EXHIBIT 99(c)
SERVICING AGREEMENT
Dated as of [ ]
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by and between
[ ]
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and
GENERAL ELECTRIC CAPITAL CORPORATION,
as the Servicer
TABLE OF CONTENTS
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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.............................................. 2
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........ 3
Section 2.9. Annual Independent Certified Public Accountants' Report..... 4
Section 2.10. Maintenance of Security Interests in Receivables............ 4
Section 2.11. Collection Account.......................................... 4
Section 2.12. Disbursement from the Collection Account.................... 4
Section 2.13. Certificateholder Distributions and Reports................. 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 Receivables......... 7
ARTICLE V
EVENTS OF SERVICER TERMINATION
Section 5.1. Default..................................................... 8
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TABLE OF CONTENTS
(continued)
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ARTICLE VI
SUCCESSOR SERVICER
Section 6.1. Resignation of Servicer..................................... 9
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............................... 11
Section 8.3. Termination; Survival of Obligations Upon Maturity Date or
Redemption Date ............................................ 12
Section 8.4. Confidentiality............................................. 12
Section 8.5. No Proceedings.............................................. 12
Section 8.6. Complete Agreement; Modification of Agreement............... 12
Section 8.7. Amendments and Waivers...................................... 12
Section 8.8. No Waiver; Remedies......................................... 12
Section 8.9. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF
JURY TRIAL ................................................. 13
Section 8.10. Counterparts................................................ 14
Section 8.11. Severability................................................ 14
Section 8.12. Section Titles.............................................. 14
Section 8.13. Limited Recourse............................................ 14
Section 8.14. Further Assurances.......................................... 15
Section 8.15. Pledge of Assets............................................ 15
Section 8.16. Waiver of Setoff............................................ 15
Schedule 2.7 Reporting Requirements
Annex B Definitions
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This SERVICING AGREEMENT, dated as of [____________________] (this
"Agreement" or "Servicing Agreement"), by and between
[_______________________________], a [limited liability company] [business
trust] organized under the laws of the State of Delaware (the "Issuer"), and
GENERAL ELECTRIC CAPITAL CORPORATION ("GE Capital"), in its capacity as the
servicer hereunder (the "Servicer").
In consideration of the premises and the mutual covenants hereinafter
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1. Definitions. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in Section 1 of Annex A.
Section 1.2. Other Interpretive Matters. For purposes of this Agreement,
the other interpretive matters set forth in Section 2 of Annex A shall govern.
All exhibits, schedules, and other attachments hereto, or expressly identified
hereto are incorporated herein by reference and, taken together with this
Agreement, shall constitute but a single agreement.
ARTICLE II
APPOINTMENT OF THE SERVICER; CERTAIN DUTIES
AND RESPONSIBILITIES OF THE SERVICER.
Section 2.1. Appointment of the Servicer. The Issuer hereby appoints the
Servicer as its agent to service the Receivables and enforce its rights and
interests in and under the Receivables 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 Receivables; 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 Receivables
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 Receivables and shall take, or cause to be
taken, all actions that (a) may be necessary or advisable to service, administer
and collect the Receivables from time to time, (b) the Servicer would take if
the Receivables 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 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 Collections on Receivables and shall not be subject to the
provisions of Sections 2.12 or 2.13.
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 Receivables by the Issuer and pledge of the
Receivables to the Indenture Trustee under the Indenture, in the determination
of the Servicer, to (a) collect all amounts due under the Receivables, including
endorsing its name on checks and other instruments representing Collections on
the Receivables, 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 Receivables and consistent with
its normal procedures, arranging with the Obligor to extend or modify Scheduled
Payments in its discretion and (b) after the 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 Receivables, (ii) adjust, settle or compromise any payments due
thereunder and (iii) initiate proceedings against any Collateral securing the
obligations due under the Receivables, 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
Receivable or of the amount of any Scheduled Payment on a Receivable. If such
modification has a material adverse effect on the Noteholders; and provided,
further, that in no event will such modification be permitted to extend the
final payment date beyond the Maturity Date.
If the Servicer shall commence a legal proceeding to enforce a Receivable,
the Issuer (in the case of a Receivable other than a Purchased Receivable) shall
thereupon be deemed to have automatically assigned, solely for the purpose of
collection, such Receivable to the Servicer. If in any enforcement suit or legal
proceeding it shall be held that the Servicer may not enforce a Receivable on
the ground that it shall not be a real party in interest or a holder entitled to
enforce such Receivable, the [Owner Trustee] [Managing Member] shall take steps
to enforce such Receivable, 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 Receivables and otherwise discharge its duties 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
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shall be required to pay for all expenses incurred by it in connection with its
activities hereunder (including any payments to accountants, counsel or any
other Person) and shall not be entitled to any payment therefor other than the
Servicing Fees. The Servicer shall also be entitled to reimbursement for any
Outstanding Servicer Advances owing to the Servicer with respect to all
preceding Collection Periods.
(b) The Servicer may, but shall have no obligation to, make a
Servicer Advance in the manner and to the extent provided herein, but only
to the extent the Servicer, in its sole discretion, expects to be
reimbursed for such advance. If the Servicer elects to make a Servicer
Advance, prior to the close of business on each Determination Date, the
servicer will determine the amount of the advance that it has elected to
make on the related Payment Date. The Servicer shall include information
as to such determination in the Servicer's Certificate furnished by it in
accordance with Section 2.7 and shall be obligated to transfer to the
Collection Account on or before 11:00 a.m. (New York City time) on the
related Transfer Date in next day funds the amounts applicable to such
determinations appearing in such Servicer's Certificate. The Servicer
shall be reimbursed for Outstanding Servicer Advances as provided in
Section 2.13 and Outstanding Servicer Advances shall be reduced
accordingly. Each Servicer Advance will be treated as a loan and interest
will accrue on such advance as provided in your prospectus supplement.
Section 2.6. Covenants of the Servicer. The Servicer covenants and agrees
that from and after the Closing Date and until the earlier of the Maturity Date
or Redemption Date, as applicable:
(a) Ownership of Receivables. The Servicer shall identify the
Receivables clearly and unambiguously in its Servicing Records to reflect
that the Receivables 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 Receivables and in all material
respects with applicable law with respect to the Receivables, 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 Seller, a Servicer's
Certificate in the form of Exhibit A hereto containing all information necessary
to make the distributions pursuant to Section 2.13 and the deposits to the
Collection Account pursuant to Section 2.12 for the Collection Period preceding
the date of such Servicer's Certificate. Receivables to be repurchased by the
Seller shall be identified by the Servicer by account number with respect to
such Receivable (as specified in the schedule of Receivables delivered on the
Closing Date).
Section 2.8. Annual Statement as to Compliance; Notice of Default.
(a) The Servicer shall deliver to the Issuer, on or before
[________] of each year, an Officers' Certificate, dated as of
[__________] of the preceding year, stating
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that: (i) a review of the activities of the Servicer during the preceding
12-month period (or, in the case of the first such certificate, from the
Cutoff Date to [__________]) 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, promptly after having
obtained knowledge thereof, but in no event later than five Business Days
thereafter, written notice in an Officers' Certificate of any event that,
with the giving of notice or lapse of time, or both, would become a
Servicer Default under Section 5.1.
Section 2.9. Annual Independent Certified Public Accountants' Report. The
Servicer shall cause a firm of independent certified public accountants, which
may also render other services to the Servicer, the Seller or any other
Affiliate of either the Seller or Servicer, as applicable, to deliver to the
Issuer on or before [________] of each year a report, addressed to the board of
directors of the Servicer, the Issuer and the Indenture Trustee, summarizing the
results of certain procedures with respect to certain documents and records
relating to the servicing of the Receivables during the preceding calendar year
(or, in the case of the first such report, during the period from the Cutoff
Date to [__________]). 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 Receivables 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 Receivables. 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 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 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 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
Receivable pursuant to this
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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
may, 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
Receivables (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 Receivables 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 Receivables 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 Certificate Distribution
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
Collections 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 Collections then held or
thereafter received by it that are required to be deposited into the
Collection Account, within one Business Day after receipt thereof.
Section 2.13. Disbursement from the Collection Account.
(a) On each Transfer Date after deducting an amount equal to any
accrued but unpaid Servicing Fee and any accrued but unpaid Servicer
Advances owing to the Servicer, the Servicer shall disburse (based on the
information contained in the Servicer's Certificate delivered on the
related Determination Date pursuant to Section 2.7) funds on deposit in
the Collection Account on behalf of the Issuer by 11:00 a.m. (New York
time), in the following order of priority:
(i) to the Administrator, the Administration Fee and all
unpaid Administration Fees from prior Collection Periods;
(ii) to the Swap Counterparty any amounts due to the Swap
Counterparty under the Swap Agreement, not including any swap
termination payments payable under clause (iii) below;
(iii) to pay with the same priority and ratably in proportion
to the Outstanding Principal Balance of the Class A Notes and the
amount of any swap termination payment due and payable by the Issuer
to the Swap Counterparty:
(a) to the Note Distribution Account the Monthly
Interest Amount Payable on the Class A Notes; and
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(b) to the Swap Counterparty, any swap termination
payments payable to the Swap Counterparty upon the termination
of the Swap Agreement, if such termination occurred as a
result of a default by, or a tax event upon a merger related
to, the Swap Counterparty; provided that if any amounts
allocable to the Class A Notes are not needed to pay interest
due on such Class A Notes as of such payment date, such
amounts will be applied to pay the portion, if any, of any
swap termination payment remaining unpaid;
(iv) to the Note Distribution Account, the Monthly Interest
Amount Payable on the Class B Notes;
(v) to the Note Distribution Account, the Class A Noteholders'
Monthly Principal Payable Amount;
(vi) to the Class B Noteholders, the Class B Noteholders'
Monthly Principal Payable Amount;
(vii) to the Certificate Distribution Account, the
Certificateholders' Distribution on Invested Amount;
(viii) to the Certificate Distribution Account, the
Certificateholders' Distributable Invested Amount; and
(ix) to the Issuer, the remaining Collections.
[(b) On the Class A Note Maturity Date, the Servicer shall disburse
funds on deposit in the Collection Account on behalf of the Issuer by
11:00 a.m. (New York time), to the Note Distribution Account in an amount
equal to the sum of (i) the aggregate accrued and unpaid interest on the
Class A Notes as of the Class A Note Maturity Date, and (ii) the amount
necessary to reduce the outstanding principal amount of the Class A Notes
to zero.
It is understood and agreed that, with respect to the amounts to be
distributed pursuant to this Section 2.13(b), the Servicer shall, to the extent
necessary (i) deposit into the Collection Account any amounts received as
payments by or on behalf of any Obligor (and not previously deposited into the
Collection Account) on or prior to the Class A Note Maturity Date, (ii) make
each calculation that would otherwise be made on a Determination Date (with
appropriate adjustments) in accordance with Section 2.7 on the Business Day
immediately proceeding the Class A Note Maturity Date, (iii) on the Payment Date
immediately succeeding the Class A Note Maturity Date, make any adjustments to
the Monthly Principal Amount Payable, the Monthly Interest Amount Payable and
any other amount to be paid on such Payment Date, and (iv) make any other
calculation, adjustment or correction that may be required as result of any
payment made on the Class A Note Maturity Date.]
Section 2.14. Certificateholder Distributions and Reports. On each Payment
Date prior to an Event of Default, the Servicer shall pay to Certificateholders
on the Issuer's behalf funds on deposit in the Certificate Distribution Account
in the following order of priority:
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(i) the Certificateholders' Distributable Invested Amount; and
(ii) the Certificateholders' Distribution on Invested Amount.
On each Determination Date, the Servicer shall provide to the Issuer or at
the request of the Issuer to the [Owner Trustee] [Managing Member] for the
Issuer or [Owner Trustee], as applicable, to forward to each Certificateholder
of record, a statement substantially in the form of Exhibit B, setting forth at
least the following:
(i) the Certificateholders' Distribution on Invested Amount;
(ii) the Certificateholders' Distributable Invested Amount;
(iii) the Pool Balance as of the opening of business on the
first day of the preceding Collection Period in which such
Determination Date occurs;
(iv) the Certificate Invested Amount and the Certificate Pool
Factor as of such Payment Date, after giving effect to payments
allocated to principal reported under clause (i) above;
(v) the amount of the Servicing Fee and any Servicer Advances
paid to the Servicer with respect to the preceding Collection
Period;
(vi) the amount of the Administration Fee paid to the
Administrator in respect of the preceding Collection Period;
(vii) the amount of the aggregate Realized Losses, if any, for
such Collection Period; and
(viii) the aggregate Purchase Amounts for Receivables, if any,
that were repurchased or purchased in such Collection Period.
Each amount set forth pursuant to clauses (i), (ii), (iii), (v) and (vi)
shall be expressed as a dollar amount per $[_________] of initial Certificate
Invested Amount of a Certificate.
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, the Noteholders or the
Certificateholders, except as provided under this Agreement, for any action
taken or for refraining from the taking of any action pursuant to this Agreement
or for errors in judgment; provided, however, that this provision shall not
protect the Servicer or any such Person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of its duties or by reason of reckless disregard of
obligations and duties under this Agreement. The Servicer and any director,
officer, employee or agent of the Servicer may rely in good faith on the advice
of counsel or on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder.
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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 Receivables 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 Certificateholders under this
Agreement and 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 Receivables
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 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.
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ARTICLE IV
ADDITIONAL COVENANTS
Section 4.1. Covenants of the Servicer Regarding the Receivables.
(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 Receivable is paid full, maintain the Records with respect to each
Receivable, including records of all payments received, credits granted and
property returned. The Servicer will permit representatives of the Issuer or its
designee at any reasonable time during normal business hours, and at such times
outside of normal business hours as the Issuer shall reasonably request, (i) to
inspect and make copies of and abstracts from such records, and (ii) to visit
the properties of the Servicer utilized in connection with the collection,
processing or servicing of the Receivables for the purpose of examining such
Records, and to discuss matters relating to the Receivables 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 Receivable Balance
in respect of any Receivables; provided that no one other than the Servicer,
subject to any other arrangements made by the Issuer, will contact an Obligor
unless Servicer Default has occurred. The Servicer agrees to render to the
Issuer such clerical and other assistance as may be reasonably requested with
regard to the foregoing.
(b) Servicer Default. If a Servicer Default shall have occurred and be
continuing, promptly upon request therefor, the Servicer shall deliver to the
Issuer records reflecting activity through the close of business on the
immediately preceding Business Day. Upon the occurrence and during the
continuation of a Servicer Default, the Servicer shall (i) deliver and turn over
to the Issuer or to its representatives, or at the option of the Issuer shall
provide the Issuer or its representatives with access to, at any time, on demand
of the Issuer, all of the Servicer's facilities, personnel, books and records
pertaining to the Receivables, including all Records, and (ii) allow the Issuer
to occupy the premises of the Servicer where such books, records and Records are
maintained, and 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 Receivables.
(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 Receivable, and (ii) of the occurrence of any
event known to it which would have a material adverse effect on the aggregate
value of the Receivables.
(d) Further Assurances. The Servicer shall furnish to the Issuer from
time to time such statements and schedules further identifying and describing
the Receivables and such other reports in connection with the Receivables as the
Issuer may reasonably request, all in reasonable detail.
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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 Collections on the Receivables under this Agreement until a
Successor Servicer has assumed the responsibilities and obligations of the
Servicer in accordance with Section 6.2.
ARTICLE VI
SUCCESSOR SERVICER
Section 6.1. Resignation of Servicer. The Servicer may resign in the
circumstances set forth in clause (a) or (b) of this Section 6.1.
(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.
-10-
(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 (ii) to the
Successor Servicer, at a place selected by the Successor Servicer, of
all Servicing Records and other information with respect to the
Receivables. The Servicer shall account for all funds and shall execute
and deliver such instruments and do such other things as may reasonably
be required to more fully and definitely vest and confirm in the
Successor Servicer all rights, powers, duties, responsibilities,
obligations and liabilities of the Servicer; and
(b) the Servicer shall terminate each Sub-Servicing Agreement
that may have been entered into by it and the Successor Servicer shall
not be deemed to have assumed any of the Servicer's interest therein or
to have replaced the Servicer as a party to any such Sub-Servicing
Agreement.
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-
ARTICLE VII
INDEMNIFICATION
Section 7.1. Indemnities by the Servicer. Without limiting any other
rights that the Issuer or its Affiliates or any 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 Receivables. 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 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
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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: 203/000-0000
Facsimile: 203/796-1313
If to the Issuer:
[________________________]
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: [__________]
Telephone: [__________]
Facsimile: [__________]
Section 8.2. Binding Effect; Assignability. This Agreement shall be
binding upon and inure to the benefit of the Issuer and the Servicer and their
respective successors and permitted assigns. Except as set forth in Section 2.1,
or Article VI, the Servicer may not assign, transfer, hypothecate or otherwise
convey any of its rights or obligations hereunder or interests herein without
the express prior written consent of the Issuer and unless the Rating Agency
Condition shall have been satisfied with respect to any such assignment. Any
such purported assignment, transfer, hypothecation or other conveyance by the
Servicer without the prior express written consent of the Issuer shall be void.
The Issuer may, at any time, assign any of its rights and obligations under this
Agreement to any Person and any such assignee may further assign at any time its
rights and obligations under this Agreement, in each case, without the consent
of the Servicer. Each of the Issuer and the Servicer acknowledges and agrees
that, upon any such assignment, the assignee thereof may enforce directly, all
of the obligations of the Issuer or the Servicer hereunder, as applicable.
Section 8.3. Termination; Survival of Obligations Upon Maturity Date or
Redemption Date. This Agreement shall create and constitute the continuing
obligations of the parties hereto in accordance with its terms, and shall remain
in full force and effect until the earlier of the Class B Note Maturity Date or
the Redemption Date; provided, that the rights and remedies provided for herein
with respect to any breach of any representation or warranty made by the
Servicer pursuant to Article III, the indemnification and payment provisions of
Article VII and Sections 8.4, 8.5 and 8.13 shall be continuing and shall survive
the later of the Class B Note Maturity Date or the Redemption Date, as
applicable. Following the final distribution date of the Certificates, the
Servicer shall promptly provide written notice to the [Owner Trustee] [Managing
Member] of a notice of termination of the Issuer's obligations.
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Section 8.4. Confidentiality. Notwithstanding anything herein to the
contrary, there is no restriction (either express or implied) on any disclosure
or dissemination of the structure or tax aspects of the transaction contemplated
by the Related Documents. Furthermore, each party hereto acknowledges that it
has no proprietary rights to any tax matter or tax idea contemplated by the
Related Documents or to any element of the transaction structure contemplated by
the Related Documents.
Section 8.5. No Proceedings. The Servicer hereby agrees that, from and
after the Closing Date and until the date one year plus one day following the
earlier of the Class B Note Maturity Date or the Redemption Date, as applicable,
it will not, directly or indirectly, institute or cause to be instituted against
the Issuer any proceeding of the type referred to in the definition of
"Bankruptcy Event"; provided that the foregoing shall not in any way limit the
Servicer's right to pursue any other creditor rights or remedies that the
Servicer may have for claims against the Issuer.
Section 8.6. Complete Agreement; Modification of Agreement. This
Agreement constitutes the complete agreement among the parties hereto with
respect to the subject matter hereof, supersedes all prior agreements and
understandings relating to the subject matter hereof, and may not be modified,
altered or amended except as set forth in Section 8.7.
Section 8.7. 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 8.8. No Waiver; Remedies. The failure by the Issuer , at any
time or times, to require strict performance by the Servicer of any provision of
this Agreement shall not waive, affect or diminish any right of the Issuer
thereafter to demand strict compliance and performance herewith. Any suspension
or waiver of any breach or default hereunder shall not suspend, waive or affect
any other breach or default whether the same is prior or subsequent thereto and
whether the same or of a different type. None of the undertakings, agreements,
warranties, covenants and representations of the Servicer contained in this
Agreement and no breach or default by the Servicer hereunder, shall be deemed to
have been suspended or waived by the Issuer unless such waiver or suspension is
by an instrument in writing signed by an officer of or other duly authorized
signatory of the Issuer and directed to the Servicer specifying such suspension
or waiver. The rights and remedies of the Issuer under this Agreement shall be
cumulative and nonexclusive of any other rights and remedies that the Issuer may
have under any other agreement, including the other Related Documents, by
operation of law or otherwise.
Section 8.9. 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
-14-
PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(a) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE
STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK
CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS
OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER
ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED, THAT EACH PARTY
HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW
YORK CITY. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND
EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE
BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY
HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND
OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE
OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED
OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN
ACCORDANCE WITH SECTION 9.1 AND THAT SERVICE SO MADE SHALL BE DEEMED
COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR
THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE
PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY
HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(b) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX
FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND
FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES
DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE
BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO
WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING
BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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Section 8.10. 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 8.11. 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 8.12. 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 8.13. Limited Recourse. a) The obligations of the Issuer under
this Agreement are solely the obligations of the Issuer. No recourse shall be
had for any obligation or claim arising out of or based upon this Agreement
against any incorporator, shareholder, officer, manager, member or director,
past, present or future, of the Issuer or of any successor or of its constituent
members or its other Affiliates, either directly or through the Issuer or any
successor, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by acceptance hereof and as part of the consideration for the acceptance
hereof, expressly waived and released. Any accrued obligations owing by the
Issuer under this Agreement shall be payable by the Issuer solely to the extent
that funds are available therefor from time to time in accordance with the
provisions of Section 2.13 (provided that such accrued obligations shall not be
extinguished until paid in full).
(b) The obligations of the Servicer under this Agreement are
solely the obligations of the Servicer. No recourse shall be had for
the payment of any amount owing hereunder or any other obligation or
claim arising out of or based upon this Agreement, against any
shareholder, employee, officer, manager, member or director, agent or
organizer, past, present or future, of the Servicer or of any successor
thereto, either directly or through the Servicer or any successor
thereto, whether by virtue of any constitution, statute or rule of law
or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by acceptance hereof and as part of the
consideration for the acceptance hereof, expressly waived and released.
Section 8.14. 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 8.15. 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
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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 8.16. 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]
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IN WITNESS WHEREOF, the parties have caused this Servicing Agreement to
be executed by their respective representatives thereunto duly authorized, as of
the date first above written.
[_________________________________]
By: _______________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Servicer
By: ______________________________
Name:
Title:
B-1
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 XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Surveillance Department
[INSERT FORM OF CERTIFICATE]
A-1
EXHIBIT B
to Servicing Agreement
FORM OF CERTIFICATEHOLDER'S STATEMENT
PURSUANT TO SECTION 2.16
Payment Date: ______________________
(i) Certificateholders' Distribution on Invested Amount:
(a) Certificates: ___________ ($_____ per $1,000 original principal
amount)
(b) Total: __________
(ii) Certificateholders' Distributable Invested Amount:
(a) Certificates: ___________ ($_____ per $1,000 original principal
amount)
(b) Total: __________
(iii) Pool Balance at end of the preceding Collection Period: _____
(iv) After giving effect to distributions on this Payment Date:
(1) Certificate Invested Amount: __________
(2) Certificate Pool Factor: __________
(v) Amount of Servicer Fee: ____ ($_____ per $1,000 certificateholders'
distributable invested amount)
(vi) Amount of Servicer Advances: ____ ($_____ per $1,000
certificateholders' distributable invested amount)
(vii) Amount of Administration Fee: ____ ($____ per $1,000
certificateholders' distributable invested amount)
(viii) Aggregate amount of Realized Losses for the Collection Period:
__________
(ix) Aggregate Purchase Amounts for the Collection Period: __________
B-1
EXHIBIT 99(c)
ANNEX A
to
SERVICING AGREEMENT
dated as of
[___________]
Definitions and Interpretation
EXHIBIT 99(c)
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.
"Adverse Claim" means any claim of ownership or any Lien, 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.
"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.
"Amount Financed" with respect to a Receivable means the amount
advanced under such Receivable toward the purchase price of the Equipment and
any related costs, including the Termination Value, and any insurance financed
thereby.
"Annual Percentage Rate" or "APR" of a Receivable means, the interest
rate or annual rate of finance charges stated in or, if not explicitly stated,
the implicit finance charge used by the Seller to calculate periodic payments
with respect to the related Loan.
"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] [Owner
Trustee], 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.
"Bankruptcy Code" means the provisions of title 11 of the United States
Code, 11 U.S.C. Sections 101 et seq.
"Bankruptcy Event" means, as to any Person, any of the following
events: (a) a case or proceeding shall have been commenced against such Person
seeking a decree or order in respect of such Person (i) under the Bankruptcy
Code or any other applicable federal, state or foreign bankruptcy or other
similar law, (ii) appointing a custodian, receiver, liquidator, assignee,
trustee or sequestrator (or similar official) for any such Person or for any
substantial part of such
Person's assets, or (iii) ordering the winding-up or liquidation of the affairs
of any such Person; or (b) such Person shall (i) file a petition seeking relief
under the Bankruptcy Code or any other applicable federal, state or foreign
bankruptcy or other similar law, (ii) consent or fail to object in a timely and
appropriate manner to the institution of proceedings thereunder or to the filing
of any such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar
official) for such Person or for any substantial part of such Person's assets,
(iii) make an assignment for the benefit of creditors, or (iv) take any
corporate action in furtherance of any of the foregoing.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which banks are required or permitted to be closed in the State of New York
or the State of Connecticut.
"Certificate" means a certificate evidencing a beneficial interest of a
Certificateholder in the Issuer, substantially in the form of Exhibit [ ] to the
[Trust] [Limited Liability Company] Agreement.
"Certificate Distribution Account" means the Eligible Deposit Account
established and maintained in the name of the Issuer under Section 2.12 of the
Servicing Agreement.
"Certificateholder" means a Person in whose name a Certificate is
registered.
"Certificateholders' Distributable Invested Amount" means with respect
to any Payment Date, zero until the Outstanding Principal Balance of the Class B
Notes has been reduced to zero and thereafter shall equal the Class B
Noteholders' Monthly Principal Payable Amount until the Certificate Invested
Amount of the Certificates has been reduced to zero and thereafter shall be
zero.
"Certificateholders' Distribution on Invested Amount" means, with
respect to any Payment Date (the "current Payment Date") the sum of (a) interest
accrued from and including the preceding Payment Date (or, in the case of the
first Payment Date, the Closing Date) to but excluding the current Payment Date
at the Distribution Rate on the Certificate Invested Amount on the preceding
Payment Date after giving effect to all changes therein on such preceding
Payment Date, plus (b) the Certificateholders' Distribution on Invested Amount
Shortfall for the current Payment Date.
"Certificateholders' Distributable Invested Amount Shortfall" means,
with respect to any Payment Date (the "current Payment Date"), the excess of the
Certificateholders' Distribution on Invested Amount for the preceding Payment
Date over the amount in respect of the Certificateholders' Distribution on
Invested Amount that was actually deposited in the Certificate Distribution
Account on such preceding Payment Date, plus interest on such excess, to the
extent permitted by law, at the Distribution Rate from such preceding Payment
Date to but excluding the current Payment Date.
"Certificate Invested Amount" equals, initially, $[_________] and,
thereafter, equals such amount reduced by all amounts allocable to principal
previously distributed to Certificateholders'.
-2-
"Certificate Pool Factor" means, as of the close of business on any
Payment Date, the Certificate Invested Amount divided by the initial Certificate
Invested Amount (carried out to the seventh decimal place). The Certificate Pool
Factor is 1.0000000 as of the Closing Date, and, thereafter, will decline to
reflect reductions in the Certificate Invested Amount.
"Class A Noteholders' Monthly Principal Payable Amount" means, for any
payment date, the excess of (1) the Outstanding Principal Balance of the Class A
Notes minus (2) [ %] of the Pool Balance and on the final Maturity Date for
each of the Class A Notes, the Class A Noteholders' Monthly Principal Payable
Amount will include the amount necessary (after giving effect to the other
amounts to be deposited in the Note Distribution Account on that Payment Date
and allocable to principal) to reduce the outstanding principal amount of the
related Class A Notes to zero; except that in no event will the Class A
Noteholders' Monthly Principal Payable Amount exceed the outstanding amount of
the Class A Notes.
"Class A Note" means any of the Issuer's [___]% Class A Notes.
"Class A Note Maturity Date" means [____] Payment Date.
"Class A Noteholder" means any holder of record of a Class A Note.
"Class B Noteholders' Monthly Principal Payable Amount" means, for any
Payment Date, the excess of (1) the Outstanding Principal Balance of the Class B
Notes minus (2) % of the Pool Balance; except that (a) in no event will the
Class B Noteholders' Monthly Principal Payable Amount exceed the lesser of (1)
the sum of the outstanding principal amounts of the Class A Notes (after giving
effect to payments on the Class A Notes on that Payment Date) and the Class B
Notes over the Pool Balance and (2) the Outstanding Principal Amount of the
Class B Notes, and (b) on the final Maturity Date for the Class B Notes, the
Class B Noteholders' Monthly Principal Payable Amount will include the amount
necessary (after giving effect to the other amounts to be deposited in the Note
Distribution Account on that Payment Date and allocable to principal) to reduce
the Outstanding Principal Amount of the related Class B Notes to zero.
"Class B Note" means any of the Issuer's [___]% Class B Notes.
"Class B Note Maturity Date" means [____] Payment Date.
"Class B Noteholder" means any holder of record of a Class B Note.
"Closing Date" means [_______________], 2002.
"Collection Account" means the account designated as such, established
and maintained by the Servicer in accordance with Section 2.14 of the Servicing
Agreement.
"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).
-3-
"Collections" means, with respect to any Payment Date, the aggregate
amount of collections on or with respect to the Receivables with respect to the
related Collection Period. Collections on or with respect to the Receivables
include all payments made by or on behalf of the Obligors (excluding any late
fees, prepayment charges, extension fees and other administrative fees or
similar charges allowed by applicable law with respect to the Receivables that
constitute part of the Servicing Fees), any Recoveries, any net swap receipts
and any swap termination payments received pursuant to the Swap Agreement, any
proceeds from insurance policies covering the Equipment or related Obligor,
Liquidation Proceeds, the Purchase Amount of each Receivable that became a
Purchased Receivable respect of the related Collection Period (to the extent
deposited into the Collection Account), Investment Earnings for such Payment
Date, and payments made by a lessee pursuant to its obligation (if any) to pay
the Termination Value pursuant to the related Receivable; provided, however,
that the Collections shall not include: all payments or proceeds (including
Liquidation Proceeds) of any Receivables the Purchase Amount of which has been
included in the Collections in a prior Collection Period.
"Credit and Collection Policies" means, with respect to each type of
Receivable, the Seller's policies, practices and procedures for providing
equipment financing, including the policies and procedures for determining the
creditworthiness of Obligors and the extension of credit to Obligors, and
relating to the maintenance of such types of receivables and collections on such
types of receivables, as such policies and procedures may be amended from time
to time.
"Cut-Off Date" means [______________].
"Daily Deposit Event" means (i) a reduction in the Servicer's rating
below "BBB-" by S&P or "Baa3" by Moody's or if the Servicer is not rated, the
Servicer's long-term debt obligations being deemed to be less than investment
grade or (ii) the reduction of General Electric Company's long-term debt rating
below "A+" by S&P or "A2" by Moody's.
"Determination Date" means with respect to any Transfer Date, the
second Business Day prior to such Transfer Date.
"Distribution Rate" means [_______]% per annum, computed on the basis
of a [360-day year of twelve 30-day months.]
"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.
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"Equipment" means any new or used trucks and trailers, aircraft,
restaurant equipment, maritime assets, construction equipment, machine tools,
furniture or other equipment, together with all accessions thereto securing an
Obligor's indebtedness under the respective Receivable.
"Event of Default" is defined in the Indenture.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect on the Closing Date, modified by Accounting
Changes as GAAP is further defined in Section 2(a) of this Annex A.
"GE Capital" means General Electric Capital Corporation, a Delaware
corporation.
"Indenture" means the Indenture, dated [_________________], 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.
"Interest Rate" means [insert rate formulation].
"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.
"Issuer" means [Issuer], a Delaware [limited liability company]
[business 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.
["Limited Liability Company Agreement" means the Limited Liability
Company Agreement of the Issuer, dated as of [__________________], 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 Receivable by operation of law as a result of any act or omission by
the related Obligor.
"Liquidated Receivable" means any Receivable liquidated through the
sale or other disposition of the related Equipment or that has, after using all
reasonable efforts to realize upon the Equipment, been charged off in accordance
with the Credit and Collection Policy without realizing upon the Equipment.
"Liquidation Proceeds" means, with respect to any Liquidated
Receivable, the amounts collected in respect thereof from whatever source
(including the proceeds of insurance policies with respect to the related
Equipment or Obligor), 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
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on such Liquidated Receivable or any creditor of such Obligor to the extent
required by applicable law or agreement.
"Loan" means any agreement (including any invoice) pursuant to, or
under which, an Obligor shall be obligated to make payments with respect to any
Receivable.
"Loan Value" means, with respect to any Loan on any day (including the
Cutoff Date), the sum of (a) the present value of the future Scheduled Payments
discounted monthly at an annual rate equal to the APR for such Loan, plus (b)
the amount of any past due payments. There shall be deemed to be no Scheduled
Payments due on a Liquidated Receivable.
["Managing Member" means [__________], a [__________] corporation or
any successor Managing Member under the Limited Liability Company Agreement.]
"Material Adverse Effect" means, with respect to any Person, a material
adverse effect on (a) the business, assets, liabilities, operations, prospects
or financial or other condition of such Person, (b) the ability of such Person
to perform any of its obligations under the Related Documents in accordance with
the terms thereof, (c) the validity or enforceability of any Related Document or
the rights and remedies of such Person under any Related Document or (d) the
Receivables or the Loans, as applicable, therefor, any interest related thereto
or the ownership interests or Liens of such Person thereon or the priority of
such interests or Liens.
"Maturity Date" means the Class A note Maturity Date and the Class B
Note Maturity Date.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor
thereto.
"Monthly Interest Amount Payable" means, with respect to any Payment
Date (the "current Payment Date") and any Class of Notes, an amount equal to the
sum of (a) the aggregate amount of interest accrued on that Class of Notes at
the applicable Interest Rate from and including the preceding Payment Date (or,
in the case of the initial Payment Date from and including the Closing Date) to
but excluding the current Payment Date plus (b) the Monthly Interest Shortfall
for that Class of Notes and the current Payment Date.
"Monthly Interest Shortfall" means, with respect to any Payment Date
(the "current Payment Date") and any Class of Notes, the excess of the Monthly
Interest Amount Payable for the preceding Payment Date over the amount in
respect of interest on that Class of Notes that was actually paid to the
Noteholder for that Class of Notes on such preceding Payment Date, plus interest
on such excess, to the extent permitted by law, at a rate per annum equal to the
Interest Rate on that Class of Notes, from such preceding Payment Date to but
excluding the current Payment Date.
"Notes" means the notes issued under the Indenture.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 2.4 of the Indenture.
"Noteholder" means the person in whose name a Note is registered on the
Note Register.
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"Obligor" means, as to each Receivable, any Person who owes payments
under the Receivable.
"Officer's Certificate" means, with respect to any Person, a
certificate signed by an Authorized Officer of such Person.
"Outstanding Servicing Advances" means, with respect to the Settlement
Date, the sum, as of the related Record Date, of all previous Servicer Advances
as reduced by reimbursements of Servicer Advances pursuant to Section 2.13.
"Outstanding Principal Balance" is defined in the Indenture.
["Owner Trustee" means [___________________], a [______________]
banking corporation, not in its individual capacity, but solely as owner trustee
under the Trust Agreement, and any successor Owner Trustee.]
"Payment Date" means, with respect to each Collection Period, the
[___________] 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 [_____________].
"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.
"Pool Balance" means, at any time, the sum of the aggregate Loan Values
of the Receivables as of the beginning of a Collection Period, after giving
effect to all payments received by the Seller or Servicer, as applicable, from
Obligors and Purchase Amounts to be remitted by the Seller or Servicer, as
applicable, with respect to the preceding Collection Period and all Realized
Losses on Receivables liquidated during such preceding Collection Period.
"Precomputed Receivable" means any Receivable 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 the
Amount Financed are determined according to the sum of periodic balances, the
sum of monthly payments or any equivalent method or are monthly actuarial
receivables.
"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 Receivable, as of the day
immediately prior to such Loan becoming a Liquidated Receivable 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 Receivables Purchase
and Sale Agreement, dated as of [______________], by the Transferor and the
Issuer, as the same may be amended from time to time.
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"Rating Agency" means Moody's or S&P.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given prior notice thereof and that each of the
Rating Agencies 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.
"Realized Losses" means the excess of the Receivable Balance of
Liquidated Receivables plus accrued but unpaid interest thereon over Liquidation
Proceeds.
"Receivable" means any Loan included in the Schedule of Receivables.
"Receivable Balance" means, as of the close of business on the last day
of a Collection Period, the Amount Financed minus the sum of: (i) that portion
of all Scheduled Payments due on or prior to such day allocable to principal
using (x) in the case of a Precomputed Receivable, the actuarial or constant
yield method and (y) in the case of a Simple Interest Receivable, the simple
interest method, (ii) any refunded portion of insurance premiums included in the
Amount Financed, (iii) any payment of the Purchase Amount with respect to the
Receivable allocable to principal and (iv) any prepayment in full or any partial
prepayments applied to reduce the Principal Balance of the Receivable.
"Record Date" means, with respect to a Payment Date, the close of
business on the [____________] day of the calendar month in which such Payment
Date occurs.
"Records" means all notes, leases, security agreements and other
documents, books, records and other information (including computer programs,
tapes, disks, data processing software and related property and rights) prepared
and maintained by any of the Seller, the Servicer, any Sub-Servicer or the
Issuer with respect to the Receivables and the Obligors thereunder.
"Recoveries" means, with respect to any Liquidated Receivable, monies
collected in respect thereof, from whatever source (other than from the sale or
other disposition of the Equipment), after such Receivable became a Liquidated
Receivable.
"Redemption Date" is defined in the Indenture.
"Related Documents" means the Sale Agreement, the Purchase and Sale
Agreement, the Servicing Agreement, the Indenture, the Limited Liability
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 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.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
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"Sale Agreement" means the Receivables Sale Agreement, dated [ ],
2002, between Seller and the Purchaser.
"Schedule of Receivables" is the schedule of Receivables attached as
Schedule I to each of the Sale Agreement and the Purchase and Sale Agreement
(which schedule may be in the form of microfiche).
"Scheduled Payment" on a Receivable means that portion of the payment
required to be made by the Obligor during any Collection Period sufficient to
amortize the Receivable Balance under (x) in the case of a Precomputed
Receivable, the actuarial method or (y) in the case of a Simple Interest
Receivable, the simple interest method, in each case, over the term of the
Receivable and to provide interest at the APR, provided that Termination Values
shall also constitute Scheduled Payments.
"Seller" means GE Capital, a Delaware corporation, its successors and
assigns.
"Servicer" means each of GE Capital, in its capacity as Servicer under
this Agreement, or any other Person designated as a Successor Servicer.
"Servicer Advance" means, the amount as of the Record Date, which the
Servicer may, but is not required to, advance pursuant to Section 2.5.
"Servicer Default" means an event specified in Section 5.1 of the
Servicing Agreement.
"Servicer Indemnified Person" is defined in Section 7.1.
"Servicer Termination Notice" is defined in Section 5.1 of the
Servicing Agreement.
"Servicer's Certificate" means an Officer's Certificate of the Servicer
delivered pursuant to Section 2.7 of the Servicing Agreement, substantially in
the form of Exhibit A thereto.
"Servicing Agreement" is defined in the preamble.
"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 Receivables 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 (a) so long as the Servicer is GE Capital or
an Affiliate thereof, [__]% or (b) so long as the Servicer is not GE Capital or
an Affiliate thereof, [ ]%.
"Servicing Officer" means, any officer of the Servicer (or any
Sub-Servicer) whose name appears on a list of servicing officers attached to an
Officer's Certificate furnished to RFC by the Servicer, as such list may from
time to time be amended.
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"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 Receivables and the Obligors thereunder.
"Simple Interest Receivable" means any Receivable 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 Receivable 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).
"Sub-Servicer" means any Person with whom the Servicer enters into a
Sub-Servicing Agreement.
"Sub-Servicing Agreement" means any written contract entered into
between the Servicer and any Sub-Servicer pursuant to and in accordance with
Section 2.12 relating to the servicing, administration or collection of the
Receivables.
"Successor Servicer" is defined in Section 6.2.
"Swap Agreement" means the swap agreement dated as of [______________]
between the Issuer and the Swap Counterparty, as the same may be amended from
time to time.
"Swap Counterparty" means the swap counterparty party to the Swap
Agreement.
"Termination Value" means the "Termination Value" (if any) payable by
lessee pursuant to the applicable Loan.
"Transferor" means [__________________] 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.
"Unrelated Amounts" is defined in Section 2.3 of the Servicing
Agreement.
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
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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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