EXHIBIT 4 (g)
EXECUTION VERSION
ADMINISTRATION AGREEMENT
between
GE Commercial Equipment Financing LLC, Series 2004-1,
as Issuer
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrator
Dated as of November 16, 2004
TABLE OF CONTENTS
PAGE
1. Duties of the Administrator............................................. 1
2. Records................................................................. 6
3. Compensation............................................................ 6
4. Additional Information To Be Furnished to the Issuer.................... 6
5. Independence of the Administrator....................................... 6
6. No Joint Venture........................................................ 6
7. Other Activities of the Administrator................................... 7
8. Term of Agreement; Resignation and Removal of the Administrator......... 7
9. Action upon Termination, Resignation or Removal......................... 8
10. Notices................................................................. 8
11. Amendments.............................................................. 9
12. Successors and Assigns.................................................. 9
13. Governing Law........................................................... 9
14. Other Interpretive Matters.............................................. 11
15. Headings................................................................ 11
16. Counterparts............................................................ 11
17. Severability............................................................ 11
18. Not Applicable to the Administrator in Other Capacities................. 11
19. Limitation of Liability of the Managing Member.......................... 11
20. Indemnification......................................................... 12
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ADMINISTRATION AGREEMENT dated as of November 16, 2004, between GE
Commercial Equipment Financing LLC, Series 2004-1, a Delaware limited liability
company (the "Issuer"), and General Electric Capital Corporation, a Delaware
corporation, as administrator (the "Administrator").
RECITALS
WHEREAS, the Issuer is issuing: (a) One-Month LIBOR - 0.04% Class A-1
Notes, One-Month LIBOR + 0.01% Class A-2 Notes, One-Month LIBOR + 0.02% Class
A-3 Notes, One-Month LIBOR + 0.06% Class A-4 Notes (together, the "Class A
Notes"), One-Month LIBOR + 0.20% Class B Notes (the "Class B Notes") and
One-Month LIBOR + 0.60% Class C Notes (the "Class C Notes," and, together with
the Class A Notes and the Class B Notes, the "Notes") pursuant to the Indenture,
dated as of the date hereof (as amended and supplemented from time to time in
accordance with the provisions thereof, the "Indenture"), between the Issuer and
the Indenture Trustee (capitalized terms used herein and not otherwise defined
herein are defined in the Indenture);
WHEREAS, the Issuer has entered into certain agreements in connection with
the issuance of the Notes and of certain beneficial ownership interests of the
Issuer, including: (i) a Loan Purchase and Sale Agreement, dated as of the date
hereof (as amended and supplemented from time to time, the "Purchase and Sale
Agreement"), between the Issuer and CEF Equipment Holding L.L.C., a Delaware
limited liability company, as seller (the "Transferor"), (ii) the Indenture and
(iii) a Servicing Agreement, dated as of the date hereof (the "Servicing
Agreement), between the Issuer and General Electric Capital Corporation, as
servicer (in such capacity, the "Servicer") (the Servicing Agreement, the
Purchase and Sale Agreement and the Indenture, being hereinafter referred to
collectively as the "Related Documents");
WHEREAS, pursuant to the Related Documents, the Issuer is required to
perform certain duties in connection with: (a) the Notes and the collateral
therefor pledged pursuant to the Indenture (the "Collateral") and (b) the
ownership interests in the Issuer (the registered holders of such interests
being referred to herein as the "Owners");
WHEREAS, the Issuer desires to have the Administrator perform certain of
the duties of the Issuer referred to in the preceding clause, and to provide
such additional services consistent with this Agreement and the Related
Documents as the Issuer may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer on the
terms set forth herein;
NOW, THEREFORE, in consideration of the mutual terms and covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. Duties of the Administrator.
(a) Duties with Respect to the Indenture. The Administrator, on behalf
of the Issuer, shall perform the administrative duties of the Issuer under the
Indenture. In addition, the Administrator, on behalf of the Issuer, shall
consult with the Indenture Trustee regarding the
duties of the Issuer and the Indenture Trustee under the Indenture. The
Administrator, on behalf of the Issuer, shall monitor the performance of the
Issuer and shall advise the Issuer when action is necessary to comply with the
Issuer's duties under the Indenture. The Administrator, on behalf of the Issuer,
shall prepare for execution by the Issuer or shall cause the preparation by
other appropriate Persons of all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Issuer to prepare, file
or deliver pursuant to the Indenture. In furtherance of the foregoing, the
Administrator, on behalf of the Issuer, shall take all appropriate action that
is the duty of the Issuer to take pursuant to such documents, including, without
limitation, such of the foregoing as are required with respect to the following
matters (references in this Section are to sections of the Indenture):
(i) the duty to cause the Note Register to be kept and to give the
Indenture Trustee notice of any appointment of a new Note Registrar and
the location, or change in location, of the Note Register (Section 2.4);
(ii) the notification to the Indenture Trustee of the Payment Date
on which the final installment of principal and interest on the Notes will
be paid (Section 2.7);
(iii) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes and delivery of the
same to the Indenture Trustee (Section 2.2);
(iv) the maintenance of an office at the Corporate Trust Office,
for registration of transfer or exchange of Notes and where notices and
demands to or upon the Issuer in respect of the Notes and the Indenture
may be served (Section 3.2);
(v) the duty to cause newly appointed Paying Agents, if any, to
deliver to the Indenture Trustee the instrument specified in the Indenture
regarding funds held in trust (Sections 3.3 and 6.16);
(vi) the direction to the Paying Agents to pay all sums held in
trust by such Paying Agents to the Indenture Trustee for purposes of
obtaining the satisfaction and discharge of the Indenture (Sections 3.3
and 6.16);
(vii) the observance and compliance by the Issuer in all material
respects with (i) all laws applicable to it and (ii) all requisite and
appropriate organizational and other formalities in the management of its
business and affairs and the conduct of the transactions contemplated by
the Indenture (Section 3.4);
(viii) the preparation of all supplements, amendments and all
writings, and such other actions, necessary or advisable to protect the
Collateral in accordance with Section 3.5 of the Indenture (Section 3.5);
(ix) the delivery of the Opinion of Counsel on the Closing Date and
the annual delivery of Opinions of Counsel, in accordance with Section 3.6
of the Indenture, as to the Collateral, and the annual delivery of the
Officers' Certificate and certain other statements, in accordance with
Section 3.9 of the Indenture, as to compliance with the Indenture
(Sections 3.6 and 3.9);
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(x) upon a consolidation or merger of the Issuer, the delivery to
the Indenture Trustee of an Officer's Certificate and an Opinion of
Counsel in accordance with Section 3.10 of the Indenture (Section
3.10(l));
(xi) the preparation, execution and filing of all forms and
documents necessary to pay all taxes in accordance with Section 3.8 of the
Indenture (Section 3.8);
(xii) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations under the
Indenture (Section 3.11(b));
(xiii) the delivery of notice to the Indenture Trustee and the
Rating Agencies of each Event of Default and each default by the Servicer
of its obligations under the Servicing Agreement, each default of the
Transferor under the Purchase and Sale Agreement and each Swap Event of
Default and Swap Termination Event under the Swap Agreement (Section
3.12);
(xiv) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officers' Certificate and the obtaining of an Opinion of Counsel and an
Independent Certificate relating thereto (Section 4.1);
(xv) the compliance with any written directive of the Indenture
Trustee to the Issuer with respect to the sale of the Collateral in a
commercially reasonable manner if an Event of Default shall have occurred
and be continuing (Section 5.2(a)(vi));
(xvi) the delivery of a written demand to the Servicer to deliver
the Loan Files to the Indenture Trustee upon receipt by the Issuer of a
written demand for the same from the Indenture Trustee (Section
5.2(a)(vii));
(xvii) the preparation and delivery of notice to Noteholders of the
removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (Section 6.8);
(xviii) the furnishing to the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee is
not the Note Registrar (Section 7.1);
(xix) the preparation, execution and filing with the Commission and
the Indenture Trustee of the annual reports and of the information,
documents and other reports required to be filed on a periodic basis with,
and summaries thereof as may be required by rules and regulations
prescribed by, the Commission or, if the Issuer is not required to file
with the Commission periodic information, documents or reports, then the
preparation, execution and filing with the Commission and the Indenture
Trustee of such supplementary and periodic information, documents and
reports as may be prescribed by the Commission and, in each case, the
transmission of such summaries, as necessary, to the Noteholders (Section
7.3);
(xx) the opening of one or more accounts in the Issuer's name, the
preparation of Issuer Orders, Officers' Certificates and Opinions of
Counsel and all other actions
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necessary with respect to investment and reinvestment of funds in the
Trust Accounts (Sections 8.2 and 8.6);
(xxi) the preparation of an Issuer Request and Officers' Certificate
and the obtaining of an Opinion of Counsel and Independent Certificates,
if necessary, for the release of the Collateral as defined in the
Indenture (Sections 8.7 and 8.8);
(xxii) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and the mailing to the Noteholders of notices with respect to
such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(xxiii) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.5);
(xxiv) the notification of Noteholders of redemption of the Notes
(Section 10.2);
(xxv) the preparation of all Officers' Certificates, Opinions of
Counsel and Independent Certificates with respect to any requests by the
Issuer to the Indenture Trustee to take an action under the Indenture
other than any request that (a) the Indenture Trustee authenticate the
Notes or (b) the Indenture Trustee pay amounts due and payable to the
Issuer under the Indenture to the Issuer's assignee (Section 11.1(a));
(xxvi) the preparation and delivery of Officers' Certificates and
the obtaining of Independent Certificates, if necessary, for the release
of property from the lien of the Indenture (Section 11.1(b));
(xxvii) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to alternate payment and
notice provisions (Section 11.6);
(xxviii) the recording of the Indenture, if applicable (Section
11.13); and
(xxix) the filing with the Commission of the appropriate forms
necessary to suspend reporting requirements under the Securities Exchange
Act (Section 7.4).
(b) Duties with Respect to the Issuer. (i) The Administrator shall
perform such calculations, and shall prepare for execution by the Issuer or
shall cause the preparation by other appropriate Persons, of all such documents,
reports, filings, instruments, certificates and opinions, as it shall be the
duty of the Issuer, to perform, prepare, file or deliver pursuant to the Related
Documents. At the request of the Issuer, the Administrator shall take all
appropriate action that it is the duty of the Issuer to take pursuant to the
Related Documents. Subject to Section 5 of this Agreement, and in accordance
with the directions of the Issuer, the Administrator, on behalf of the Issuer,
shall administer, perform or supervise the performance of such other activities
in connection with the Collateral (including the Related Documents) as are not
covered by any of the foregoing and as are expressly requested by the Issuer,
and are reasonably within the capability of the Administrator.
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(ii) Notwithstanding anything in this Agreement or the Related
Documents to the contrary, the Administrator shall be responsible for
promptly notifying the Issuer, in the event that any withholding tax is
imposed on the Issuer's payments (or allocations of income). Any such
notice shall specify the amount of any withholding tax required to be
withheld pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related
Documents to the contrary, the Administrator shall be responsible for
performance of the duties of the Managing Member set forth in Sections 8.2
and 8.3 of the Issuer Limited Liability Company Agreement with respect to,
among other things, accounting and reports to members; provided, however,
that the Managing Member shall retain responsibility for the distribution
of the Schedule K-1s necessary to enable each member to prepare its
Federal and State income tax returns.
(iv) The Administrator shall satisfy its obligations with respect
to clauses (ii) and (iii) by retaining, at the expense of the Issuer, a
firm of independent certified public accountants (the "Accountants")
acceptable to the Issuer, which Accountants shall perform the obligations
of the Administrator thereunder. In connection with clause (ii), the
Accountants will provide a letter in form and substance satisfactory to
the Managing Member or the Issuer, as applicable, as to whether any tax
withholding is then required and, if required, the procedures to be
followed with respect thereto to comply with the requirements of the Code.
The Accountants shall be required to update the letter in each instance
that any additional tax withholding is subsequently required or any
previously required tax withholding shall no longer be required.
(v) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions with or otherwise deal with any of its Affiliates; provided,
however, that the terms of any such transactions or dealings shall be in
accordance with any directions received from the Issuer and shall be, in
the Administrator's opinion, no less favorable to the Issuer than would be
available from unaffiliated parties.
(vi) The Administrator hereby agrees to execute on behalf of the
Issuer all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Issuer to prepare, file or deliver
pursuant to the Related Documents or otherwise by law.
(c) Non-Ministerial Matters. (i) With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the Administrator
shall not take any action unless within a reasonable time before the taking of
such action the Administrator shall have notified the Managing Member or the
Issuer, as applicable, of the proposed action and the Managing Member or the
Issuer, as applicable, shall have consented or provided an alternative
direction. For the purpose of the preceding sentence, "non-ministerial matters"
shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
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(B) the initiation of any claim or lawsuit by the Issuer and
the compromise of any action, claim or lawsuit brought by or against
the Issuer (other than in connection with the collection of the
Loans);
(C) the amendment, change or modification of the Related
Documents;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Administrators or
successor Servicers, or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee of its obligations
under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement,
the Administrator shall not be obligated to, and shall not: (x) make any
payments to the Noteholders under the Related Documents or (y) take any
other action that the Issuer directs the Administrator not to take on its
behalf.
2. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer or its
designees, at any time during normal business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to $3,000 per
annum, 1/12 of which is payable in arrears on each Payment Date, which payment
shall be solely an obligation of the Issuer.
4. Additional Information To Be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
5. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer with respect to the manner in which it
accomplishes the performance of its obligations hereunder. Unless expressly
authorized by the Issuer, the Administrator shall have no authority to act for
or represent the Issuer in any way (other than as permitted hereunder) and shall
not otherwise be deemed an agent of the Issuer.
6. No Joint Venture. Nothing contained in this Agreement: (i) shall
constitute the Administrator and the Issuer as members of any partnership, joint
venture, association, syndicate, unincorporated business or other separate
entity, (ii) shall be construed to impose any liability as such on any of them
or (iii) shall be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the others.
7. Other Activities of the Administrator. Nothing herein shall prevent
the Administrator or its Affiliates from engaging in other businesses or, in
their sole discretion, from
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acting in a similar capacity as an administrator for any other Person even
though such Person may engage in business activities similar to those of the
Issuer.
8. Term of Agreement; Resignation and Removal of the Administrator. (a)
This Agreement shall continue in force until the dissolution of the Issuer, upon
which event this Agreement shall automatically terminate.
(b) Subject to Section 8(g), the Administrator may resign its duties
hereunder by providing the Issuer and the Servicer with at least 60 days' prior
written notice.
(c) Subject to Section 8(e), the Issuer may remove the Administrator
without cause by providing the Administrator and the Servicer with at least 60
days' prior written notice.
(d) Subject to Section 8(e), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of termination from
the Issuer to the Administrator and the Servicer if any of the following events
shall occur:
(i) the Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such default, shall
not cure such default within ten days (or, if such default cannot be cured
in such time, shall not give within ten days such assurance of cure as
shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have been
vacated within 60 days, in respect of the Administrator in any involuntary
case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect or appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for the Administrator
or any substantial part of its property or order the winding-up or
liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment
of a receiver, liquidator, assignee, trustee, custodian, sequestrator or
similar official for the Administrator or any substantial part of its
property, shall consent to the taking of possession by any such official
of any substantial part of its property, shall make any general assignment
for the benefit of creditors or shall fail generally to pay its debts as
they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this subsection shall occur, it shall give written notice
thereof to the Issuer, the Servicer and the Indenture Trustee within seven days
after the happening of such event.
(e) Upon the Administrator's receipt of notice of termination, pursuant
to Sections 8(c) or (d), or the Administrator's resignation in accordance with
this Agreement, the predecessor Administrator shall continue to perform its
functions as Administrator under this Agreement, in the case of termination,
only until the date specified in such termination notice or, if no such date is
specified in a notice of termination, until receipt of such notice and, in the
case of resignation, until the later of: (x) the date 45 days from the delivery
to the Issuer, the Indenture
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Trustee and the Servicer of written notice of such resignation (or written
confirmation of such notice) in accordance with this Agreement and (y) the date
upon which the predecessor Administrator shall become unable to act as
Administrator, as specified in the notice of resignation and accompanying
Opinion of Counsel. In the event of the Administrator's termination hereunder,
the Issuer shall appoint a successor Administrator, and the successor
Administrator shall accept its appointment by a written assumption.
(e) Upon appointment, the successor Administrator shall be the successor
in all respects to the predecessor Administrator and shall be subject to all the
responsibilities, duties and liabilities arising thereafter relating thereto
placed on the predecessor Administrator and shall be entitled to the
compensation specified in Section 3 and all the rights granted to the
predecessor Administrator by the terms and provisions of this Agreement.
(f) No resignation or removal of the Administrator pursuant to this
Section shall be effective until: (i) a successor Administrator shall have been
appointed by the Issuer and (ii) such successor Administrator shall have agreed
in writing to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder.
(g) The appointment of any successor Administrator shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
(h) The Administrator or the Issuer, as the case may be, shall provide
to the Indenture Trustee a copy of all notices required to be delivered under
this Article 8.
9. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a), or the
resignation or removal of the Administrator pursuant to Section 8(b) or (c),
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 8(a) deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
8(b) or (c), respectively, the Administrator shall cooperate with the Issuer and
the Indenture Trustee and take all reasonable steps requested to assist the
Issuer and the Indenture Trustee in making an orderly transfer of the duties of
the Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuer, to:
GE Commercial Equipment Financing LLC, Series 2004-1
c/o General Electric Capital Corporation
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Capital Markets Operations
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(b) if to the Administrator, to:
General Electric Capital Corporation,
as Administrator
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(c) if to the Indenture Trustee, to:
JPMorgan Chase Bank, N.A.
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Institutional Trust Services Structured Finance
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above.
11. Amendments. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer and the
Administrator. Promptly after the execution of any such amendment (or, in the
case of a Rating Agency, 10 days prior thereto), the Administrator shall furnish
written notification of the substance of such amendment or consent to each
Noteholder and each Rating Agency.
12. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and subject to the satisfaction of the Rating Agency Condition in
respect thereof. An assignment with such consent and satisfaction, if accepted
by the assignee, shall bind the assignee hereunder in the same manner as the
Administrator is bound hereunder. Notwithstanding the foregoing, this Agreement
may be assigned by the Administrator without the consent of the Issuer to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator, provided that such successor
organization executes and delivers to the Issuer, an agreement in which such
corporation or other organization agrees to be bound hereunder by the terms of
said assignment in the same manner as the Administrator is bound hereunder.
Subject to the foregoing, this Agreement shall bind any successors or assigns of
the parties hereto.
13. Governing Law. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF
JURY TRIAL. (a) 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
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PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) 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; PROVIDED, FURTHER, THAT NOTHING IN THIS AGREEMENT
SHALL BE DEEMED OR OPERATE TO PRECLUDE THE LENDER FROM BRINGING SUIT OR TAKING
OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE BORROWER
COLLATERAL OR ANY OTHER SECURITY FOR THE BORROWER SECURED OBLIGATIONS, OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE LENDER. 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 10
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.
(c) 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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14. Other Interpretive Matters. All terms defined directly or by
incorporation in this Agreement shall have the defined meanings when used in any
document delivered pursuant thereto unless otherwise defined therein. For
purposes of this Agreement, unless the context otherwise requires: (a)
accounting terms not otherwise defined herein and accounting terms partly
defined herein to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles; 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) references to any amount as on deposit or outstanding on any
particular date means such amount at the close of business on such day; (c) the
words "hereof," "herein" and "hereunder" and words of similar import refer to
this Agreement as a whole and not to any particular provision of this Agreement;
(d) references to any Section, Schedule or Exhibit are references to Sections,
Schedules and Exhibits in or to this Agreement, 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; (e) the term "including" means "including without limitation"; (f)
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; (g) 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; (h) references to any Person include that Person's
successors and assigns; and (i) headings are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
15. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
16. Counterparts. This Agreement may be executed in counterparts, all of
which when so executed shall together constitute but one and the same agreement.
17. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
18. Not Applicable to the Administrator in Other Capacities. Nothing in
this Agreement shall affect any obligation that the Administrator may have in
any other capacity.
19. Limitation of Liability of the Managing Member. Notwithstanding
anything contained herein to the contrary, this instrument has been
countersigned by CEF Equipment Holding, L.L.C., not in its individual capacity
but solely in its capacity as the Managing Member of the Issuer, and in no event
shall CEF Equipment Holding, L.L.C., in its individual capacity, or any
beneficial owner of the Issuer have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder,
as to all of which recourse shall be had solely to the assets of the Issuer.
Administration Agreement
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20. Indemnification. The Administrator shall indemnify the Issuer (and
its officers, directors, employees and agents) for, and hold them harmless
against, any losses, liability or expense, including attorneys' fees reasonably
incurred by them, incurred without negligence or bad faith on their part,
arising out of or in connection with: (i) actions taken by either of them
pursuant to instructions given by the Administrator pursuant to this Agreement
or (ii) the failure of the Administrator to perform its obligations hereunder.
The indemnities contained in this Section shall survive the termination of this
Agreement and the resignation or removal of the Administrator or the Issuer.
Administration Agreement
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year 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,
as Administrator
By: __________________________________________
Name: ______________________________
Title: _____________________________
Accepted and agreed:
CEF EQUIPMENT HOLDING, L.L.C.,
not in its individual capacity but
solely as Managing Member under
the Issuer Limited Liability Company Agreement
By: __________________________________________
Name: ______________________________
Title: _____________________________
Administration Agreement
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