without diminution of such obligation and
liability by virtue of the appointment of such subservicer and to the same
extent and under the same terms and conditions as if the Servicer alone were
servicing and administering the Loans. The fees and expenses of the subservicer
shall be as agreed between the Servicer and its subservicer from time to time
and the Issuer shall have no responsibility therefor.
Section 2.11. Maintenance of Security Interests in Loans. The Servicer
shall, in accordance with the Credit and Collection Policies, take such steps as
are necessary to maintain perfection of the security interest created by each
Loan in any of the Equipment. The Issuer
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hereby authorizes the Servicer to take such steps as are necessary to re-perfect
such security interest on behalf of the Issuer or its assigns for any reason,
including the filing of UCC financing statements without the related debtor's
signature. Without limiting the generality of the foregoing, the Servicer shall
make or maintain all required federal lien filings or registrations in the name
of the Issuer, as applicable. Upon discovery by the Issuer or the Servicer of a
breach of its obligation to maintain perfection of the security interest in each
Loan pursuant to this Section 2.11, which breach is reasonably likely to have a
Material Adverse Effect, the party discovering the same shall give prompt
written notice thereof to the other party hereto. As liquidated damages for such
breach, the Issuer shall, on the Transfer Date relating to the Collection Period
during which the breach is discovered, request the Servicer to, and the Servicer
shall pay to, or at the direction of, the Issuer the Purchase Amount for the
applicable Loans (measured at the end of the Collection Period during which such
breach is discovered). Upon such payment, all rights, title and interest of the
Issuer in and to such Loans will be deemed to be automatically released without
the necessity of any further action by the Issuer, the Servicer or any other
party and such Loans will become the property of the Servicer.
Section 2.12. Accounts. As of the Closing Date, the Servicer shall
establish and maintain the Collection Account and the Reserve Account in the
name of the Issuer, each of which shall be an Eligible Deposit Account.
(a) Not later than 10:00 a.m. (New York City time) on each Transfer
Date, the Servicer shall deposit into the Collection Account all Available
Amounts with respect to the related Collection Period that have not
previously been deposited into the Collection Account (it being understood
that no such deposits are required to be made prior to the Transfer Date
unless a Daily Deposit Event has occurred).
(b) Upon the occurrence and during the continuation of a Daily
Deposit Event, the Servicer shall transfer to the Collection Account, on
each Business Day in same day funds, all Available Amounts then held or
thereafter received by it that are required to be deposited into the
Collection Account, within two Business Days after receipt thereof.
Section 2.13. Reserve Account. The Servicer shall determine the amounts
for deposit into or for withdrawal from the Reserve Account on each Transfer
Date in accordance with the provisions of Section 8.4 of the Indenture.
Section 2.14. Disbursement from the Collection Account. On each Transfer
Date, the Servicer, on behalf of the Issuer, shall withdraw from the Collection
Account for payment to itself an amount equal to any accrued but unpaid
Servicing Fee and any accrued but unpaid Servicing Advances owing to the
Servicer (based on the information contained in the Servicer's Certificate
delivered on the related Determination Date pursuant to Section 2.7) in
accordance with Section 2.5.
Section 2.15. Limitation on Liability of Servicer and Others. Neither the
Servicer nor any of the directors, officers, employees or agents of the Servicer
shall be under any liability to the Issuer or the Noteholders, except as
provided under this Agreement, for any action taken or for refraining from the
taking of any action pursuant to this Agreement or for errors in judgment;
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provided, however, that this provision shall not protect the Servicer or any
such Person against any liability that would otherwise be imposed by reason of
willful misconduct, bad faith or negligence in the performance of its duties or
by reason of reckless disregard of obligations and duties under this Agreement.
The Servicer and any director, officer, employee or agent of the Servicer may
rely in good faith on the advice of counsel or on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder.
Except as provided in this Agreement, the Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action that shall not be
incidental to its duties to service the Loans in accordance with this Agreement,
and that in its opinion may involve it in any expense or liability; provided,
however, that the Servicer may undertake any reasonable action that it may deem
necessary or desirable in respect of this Agreement, the Related Documents and
the rights and duties of the parties to this Agreement, the other Related
Documents and the interests of the Noteholders under the Indenture.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of the Servicer. The Servicer
represents and warrants to the Issuer as of the Closing Date as follows:
(a) It is a corporation, duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or
organization and is duly qualified to do business, and is in good
standing, in each jurisdiction in which the servicing of the Loans
hereunder requires it to be so qualified, except where the failure to
comply would not reasonably be expected to have a Material Adverse Effect.
(b) It has the power and authority to execute and deliver this
Agreement and to perform the transactions contemplated hereby.
(c) This Agreement has been duly authorized, executed and delivered
by the Servicer and constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms, subject to any
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the
enforceability of creditors' rights generally and general equitable
principles, whether applied in a proceeding at law or in equity.
(d) No consent of, notice to, filing with or permits, qualifications
or other action by any Governmental Authority or any other party is
required for the due execution, delivery and performance of this
Agreement, other than consents, notices, filings and other actions which
have been obtained or made or where the failure to get such consent or
take such action, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect.
(e) There is no pending or, to its actual knowledge, threatened
litigation of a material nature against or affecting it, in any court or
tribunal, before any arbitrator of
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any kind or before or by any Governmental Authority (i) asserting the
invalidity of this Agreement, or (ii) seeking any determination or ruling
that might materially and adversely affect the validity or enforceability
of this Agreement.
ARTICLE IV
ADDITIONAL COVENANTS
Section 4.1. Covenants of the Servicer Regarding the Loans. (a)
Maintenance of Files. The Servicer shall, for not less than three years or for
such longer period as may be required by law, from the date on which any Loan is
paid in full, maintain the Records with respect to each Loan, including records
of all payments received, credits granted and property returned. The Servicer
will permit representatives of the Issuer or its designee at any reasonable time
during normal business hours, and at such times outside of normal business hours
as the Issuer shall reasonably request, (i) to inspect and make copies of and
abstracts from such Records, (ii) to visit the properties of the Servicer
utilized in connection with the collection, processing or servicing of the Loans
for the purpose of examining such Records, and (iii) to discuss matters relating
to the Loans or the Servicer's performance under this Agreement with any
officer, employee or accountants of the Servicer having knowledge of such
matters. In connection therewith, the Issuer shall institute procedures to
permit it to confirm the Loan Value in respect of any Loan; provided that no one
other than the Servicer, subject to any other arrangements made by the Issuer,
will contact an Obligor unless a Servicer Default has occurred. The Servicer
agrees to render to the Issuer such clerical and other assistance as may be
reasonably requested with regard to the foregoing.
(b) Servicer Default. If a Servicer Default shall have occurred and
be continuing, promptly upon request therefor, the Servicer shall deliver
to the Issuer records reflecting activity through the close of business on
the immediately preceding Business Day. Upon the occurrence and during the
continuation of a Servicer Default, the Servicer shall (i) deliver and
turn over to the Issuer or to its representatives, or at the option of the
Issuer shall provide the Issuer or its representatives with access to, at
any time, on demand of the Issuer, all of the Servicer's facilities,
personnel, books and records pertaining to the Loans, including all
Records, (ii) allow the Issuer to occupy the premises of the Servicer
where such books, records and Records are maintained, and (iii) utilize
such premises, the equipment thereon and any personnel of the Servicer
that the Issuer may wish to employ to administer, service and collect the
Loans.
(c) Notice of Adverse Claim. The Servicer shall advise the Issuer
promptly, in reasonable detail, (i) of any claim of ownership or Lien
known to it made or asserted against any Loan, other than any ownership
interest or Lien created under the Sale Agreement or the Purchase and Sale
Agreement, any Lien created under the Indenture or any Permitted
Encumbrances (as defined under the Sale Agreement or the Purchase and Sale
Agreement, as applicable), and (ii) of the occurrence of any event known
to it which would have a material adverse effect on the aggregate value of
the Loans.
(d) Further Assurances. The Servicer shall furnish to the Issuer
from time to time such statements and schedules further identifying and
describing the Loans and such
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other reports in connection with the Loans as the Issuer may reasonably
request, all in reasonable detail.
ARTICLE V
EVENTS OF SERVICER TERMINATION
Section 5.1. Default. If any of the following events shall occur
(regardless of the reason therefor) with respect to the Servicer:
(a) The Servicer shall (i) fail to make or give instructions for any
deposit, transfer or payment required to be made hereunder and the same
shall remain unremedied for three Business Days, or (ii) fail or neglect
to perform, keep or observe in any material respect any other provision of
this Agreement and the same shall remain unremedied for fifteen days after
written notice thereof shall have been given by the Issuer to the
Servicer;
(b) Any representation or warranty of the Servicer herein or in any
written statement, report, financial statement or certificate made or
delivered by the Servicer to the Issuer hereto or thereto shall be untrue
or incorrect in any material respect as of the date when made or deemed
made and shall not be corrected for a period of 60 days after either (i)
any Authorized Officer of the Servicer becomes aware thereof or (ii)
notice thereof has been given to such Person by the Issuer; or
(c) A Bankruptcy Event shall have occurred and be continuing with
respect to the Servicer;
then, upon the occurrence of any of such events (each, a "Servicer Default"),
the Issuer may deliver a notice (a "Servicer Termination Notice") to the
Servicer, terminating the servicing responsibilities of the Servicer hereunder,
without demand, protest or further notice of any kind, all of which are hereby
waived by the Servicer. Upon the delivery of any such notice, all authority and
power of the Servicer under this Agreement shall pass to and be vested in the
Successor Servicer acting pursuant to Section 6.2, provided, that
notwithstanding anything to the contrary herein, the Servicer agrees to act as
Servicer and to continue to follow the procedures set forth in this Agreement
with respect to Available Amounts on the Loans under this Agreement until a
Successor Servicer has assumed the responsibilities and obligations of the
Servicer in accordance with Section 6.2.
ARTICLE VI
SUCCESSOR SERVICER
Section 6.1. Resignation of Servicer. The Servicer may resign under the
circumstances set forth in clause (a) or (b) of this Section 6.1.
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(a) The Servicer may resign from its obligations and duties
hereunder if it finds a replacement servicer satisfying the eligibility
criteria set forth in Section 6.2. No such resignation shall become
effective until the replacement servicer shall have obtained the Issuer's
approval and appointment pursuant to Section 6.2.
(b) The Servicer may resign from the obligations and duties hereby
imposed on it upon its determination that (i) the performance of its
duties hereunder has become impermissible under applicable law, and (ii)
there is no reasonable action which the Servicer could take to make the
performance of its duties hereunder permissible under applicable law. No
such resignation shall become effective until a Successor Servicer shall
have assumed the responsibilities and obligations of the Servicer in
accordance with Section 6.2.
Section 6.2. Appointment of the Successor Servicer. In connection with the
termination of the Servicer's responsibilities under this Agreement pursuant to
Section 5.1 or 6.1, the Issuer shall within 30 days after the giving of a
Servicer Termination Notice pursuant to Section 5.1 or as soon as practicable
after a resignation of the Servicer pursuant to Section 6.1, appoint a successor
servicer that shall have a long-term debt rating of at least "BBB-" by S&P and
"Baa3" by Moody's. The successor servicer shall succeed to all rights and assume
all of the responsibilities, duties and liabilities of the Servicer under this
Agreement (such successor servicer being referred to as the "Successor
Servicer"); provided, that the Successor Servicer shall have no responsibility
for any actions of the Servicer prior to the date of its appointment as
Successor Servicer. The Successor Servicer shall accept its appointment by
executing, acknowledging and delivering to the Issuer an instrument in form and
substance acceptable to the Issuer, and by providing prior written notice of
such appointment to the Indenture Trustee. Notice shall be given to the Rating
Agencies of the appointment of any Successor Servicer.
Section 6.3. Duties of Servicer. At any time following the appointment of
a Successor Servicer:
(a) the Servicer agrees that it shall terminate its activities as
servicer hereunder in a manner acceptable to the Issuer so as to
facilitate the transfer of servicing to the Successor Servicer, including
timely delivery (i) to the Issuer of any funds that were required to be
deposited in the Collection Account and the Reserve Account and (ii) to
the Successor Servicer, at a place selected by the Successor Servicer, of
all Servicing Records and other information with respect to the Loans. The
Servicer shall account for all funds and shall execute and deliver such
instruments and do such other things as may reasonably be required to more
fully and definitely vest and confirm in the Successor Servicer all
rights, powers, duties, responsibilities, obligations and liabilities of
the Servicer; and
(b) the Servicer shall terminate each Sub-Servicing Agreement that
may have been entered into by it and the Successor Servicer shall not be
deemed to have assumed any of such outgoing servicer's interest therein or
to have replaced such outgoing servicer as a party to any such
Sub-Servicing Agreement.
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Section 6.4. Effect of Termination or Resignation. Any termination or
resignation of the Servicer under this Agreement shall not affect any claims
that the Issuer may have against the Servicer for events or actions taken or not
taken by the Servicer arising prior to any such termination or resignation.
ARTICLE VII
INDEMNIFICATION
Section 7.1. Indemnities by the Servicer. Without limiting any other
rights that the Issuer or its Affiliates or any Stockholder, director, officer,
employee, or agent or incorporator thereof (each, a "Servicer Indemnified
Person") may have hereunder or under applicable law, the Servicer hereby agrees
to indemnify each Servicer Indemnified Person from and against any and all
Indemnified Amounts which may be imposed on, incurred by or asserted against a
Servicer Indemnified Person in any way arising out of or relating to any
material breach of the Servicer's obligations under this Agreement; excluding,
however, Indemnified Amounts to the extent resulting from (i) bad faith, gross
negligence or willful misconduct on the part of the Servicer Indemnified Person
or (ii) recourse for uncollectible Loans. Any Indemnified Amounts subject to the
indemnification provisions of this Section 7.1 shall be paid to the Servicer
Indemnified Person within ten Business Days following demand therefor.
Section 7.2. Limitation of Damages; Indemnified Persons. NO SERVICER PARTY
TO THIS AGREEMENT SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS
AGREEMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR
ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT,
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF
ANY TRANSACTION CONTEMPLATED HEREUNDER.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other parties, or whenever any of the parties desires to give or
serve upon any other parties any communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and shall be deemed to have been validly
served, given or delivered (a) upon the earlier of actual receipt and three
Business Days after deposit in the United States mail, registered or certified
mail, return receipt requested, with proper postage prepaid, (b) upon
transmission, when sent by facsimile or other electronic transmission (with such
transmission promptly confirmed by delivery of a copy by personal delivery or
United States mail as otherwise provided in this Section 8.1), (c) one Business
Day after deposit with a reputable overnight courier with all charges prepaid or
(d) when delivered, if hand-delivered by messenger, all of which shall be
addressed to the party to be notified and sent to the address or
Servicing Agreement
-10-
facsimile number indicated below or to such other address (or facsimile number)
as may be substituted by notice given as herein provided. The giving of any
notice required hereunder may be waived in writing by the party entitled to
receive such notice. Failure or delay in delivering copies of any notice,
demand, request, consent, approval, declaration or other communication to any
Person designated in any written notice provided hereunder to receive copies
shall in no way adversely affect the effectiveness of such notice, demand,
request, consent, approval, declaration or other communication. Notwithstanding
the foregoing, whenever it is provided herein that a notice is to be given to
any other party hereto by a specific time, such notice shall only be effective
if actually received by such party prior to such time, and if such notice is
received after such time or on a day other than a Business Day, such notice
shall only be effective on the immediately succeeding Business Day.
If to GE Capital, as Servicer:
General Electric Capital Corporation, as Servicer
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Issuer:
GE Commercial Equipment Financing LLC, Series 2004-1
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Capital Markets Operations
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Rating Agencies:
Xxxxx'x Investors Service, Inc.
ABS Monitoring Department
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services,
A division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset-Backed Surveillance Department
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Servicing Agreement
-11-
If to Indenture Trustee:
JPMorgan Chase Bank, N.A.
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Servicer Structural Finance
Section 8.2. Binding Effect; Assignability. This Agreement shall be
binding upon and inure to the benefit of the Issuer and the Servicer and their
respective successors and permitted assigns. Except as set forth in Section 2.1,
or Article VI, the Servicer may not assign, transfer, hypothecate or otherwise
convey any of its rights or obligations hereunder or interests herein without
the express prior written consent of the Issuer and unless the Rating Agency
Condition shall have been satisfied with respect to any such assignment. Any
such purported assignment, transfer, hypothecation or other conveyance by the
Servicer without the prior express written consent of the Issuer shall be void.
The Issuer may, at any time, assign any of its rights and obligations under this
Agreement to any Person and any such assignee may further assign at any time its
rights and obligations under this Agreement, in each case, without the consent
of the Servicer. Each of the Issuer and the Servicer acknowledges and agrees
that, upon any such assignment, the assignee thereof may enforce directly, all
of the obligations of the Issuer or the Servicer hereunder, as applicable.
Section 8.3. Termination; Survival of Obligations Upon Class C Maturity
Date or Redemption Date. This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms, and
shall remain in full force and effect until the earlier of the Class C Maturity
Date or the Redemption Date; provided, that the rights and remedies provided for
herein with respect to any breach of any representation or warranty made by the
Servicer pursuant to Article III, the indemnification and payment provisions of
Article VII and Sections 8.4 and 8.12 shall be continuing and shall survive the
later of the Class C Maturity Date or the Redemption Date, as applicable.
Section 8.4. No Proceedings. The Servicer hereby agrees that, from and
after the Closing Date and until the date one year plus one day following the
earlier of the Class C Maturity Date or the Redemption Date, as applicable, it
will not, directly or indirectly, institute or cause to be instituted against
the Issuer any proceeding of the type referred to in the definition of
"Bankruptcy Event"; provided that the foregoing shall not in any way limit the
Servicer's right to pursue any other creditor rights or remedies that the
Servicer may have for claims against the Issuer.
Section 8.5. Complete Agreement; Modification of Agreement. This Agreement
constitutes the complete agreement among the parties hereto with respect to the
subject matter hereof, supersedes all prior agreements and understandings
relating to the subject matter hereof, and may not be modified, altered or
amended except as set forth in Section 8.6.
Section 8.6. Amendments and Waivers. No amendment, modification,
termination or waiver of any provision of this Agreement, or any consent to any
departure by any party hereto therefrom, shall in any event be effective unless
the same shall be in writing and signed by each of the parties hereto.
Servicing Agreement
-12-
Section 8.7. No Waiver; Remedies. The failure by the Issuer, at any time
or times, to require strict performance by the Servicer of any provision of this
Agreement shall not waive, affect or diminish any right of the Issuer thereafter
to demand strict compliance and performance herewith. Any suspension or waiver
of any breach or default hereunder shall not suspend, waive or affect any other
breach or default whether the same is prior or subsequent thereto and whether
the same or of a different type. None of the undertakings, agreements,
warranties, covenants or representations of the Servicer contained in this
Agreement and no breach or default by the Servicer hereunder, shall be deemed to
have been suspended or waived by the Issuer unless such waiver or suspension is
by an instrument in writing signed by an officer of or other duly authorized
signatory of the Issuer and directed to the Servicer specifying such suspension
or waiver. The rights and remedies of the Issuer under this Agreement shall be
cumulative and nonexclusive of any other rights and remedies that the Issuer may
have under any other agreement, including the other Related Documents, by
operation of law or otherwise.
Section 8.8. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS LAW, BUT
WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS THEREOF) AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(a) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL
HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF
OR RELATING TO THIS AGREEMENT; PROVIDED, THAT EACH PARTY HERETO
ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY. EACH
PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY
WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS
TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE
BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS
ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 8.1 AND THAT SERVICE SO MADE
SHALL BE DEEMED COMPLETED UPON THE
Servicing Agreement
-13-
EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT
IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION
SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW.
(b) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED
AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS
TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND
OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 8.9. Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement. Executed counterparts may be delivered electronically.
Section 8.10. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
Section 8.11. Section Titles. The section titles and table of contents
contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the
parties hereto.
Section 8.12. Limited Recourse. (a) The obligations of the Issuer under
this Agreement are solely the obligations of the Issuer. No recourse shall be
had for any obligation or claim arising out of or based upon this Agreement
against any incorporator, shareholder, officer, manager, member or director,
past, present or future, of the Issuer or of any successor or of its constituent
members or its other Affiliates, either directly or through the Issuer or any
successor, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by acceptance hereof and as part of the consideration for the acceptance
hereof, expressly waived and released. Any accrued obligations owing by the
Issuer under this Agreement shall be payable by the Issuer solely to the extent
that funds are available therefor from time to time in accordance with the
provisions of Section 2.12 (provided that such accrued obligations shall not be
extinguished until paid in full).
Servicing Agreement
-14-
(b) The obligations of the Servicer under this Agreement are solely
the obligations of the Servicer. No recourse shall be had for the payment
of any amount owing hereunder or any other obligation or claim arising out
of or based upon this Agreement, against any shareholder, employee,
officer, manager, member or director, agent or organizer, past, present or
future, of the Servicer or of any successor thereto, either directly or
through the Servicer or any successor thereto, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by
acceptance hereof and as part of the consideration for the acceptance
hereof, expressly waived and released.
Section 8.13. Further Assurances. The Servicer shall, at its sole cost and
expense, promptly and duly execute and deliver any and all further instruments
and documents, and take such further action, that may be necessary or desirable
or that the Issuer may request to enable the Issuer to exercise and enforce its
rights under this Agreement or otherwise carry out more effectively the
provisions and purposes of this Agreement.
Section 8.14. Pledge of Assets. The Servicer hereby acknowledges that the
Issuer has granted a security interest in the Collateral to the Indenture
Trustee under the Indenture, and hereby waives any defenses it may have against
the Indenture Trustee for the enforcement of this Agreement in the event of
foreclosure by the Indenture Trustee against the Collateral. Accordingly, the
parties hereto agree that, in the event of foreclosure by the Indenture Trustee
against the Collateral, the Indenture Trustee shall have the right to enforce
this Agreement and the full performance by the parties hereto of their
obligations and undertakings set forth herein. The Servicer hereby agrees to
deliver to the Indenture Trustee a copy of all notices to be delivered by the
Servicer to the Issuer hereunder.
Section 8.15. Waiver of Setoff. The Servicer hereby waives any right of
setoff that it may have for amounts owing to it under or in connection with this
Agreement.
[Signatures Follow]
Servicing Agreement
-15-
IN WITNESS WHEREOF, the parties have caused this Servicing Agreement to be
executed by their respective representatives thereunto duly authorized, as of
the date first above written.
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES
2004-1
BY: CEF EQUIPMENT HOLDING, L.L.C.,
ITS MANAGING MEMBER
By:
----------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
----------------------------------------
Name:
Title:
Servicing Agreement
EXHIBIT A
to Servicing Agreement
FORM OF SERVICER'S CERTIFICATE
[______________________]
[______________________]
[______________________]
Attention: [______________________]
[______________________]
[______________________]
[_____________]
[______________________]
Attention: [______________________]
[SELLER NAME]
[SELLER ADDRESS]
Attention: Secretary
Xxxxx'x Investors Service, Inc.
ABS Monitoring Department
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services,
A division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Surveillance Department
Fitch, Inc.
00 X. Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: ABS Surveillance
JPMorgan Chase Bank, N.A.
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Institutional Trust Servicer Structural Finance
[Form of Certificate to be discussed]
Servicing Agreement
A-1
FINAL VERSION
ANNEX A
to
SERVICING AGREEMENT
dated as of
November 16, 2004
Definitions and Interpretation
Annex A to
Servicing Agreement
SECTION 1. Definitions and Conventions. Capitalized terms used in the
Servicing Agreement shall have (unless otherwise provided elsewhere therein) the
following respective meanings:
"Accounting Changes" means, with respect to any Person an adoption of GAAP
different from such principles previously used for reporting purposes as defined
in the Accounting Principles Board Opinion Number 20.
"Administration Agreement" means the Administration Agreement, dated as of
November 16, 2004, between the Administrator and the Issuer.
"Administration Fee" is defined in Section 3 of the Administration
Agreement.
"Administrator" means General Electric Capital Corporation, in its
capacity as Administrator under the Administration Agreement, or any other
Person designated as a successor administrator.
"Affiliate" means, with respect to any Person, (a) each Person that,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, five percent (5%) or more of the Stock having
ordinary voting power in the election of directors of such Person, (b) each
Person that controls, is controlled by, or is under common control with such
Person, or (c) each of such Person's officers, directors, joint venturers and
partners. For the purposes of this definition, "control" of a Person means the
possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"Annual Percentage Rate" or "APR" of a Loan means, the interest rate or
annual rate of finance charges stated in or, if not explicitly stated, the
implicit finance charge used by the Servicer to calculate periodic payments with
respect to the related Loan.
"Appendices" means, with respect to any Related Document, all exhibits,
schedules, annexes and other attachments thereto, or expressly identified
thereto.
"Authorized Officer" means, with respect to any corporation, trust or
limited liability company, as appropriate, the Chairman or Vice-Chairman of the
Board, the President, any Vice President, the Secretary, the Treasurer, any
Assistant Secretary, any Assistant Treasurer, the Managing Member, and each
other officer, employee or member of such corporation, trust or limited
liability company, as appropriate, specifically or similar governing body of
such limited liability company or trust to sign agreements, instruments or other
documents on behalf of such corporation authorized in resolutions of the board
of directors of such corporation or similar governing body of such limited
liability company or trust, as appropriate.
"Available Amounts" means, with respect to any Payment Date all payments
made by or on behalf of the Obligors (excluding any late fees, prepayment
charges, assumption fees, modifications and other administrative fees or similar
charges allowed by applicable law with respect to the Loans that constitute part
of the Servicing Fees) received during the related Collection Period; any
Recoveries received during the related Collection Period; any Swap
Annex A to
Servicing Agreement
Payments Incoming and any Swap Termination Payments received pursuant to the
Swap Agreement with respect to such Payment Date; any proceeds from insurance
policies covering the Equipment or related Obligor received during the related
Collection Period; Liquidation Proceeds received with respect to the related
Collection Period; the Purchase Amount of each Loan that became a Purchased Loan
during the related Collection Period (to the extent deposited into the
Collection Account); Investment Earnings for such Payment Date; Servicing
Advances received during the related Collection Period; and payments made by a
lessee pursuant to its obligation (if any) to pay the Termination Value pursuant
to the related Loan received during the related Collection Period; provided,
however, that the Available Amounts shall not include all payments or proceeds
(including Liquidation Proceeds) of any Loans the Purchase Amount of which has
been included in the Available Amounts in a prior Collection Period; provided
further, with respect to the first Payment Date, Available Amounts will exclude
payments and proceeds of interest on the Loans from the Cut-off Date through
November 1, 2004.
"Bankruptcy Code" means the provisions of title 11 of the United States
Code, 11 U.S.C. Sections 101 et seq. as amended from time to time.
"Bankruptcy Event" means, as to any Person, any of the following events:
(a) a case or proceeding shall have been commenced against such Person seeking a
decree or order in respect of such Person (i) under the Bankruptcy Code or any
other applicable federal, state or foreign bankruptcy or other similar law, (ii)
appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator
(or similar official) for any such Person or for any substantial part of such
Person's assets, or (iii) ordering the winding-up or liquidation of the affairs
of any such Person; or (b) such Person shall (i) file a petition seeking relief
under the Bankruptcy Code or any other applicable federal, state or foreign
bankruptcy or other similar law, (ii) consent or fail to object in a timely and
appropriate manner to the institution of proceedings thereunder or to the filing
of any such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar
official) for such Person or for any substantial part of such Person's assets,
(iii) make an assignment for the benefit of creditors, or (iv) take any
corporate action in furtherance of any of the foregoing.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which banks are required or permitted to be closed in the State of New York or
the State of Connecticut.
"CEF Limited Liability Company Agreement" means the Second Amended and
Restated Limited Liability Company Agreement of CEF dated September 25, 2003 as
the same may be amended and supplemented from time to time.
"Class C Maturity Date" is defined in the Indenture.
"Closing Date" means November 16, 2004.
"Collateral" is defined in the Indenture.
"Collection Account" means the account designated as such, established and
owned by the Issuer and maintained in accordance with Section 8.2 of the
Indenture.
Annex A to
Servicing Agreement
-2-
"Collection Period" means, with respect to any Payment Date, the calendar
month preceding the month in which the Payment Date occurs (or, if for the first
Payment Date, the period from and including the day after the Cut-off Date to
and including the last day of the calendar month preceding the calendar month in
which the first Payment Date occurs).
"Collections" is defined in the Indenture.
"Credit and Collection Policies" or "Credit and Collection Policy" means
the policies, practices and procedures adopted by the Issuer on the Closing Date
for providing equipment loans secured by transportation equipment, industrial
equipment, furniture and fixtures, construction equipment, medical and dental
equipment, technology and telecommunications equipment, maritime assets or other
equipment, including the policies and procedures for determining the
creditworthiness of Obligors and the extension of credit to Obligors, or
relating to the maintenance of such types of loans and collections on such types
of loans.
"Cut-off Date" is defined in the Indenture.
"Daily Deposit Event" means (i) a reduction in the Servicer's rating below
"BBB-" by S&P or "A2" by Moody's, (ii) the reduction of General Electric
Company's long-term debt rating below "A" by S&P or (iii) the Servicer is not a
direct or indirect subsidiary of General Electric Company.
"Defaulted Loan" is defined in the Purchase and Sale Agreement.
"Determination Date" means with respect to any Transfer Date, the second
Business Day prior to such Transfer Date.
"Eligible Deposit Account" means: (a) a segregated deposit account
maintained with a depository institution or trust company whose short-term
unsecured debt obligations are rated at least A-1+ by S&P and P-1 by Moody's,
(b) a segregated account which is either (i) maintained in the corporate trust
department of the Indenture Trustee or (ii) maintained with a depository
institution or trust company whose long term unsecured debt obligations are
rated at least BBB- by S&P and Baa3 by Moody's, or (c) a segregated trust
account or similar account maintained with a federally or state chartered
depository institution whose long term unsecured debt obligations are rated at
least BBB- by S&P and Baa3 by Moody's subject to regulations regarding fiduciary
funds on deposit substantially similar to 12 C.F.R. Section 9.10(b) in effect on
the Closing Date.
"Equipment" means any transportation equipment, industrial equipment,
furniture and fixtures, construction equipment, medical and dental equipment,
technology and telecommunications equipment, maritime assets or other equipment,
together with all accessions thereto securing an Obligor's indebtedness under
the respective Loan.
"Fitch" means Fitch, Inc. and its successors and assigns.
Annex A to
Servicing Agreement
-3-
"GAAP" means generally accepted accounting principles in the United States
of America as in effect on the Closing Date, modified by Accounting Changes as
GAAP is further defined in Section 2(a) of this Annex A.
"GE Capital" means General Electric Capital Corporation, a Delaware
corporation.
"GECT" means General Electric Credit Corporation of Tennessee, a Tennessee
corporation.
"Governmental Authority" is defined in the Sale Agreement.
"Indemnified Amounts" means, with respect to any Person, any and all
suits, actions, proceedings, claims, damages, losses, liabilities and expenses
(including reasonable attorneys' fees and disbursements and other costs of
investigation or defense, including those incurred upon any appeal).
"Indenture" means the Indenture, dated November 16, 2004, between the
Issuer and the Indenture Trustee, as the same may be amended and supplemented
from time to time.
"Indenture Trustee" means JPMorgan Chase Bank, N.A., not in its individual
capacity but solely as Indenture Trustee under the Indenture, or any successor
Indenture Trustee under the Indenture.
"Investment Earnings" means, with respect to any Payment Date, the
interest and other investment earnings (net of losses and investment expenses)
on amounts on deposit in the Trust Accounts to be included as part of
Collections pursuant to Section 8.6(a) of the Indenture.
"Issuer" means GE Commercial Equipment Financing LLC, Series 2004-1, a
Delaware limited liability company, until a successor replaces it and,
thereafter, means the successor and, for purposes of any provision contained in
the Indenture and required by the Trust Indenture Act of 1939, each other
obligor on the notes issued pursuant to the Indenture.
"Issuer Limited Liability Company Agreement" means the Limited Liability
Company Agreement of the Issuer, dated as of November 16, 2004, among the
Managing Member and the Issuer, as the same may be amended or supplemented from
time to time.
"Lien" means a security interest (as such term is defined in Section 1-201
of Article 1 of the UCC), lien, charge, pledge, equity or encumbrance of any
kind, other than tax liens, mechanics' liens and any liens that attach to the
related Loan by operation of law as a result of any act or omission by the
related Obligor.
"Liquidated Loan" means any Loan (i) liquidated through the sale or other
disposition of all or a portion of the related Equipment, (ii) that has been
charged off in its entirety in accordance with the Credit and Collection Policy
without realizing upon the Equipment or (iii) the due date of any Scheduled
Payment of which has been extended, at any time after the Cut-off Date for an
aggregate period of 12 or more calendar months.
Annex A to
Servicing Agreement
-4-
"Liquidation Proceeds" means, with respect to any Liquidated Loan, the
amounts collected in respect thereof from whatever source (including the
proceeds of insurance policies with respect to the related Equipment or Obligor)
during the Collection Period in which it became a Liquidated Loan, net of the
sum of any amounts expended in connection with such liquidation and any amounts
required by law to be remitted to the Obligor on such Liquidated Loan or any
creditor of such Obligor to the extent required by applicable law or agreement.
"Loan" means any Loan included in the Schedule of Loans and any agreement
(including any invoice) pursuant to, or under which, an Obligor shall be
obligated to make payments with respect to any Loan.
"Loan Value" is defined in the Purchase and Sale Agreement.
"Managing Member" means CEF Equipment Holding, L.L.C., a Delaware limited
liability company or any successor Managing Member under the Issuer Limited
Liability Company Agreement.
"Material Adverse Effect" means, with respect to any Person, a material
adverse effect on (a) the business, assets, liabilities, operations, prospects
or financial or other condition of such Person, (b) the ability of such Person
to perform any of its obligations under the Related Documents in accordance with
the terms thereof, (c) the validity or enforceability of any Related Document or
the rights and remedies of such Person under any Related Document or (d) the
Loans, as applicable, therefor, any interest related thereto or the ownership
interests or Liens of such Person thereon or the priority of such interests or
Liens.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor thereto.
"Note Depository Agreement" means the agreement among the Issuer, the
Indenture Trustee and The Depository Trust Company, as the initial clearing
agency, dated as of the Closing Date.
"Note Register" has the meaning specified in Section 2.4 of the Indenture.
"Noteholder" means the person in whose name a Note is registered on the
Note Register.
"Notes" is defined in the Indenture.
"Obligor" means, as to each Loan, any Person who owes payments under the
Loan.
"Officer's Certificate" means, with respect to any Person, a certificate
signed by an Authorized Officer of such Person.
"Payment Date" means, with respect to each Collection Period, the 20th day
of the calendar month following the end of that Collection Period, or, if such
day is not a Business Day, the next Business Day, commencing on December 20,
2004.
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"Person" means any individual, sole proprietorship, partnership, joint
venture, unincorporated organization, trust, association, corporation (including
a business trust), limited liability company, institution, public benefit
corporation, joint stock company, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Precomputed Loan" means any Loan under which the portion of a payment
allocable to earned interest (which may be referred to in the related Loan as an
add-on finance charge) and the portion allocable to principal are determined
according to the sum of periodic balances, the sum of monthly payments or any
equivalent method or are monthly actuarial loans.
"Purchase Amount" means, as of the close of business on the last day of a
Collection Period, an amount equal to the Loan Value of the applicable Loan, as
of the first day of the immediately following Collection Period (or, with
respect to any applicable Loan that is a Liquidated Loan or Defaulted Loan, as
of the day immediately prior to such Loan becoming a Liquidated Loan or
Defaulted Loan less any Liquidation Proceeds actually received by the Issuer)
plus interest accrued and unpaid thereon as of such last day at a rate per annum
equal to the APR for such Loan.
"Purchase and Sale Agreement" means that certain Loan Purchase and Sale
Agreement, dated as of November 16, 2004 by the Transferor and the Issuer, as
the same may be amended from time to time.
"Purchased Loan" means a Loan repurchased as of the close of business on
the last day of a Collection Period by a Seller pursuant to Section 6.2 of the
Sale Agreement or repurchased as of such time by the Transferor pursuant to
Section 7.2 of the Purchase and Sale Agreement.
"Rating Agency" means each of Fitch, Moody's and S&P. If any of such
organizations or its successor is no longer in existence, the Issuer shall
designate a nationally recognized statistical rating organization or other
comparable Person as a substitute Rating Agency, notice of which designation
shall be given to the Indenture Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action, that (i) each
Rating Agency (other than Moody's) shall have been given prior notice thereof
and that each of the Rating Agencies (other than Moody's) shall have notified
the Issuer and the Indenture Trustee in writing that such action will not result
in a reduction or withdrawal of the then current rating of any Class of the
Notes and (ii) Moody's shall have been given at least 10 Business Days' prior
notice thereof and shall have not notified the Issuer and the Indenture Trustee
that such action will result in a reduction or withdrawal of the then current
rating of any Class of the Notes.
"Record Date" means, with respect to a Payment Date or Redemption Date,
the close of business on the Business Day preceding such Payment Date or
Redemption Date, or, if Definitive Notes are issued, the close of business on
the last day of the calendar month preceding the month of such Payment Date,
whether or not such day is a Business Day, or if Definitive Notes were not
outstanding on such date, the date of issuance of the Definitive Notes.
"Records" means all notes, leases, security agreements and other
documents, books, records and other information (including computer programs,
tapes, disks, data processing
Annex A to
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software and related property and rights) prepared and maintained by any Seller,
the Servicer, any Sub-Servicer or the Issuer with respect to the Loan and the
Obligors thereunder.
"Recoveries" means, with respect to any Liquidated Loan, monies collected
in respect thereof, from whatever source (other than from the sale or other
disposition of the Equipment), after such Loan became a Liquidated Loan.
"Redemption Date" is defined in the Indenture.
"Related Documents" means the Sale Agreement, the Purchase and Sale
Agreement, the Servicing Agreement, the Indenture, the Issuer Limited Liability
Agreement, the CEF Limited Liability Company Agreement, the Administration
Agreement, the Note Depository Agreement, the Swap Agreement and all other
agreements, instruments, and documents and including all other pledges, powers
of attorney, consents, assignments, contracts, notices, and all other written
matter whether heretofore, now or hereafter executed by or on behalf of any
Person, or any employee of any Person, and delivered in connection with any of
the foregoing. Any reference in the foregoing documents to a Related Document
shall include all Appendices thereto, and all amendments, restatements,
supplements or other modifications thereto, and shall refer to such Related
Document as the same may be in effect at any and all times such reference
becomes operative.
"Reserve Account" means the account designated as such, established and
owned by the Issuer and maintained in accordance with Section 8.2 of the
Indenture.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"Sale Agreement" means the Loan Sale Agreement, dated November 16, 2004,
among GE Capital, GECT and the Transferor.
"Schedule of Loans" means the schedules of Loans attached as Schedule I
and Schedule II to the Sale Agreement and the schedule attached as Schedule I to
the Purchase and Sale Agreement (which schedules may be in the form of
microfiche).
"Scheduled Payment" on a Loan means that portion of the payment required
to be made by the Obligor during any Collection Period sufficient to amortize
the principal balance under (x) in the case of a Precomputed Loan, the actuarial
method or (y) in the case of a Simple Interest Loan, the simple interest method,
in each case, over the term of the Loan and to provide interest at the APR,
provided that Termination Values shall also constitute Scheduled Payments.
"Seller" means each of GE Capital and GECT, in its capacity as a seller,
their respective successors and assigns.
"Servicer" means each of GE Capital, in its capacity as Servicer under
this Agreement, or any other Person designated as a Successor Servicer.
"Servicer Default" means an event specified in Section 5.1 of the
Servicing Agreement.
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"Servicer Indemnified Person" is defined in Section 7.1 of the Servicing
Agreement.
"Servicer Termination Notice" is defined in Section 5.1 of the Servicing
Agreement.
"Servicer's Certificate" means an Officer's Certificate of the Servicer
delivered pursuant to Section 2.7 of the Servicing Agreement, substantially in
the form of Exhibit A thereto.
"Servicing Advance" means, the amount as of the Record Date, which the
Servicer may, but is not required to, advance pursuant to Section 2.5 of the
Servicing Agreement.
"Servicing Agreement" means the Servicing Agreement, dated as of November
16, 2004 between the Servicer and the Issuer.
"Servicing Fee" means, for any Collection Period, an amount equal to the
product of (a) the Servicing Fee Rate, (b) the average daily aggregate
outstanding principal amount of Loans as of the first day of such Collection
Period and (c) a fraction equal to (i) the number of days in such Collection
Period, divided by (ii) 360; plus all late fees, prepayment fees, assumption
fees, modification fees, and other miscellaneous fees and amounts received
during such Collection Period.
"Servicing Fee Rate" means 0.35%.
"Servicing Records" means all documents, books, Records and other
information (including computer programs, tapes, disks, data processing software
and related property and rights) prepared and maintained by the Servicer with
respect to the related Loans and the Obligors thereunder.
"Simple Interest Loan" means any Loan under which the portion of a payment
allocable to interest and the portion allocable to principal is determined by
allocating a fixed level payment between principal and interest, such that such
payment is allocated first to the accrued and unpaid interest at the Annual
Percentage Rate for such Loan on the unpaid principal balance and the remainder
of such payment is allocable to principal.
"Stock" means all shares, options, warrants, membership interests in a
limited liability company, general or limited partnership interests or other
equivalents (regardless of how designated) of or in a corporation, partnership
or equivalent entity whether voting or nonvoting, including common stock,
preferred stock or any other "equity security" (as such term is defined in Rule
3a11-1 of the General Rules and Regulations promulgated by the Securities and
Exchange Commission under the Securities Exchange Act).
"Stockholder" means, with respect to any Person, each holder of Stock of
such Person.
"Sub-Servicer" means any Person with whom the Servicer enters into a
Sub-Servicing Agreement.
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"Sub-Servicing Agreement" means any written contract entered into between
the Servicer and any Sub-Servicer pursuant to and in accordance with Section
2.10 relating to the servicing, administration or collection of the Loans.
"Successor Servicer" is defined in Section 6.2.
"Termination Value" means the "Termination Value" (if any) payable by
lessee pursuant to the applicable Loan.
"Transfer Date" means the Business Day preceding the twentieth day of each
calendar month.
"Transferor" means CEF Equipment Holding, L.L.C., a Delaware limited
liability company, as transferor under the Purchase and Sale Agreement.
"UCC" means, with respect to any jurisdiction, the Uniform Commercial Code
as the same may, from time to time, be enacted and in effect in such
jurisdiction.
SECTION 2. Other Interpretive Matters. All terms defined directly or by
incorporation in the Agreement shall have the defined meanings when used in any
certificate or other document delivered pursuant thereto unless otherwise
defined therein. For purposes of the Agreement (including this Annex A) and all
certificates and other documents, unless the context otherwise requires: (a)
accounting terms not otherwise defined in the Agreement, and accounting terms
partly defined in the Agreement to the extent not defined, shall have the
respective meanings given to them under GAAP; and unless otherwise provided,
references to any month, quarter or year refer to a fiscal month, quarter or
year as determined in accordance with the GE Capital fiscal calendar; (b) terms
defined in Article 9 of the UCC and not otherwise defined in such Agreement are
used as defined in that Article; (c) references to any amount as on deposit or
outstanding on any particular date means such amount at the close of business on
such day; (d) the words "hereof," "herein" and "hereunder" and words of similar
import refer to such Agreement (or the certificate or other document in which
they are used) as a whole and not to any particular provision of such Agreement
(or such certificate or document); (e) references to any Section, Schedule or
Exhibit are references to Sections, Schedules and Exhibits in or to such
Agreement (or the certificate or other document in which the reference is made),
and references to any paragraph, subsection, clause or other subdivision within
any Section or definition refer to such paragraph, subsection, clause or other
subdivision of such Section or definition; (f) the term "including" means
"including without limitation"; (g) references to any law or regulation refer to
that law or regulation as amended from time to time and include any successor
law or regulation; (h) references to any agreement refer to that agreement as
from time to time amended, restated or supplemented or as the terms of such
agreement are waived or modified in accordance with its terms; (i) references to
any Person include that Person's successors and assigns; and (j) headings are
for purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
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