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EXECUTION VERSION
LOAN PURCHASE AND SALE AGREEMENT
Dated as of December 14, 2006
between
CEF EQUIPMENT HOLDING, L.L.C.,
as Seller
and
GE EQUIPMENT
MIDTICKET LLC, SERIES 2006-1,
as Purchaser
Loan Purchase
and Sale Agreement
This LOAN PURCHASE AND SALE AGREEMENT ("Agreement" or "Purchase
and Sale
Agreement") is entered into as of December 14, 2006, by and
between CEF
EQUIPMENT HOLDING, L.L.C. (the "Seller"), a Delaware limited
liability company
and GE EQUIPMENT MIDTICKET LLC, SERIES 2006-1, a Delaware
limited liability
company (the "Purchaser").
In consideration of the premises and the mutual covenants
hereinafter
contained, and for other good and valuable consideration, the
receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as
follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions. Capitalized terms used herein and not
otherwise
defined shall have the meanings ascribed to them in Section 1 of
Annex A to this
Agreement.
Section 1.2 Rules of Construction. For purposes of this
Agreement, the
rules of construction set forth in Section 2 of Annex A shall
govern. All
Annexes, Exhibits and Schedules hereto, are incorporated herein
by reference
and, taken together with this Agreement, shall constitute but a
single
agreement.
ARTICLE II
SALES OF PURCHASER ASSETS
Section 2.1 Sale of Loans. (a) Subject to the terms and
conditions hereof,
the Seller does hereby sell, transfer, assign, set over and
otherwise convey to
the Purchaser, without recourse (subject to the obligations
herein) all right,
title and interest of the Seller in:
(i) the Loans, including the Loan Files, and all obligations of
the
Obligors thereunder, including the right to payment of any
interest accrued and to accrue from and after December 1,
2006
or finance charges and other obligations of such Obligor
with
respect thereto due or to become due on or after the Cutoff
Date;
(ii) all Related Security and Collections with respect
thereto;
(iii) the Loan Sale Agreement;
(iv) all other property now or hereafter in the possession or
custody
of, or in transit to, the Servicer, any Sub-Servicer or the
Seller relating to any of the foregoing;
(v) all Records with respect to any of the foregoing; and
(vi) all proceeds of the foregoing (collectively the
"Purchaser
Assets").
Loan Purchase
and Sale Agreement
(b) On or before the Closing Date, the Seller shall (i) indicate
in
its computer files that the Purchaser Assets have been sold to
the
Purchaser pursuant to this Agreement by so identifying the
Purchaser Assets
with an appropriate notation and (ii) deliver to the Purchaser
or its
designee the following documents (collectively, the "Loan
Files"):
(i) the original fully executed copy of the Loan;
(ii) a record or facsimile of the original credit application
fully
executed by the Obligor;
(iii) the original certificate of title or file stamped copy of
the
UCC financing statement or such other documents evidencing
the
security interest of the Purchaser in the Equipment; and
(iv) any and all other documents relating to a Loan, an Obligor
or
any of the Equipment.
Section 2.2 Grant of Security Interest; Subordination. (a) The
parties
hereto intend that the transfer, sale and assignment pursuant to
Section 2.1
hereof shall constitute a purchase and sale and not a loan.
Notwithstanding
anything to the contrary set forth in this Section 2.2, if a
court of competent
jurisdiction determines that the sale provided for herein
constitutes the grant
of security for a loan (the "Deemed Loan") and not a purchase
and sale or
contribution, then:
(i) The parties hereto intend that this Agreement shall
constitute a
security agreement under applicable law and that the Seller
shall be deemed to have granted, and the Seller hereby
grants,
to the Purchaser a first priority lien and security interest
in
and to all of the Seller's right, title and interest in, to
and
under the Purchaser Assets, all other Related Documents to
which
the Seller is a party and all proceeds thereof
(collectively,
the "Deemed Collateral"). The possession by the Purchaser of
notes and such other goods, money, documents, chattel paper
or
certificated securities shall be deemed to be "possession by
the
secured party" for purposes of perfecting the security
interest
pursuant to the UCC in force in the relevant jurisdiction
(including, without limitation, Section 9-313(c)(1)
thereof).
Notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from Persons
holding
such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, bailees or
agents (as applicable) of the Purchaser for the purpose of
perfecting such security interest under applicable law
(except
that nothing in this sentence shall cause any Person to be
deemed to be an agent of the Purchaser for any purpose other
than for perfection of such security interest unless, and
then
only to the extent, expressly appointed and authorized by
the
Purchaser in writing).
(ii) The Purchaser acknowledges and agrees that the Deemed Loan
is a
non-recourse obligation of the Seller secured solely by the
Deemed Collateral and does not represent an interest in any
assets (other than the Deemed
Loan Purchase and Sale Agreement
Collateral) of the Seller (including by virtue of any
deficiency
claim in respect of obligations not paid or otherwise
satisfied
from the Deemed Collateral and proceeds thereof). In
furtherance
of and not in derogation of the foregoing, the Purchaser
acknowledges and agrees that:
(A) The Purchaser shall not have any right, title or
interest in or to any assets (or interests therein) (other
than
the Deemed Collateral) conveyed or purported to be conveyed
by
the Seller to any other Person or Persons (whether by way of
a
sale, capital contribution or by virtue of the granting of a
lien) ("Other Assets"); and
(B) the Deemed Loan constitutes a claim (as defined in 101
of the Bankruptcy Code) which may be satisfied solely from
the
Deemed Collateral and its proceeds (whether through ordinary
liquidation or the exercise of UCC remedies and other
remedies
provided herein) and does not constitute a claim against the
Seller to the extent that the Deemed Collateral and such
proceeds are insufficient to repay the Deemed Loan
(including
interest thereon, whether accrued before or after the filing
of
a bankruptcy petition) in full.
(iii) To the extent that, notwithstanding the agreements and
provisions contained in clause (ii) above, the Purchaser
either (A) asserts an interest or claim to, or benefit from,
Other Assets, or (B) is deemed to have any such interest,
claim or benefit in or from Other Assets, whether by
operation
of law, legal process, pursuant to applicable provisions of
insolvency laws or otherwise (including by virtue of Section
1111(b) of the Bankruptcy Code or any successor provision
having similar effect under the Bankruptcy Code), then the
Purchaser further acknowledges and agrees that any such
interest, claim or benefit in or from Other Assets is and
shall be expressly subordinated to the indefeasible payment
in
full of all obligations and liabilities of the Seller other
than the Deemed Loan, including, the payment of
post-petition
interest on such other obligations and liabilities. This
subordination agreement shall be deemed a subordination
agreement within the meaning of Section 510(a) of the
Bankruptcy Code. The Purchaser further acknowledges and
agrees
that no adequate remedy at law exists for a breach of this
Section 2.2 and the terms of this Section 2.2 may be
enforced
by an action for specific performance.
(b) The Purchaser shall not file or join in a filing of a
petition
with respect to any bankruptcy reorganization, arrangement,
insolvency or
liquidation proceedings, or similar proceedings under any United
States
Federal or State bankruptcy or similar law relating to the
Seller, or
cooperate or encourage others to file such a petition.
(c) The Seller hereby authorizes the Purchaser to file
financing
statements in respect of the Seller covering the Purchaser
Assets and the
proceeds thereof.
Loan Purchase and Sale Agreement
Section 2.3 Sale Price. On the Closing Date, the Purchaser
shall, upon
satisfaction of the applicable conditions set forth in Article
III, issue and
exchange the Notes (the "Purchaser Purchase Price") as
consideration for the
Purchaser Assets sold and transferred by the Seller to the
Purchaser pursuant to
Section 2.1 hereof.
Section 2.4 Removal of Loans. (a) In the event a Loan becomes a
Delinquent
Loan or the Obligor thereon is subject to a bankruptcy
proceeding, the Seller
shall be granted an assignable option (a "Purchase Option") to
purchase such
Delinquent Loan from the Purchaser at a price (the "Option
Price") equal to the
Purchase Amount. The Seller may sell, transfer, assign or
otherwise convey its
Purchase Option with respect to any such Loan to any party at
any time after the
related Loan becomes a Delinquent Loan or the Obligor thereon is
subject to a
bankruptcy proceeding. The Seller shall notify the Purchaser of
such transfer
and such notice shall include the transferee's name, address,
telephone number,
facsimile number and appropriate contact person(s) and shall be
acknowledged in
writing by the transferee. If not exercised earlier, the
Purchase Option with
respect to any such Loan shall automatically terminate upon (i)
in the case of a
Delinquent Loan, the related Obligor's cure of all defaults on
the Loan, (ii)
the acquisition by, or on behalf of, the Issuer of the related
Equipment through
repossession, (iii) upon a repurchase of a Loan due to the
Seller's breach of a
representation with respect to such Loan or (iv) on the Business
Day immediately
preceding the last day of the calendar quarter ending at least
ten (10) days
after such Loan became a Defaulted Loan. The aggregate
Outstanding Principal
Balance of Loans with respect to which the Seller may exercise
its Purchase
Option at any time before the Redemption Date shall not exceed
10% of the
aggregate Outstanding Principal Balance of the Loans as of the
Cutoff Date.
(b) Upon a Loan becoming a Delinquent Loan or the Obligor
thereon
becoming subject to a bankruptcy proceeding, the Seller may
exercise the
Purchase Option by providing the Purchaser at least five days
prior written
notice thereof (the "Purchase Option Notice"), which notice
shall specify a
cash exercise price at least equal to the Option Price. The
Purchase Option
Notice shall be delivered in the manner specified in Section
2.4(a). The
exercise of any Purchase Option pursuant to this clause (b)
shall be
irrevocable.
(c) Upon exercise of a Purchase Option, the Seller shall be
required
to pay the Option Price specified in its Purchase Option Notice
to the
Purchaser within 10 Business Days of exercising its Purchase
Option. The
proceeds of any sale of such Loan, after deduction of the
expenses of such
sale incurred in connection therewith, shall be deposited by the
Seller no
later than the day before the next Payment Date.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions to Sale. The sale hereunder shall be
subject to
satisfaction of each of the following conditions precedent (any
one or more of
which, except clause (e) below, may be waived in writing by the
Purchaser) as of
the Closing Date:
Loan Purchase and Sale Agreement
(a) This Agreement or counterparts hereof shall have been
duly
executed by, and delivered to, the Seller and the Purchaser, and
the
Purchaser shall have received such documents, instruments,
agreements and
legal opinions as the Purchaser shall reasonably request in
connection with
the transactions contemplated by this Agreement, each in form
and substance
reasonably satisfactory to the Purchaser.
(b) The Purchaser shall have received satisfactory evidence that
the
Seller has obtained all required consents and approvals of all
Persons,
including all requisite Governmental Authorities, to the
execution,
delivery and performance of this Agreement and the consummation
of the
transactions contemplated hereby.
(c) The Seller shall be in compliance in all material respects
with
all applicable foreign, federal, state and local laws and
regulations,
including those specifically referenced in Section 4.2(c),
except to the
extent that the failure to so comply, individually or in the
aggregate,
could not reasonably be expected to have a Material Adverse
Effect.
(d) The representations and warranties of the Seller contained
herein
or in any other Related Document shall be true and correct in
all material
respects (or, to the extent any such representation or warranty
is
qualified by a materiality standard, such representation or
warranty shall
be true and correct) as of the Closing Date, both before and
after giving
effect to such sale, except to the extent that any such
representation or
warranty expressly relates to an earlier date and except for
changes
therein expressly permitted by this Agreement.
(e) The Seller shall be in compliance with each of its covenants
and
other agreements set forth herein.
(f) The Seller shall have taken such other action, including
delivery
of approvals, consents, opinions, documents and instruments to
the
Purchaser as the Purchaser may reasonably request.
The consummation by the Seller of the sale of Purchaser Assets
on the Closing
Date shall be deemed to constitute, as of the Closing Date, a
representation and
warranty by the Seller that the conditions in clauses (d), (e)
and (f) of this
Section 3.1 have been satisfied.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.1 Representations and Warranties of the Seller. To
induce the
Purchaser to purchase the Purchaser Assets, the Seller makes the
following
representations and warranties to the Purchaser, as of the
Closing Date, each
and all of which shall survive the execution and delivery of
this Agreement.
(a) Valid Existence; Power and Authority. The Seller (i) is a
limited
liability company duly organized, validly existing and in good
standing
under the laws of its jurisdiction of organization; and (ii) has
all
requisite power, authority and licenses to
Loan Purchase and Sale Agreement
conduct its business, to own its properties and to execute,
deliver and
perform its obligations under this Agreement.
(b) UCC Information. The true legal name of the Seller as
registered
in the jurisdiction of its organization, and the current
location of the
Seller's jurisdiction of organization are set forth in Schedule
4.1(b) and
such location has not changed within the past 12 months. During
the prior
five years, except as set forth in Schedule 4.1(b), the Seller
has not been
known as or used any limited liability company, fictitious or
trade name.
In addition, Schedule 4.1(b) lists the Seller's (i) federal
employer
identification number and (ii) organizational identification
number as
designated by the jurisdiction of its organization.
(c) Power, Authorization, Enforceable Obligations. The
execution,
delivery and performance by the Seller of this Agreement and the
other
Related Documents and the creation and perfection of all Liens
and
ownership interests provided for herein: (i) have been duly
authorized by
all necessary action, and (ii) do not violate any provision of
any law or
regulation of any Governmental Authority, or contractual or
other
restrictions, binding on the Seller, except where such
violations,
individually or in the aggregate, could not reasonably be
expected to have
a Material Adverse Effect.
(d) Enforceability. On or prior to the Closing Date, each of
the
Related Documents to which the Seller is a party shall have been
duly
executed and delivered by the Seller and each such Related
Document shall
then constitute a legal, valid and binding obligation of the
Seller
enforceable against it in accordance with its terms, subject as
to
enforcement to bankruptcy, receivership, conservatorship,
insolvency,
reorganization, moratorium and other similar laws of general
applicability
relating to or affecting creditors' rights and to general
principles of
equity.
(e) Solvency. The Seller is Solvent.
(f) Use of Proceeds. No proceeds received by the Seller under
this
Agreement will be used by it for any purpose that violates
Regulation U of
the Federal Reserve Board.
(g) Investment Company Act. The Seller is not an "investment
company"
or "controlled by" an "investment company," as such terms are
defined in
the Investment Company Act.
(h) Loans and Other Purchaser Assets. With respect to each Loan
and
the other Purchaser Assets sold by the Seller on the Closing
Date, the
Seller represents and warrants that (i) such Loan satisfies the
criteria
for an Eligible Loan as of the Cut-Off Date; and (ii)
immediately prior to
its sale to the Purchaser, such Purchaser Assets were owned by
the Seller
free and clear of any Adverse Claim, and the Seller has had at
all relevant
times the full right, power and authority to sell, contribute,
assign,
transfer and pledge its interest therein as contemplated under
this
Agreement and, upon such sale, the Purchaser will acquire valid
and
properly perfected title to, and the sole record and beneficial
ownership
interest in, such Purchaser Assets, free and clear of any
Adverse
Loan Purchase and Sale Agreement
Claim or restrictions on transferability, and the Liens granted
to the
Purchaser by the Seller pursuant to Section 2.2 will at all
times be fully
perfected first priority Liens in and to such Loans and, in
addition,
following such sale, such Loan will not be subject to any
Adverse Claim as
a result of any action or inaction on the part of the Seller (or
any
predecessor in interest).
The representations and warranties described in this Section 4.1
shall survive
the sale of the Purchaser Assets to the Purchaser, any
subsequent assignment or
sale of the Purchaser Assets by the Purchaser, and the
termination of this
Agreement and the other Related Documents and shall continue
until the payment
in full of all Purchaser Assets.
Section 4.2 Affirmative Covenants of the Seller. The Seller
covenants and
agrees that, unless otherwise consented to by the Purchaser,
from and after the
Closing Date:
(a) Records. The Seller shall at its own cost and expense, for
not
less than three years from the date on which each Loan was
originated, or
for such longer period as may be required by law, maintain
adequate Records
with respect to such Loan, including records of all payments
received,
credits granted and merchandise returned with respect
thereto.
(b) Access. At any reasonable time, and from time to time at
the
Purchaser's reasonable request, and upon at least seven days
prior notice
to the Seller, the Seller shall permit the Purchaser (or such
Person as the
Purchaser may designate), at the expense of the Purchaser (or
such Person
as the Purchaser may designate), to conduct audits or visit and
inspect any
of the properties of the Seller to examine the records, internal
controls
and procedures maintained by the Seller with respect to the
Purchaser
Assets and take copies and extracts therefrom, and to discuss
the Seller's
affairs with its officers, employees and, upon notice to the
Seller,
independent accountants. The Seller shall authorize such
officers,
employees and independent accountants to discuss with the
Purchaser (or
such Person as the Purchaser may designate) the affairs of the
Seller as
such affairs relate to the Purchaser Assets. Any audit provided
for herein
shall be conducted in accordance with the Seller's rules
respecting safety
and security on its premises and without materially disrupting
operations.
If an Event of Default shall have occurred and be continuing,
the Seller
shall provide such access at all times and without advance
notice and shall
provide the Purchaser (or such Person as the Purchaser may
designate) with
access to its suppliers and customers.
(c) Compliance With Agreements and Applicable Laws. The Seller
shall
comply with all federal, state and local laws and regulations
applicable to
it and the Purchaser Assets, including those relating to truth
in lending,
fair credit billing, fair credit reporting, equal credit
opportunity, fair
debt collection practices, privacy, licensing and taxation,
except to the
extent that the failure to so comply, individually or in the
aggregate,
could not reasonably be expected to have a Material Adverse
Effect.
(d) Maintenance of Existence and Conduct of Business. The Seller
shall
preserve and maintain its legal existence, rights, franchise and
privileges
in the jurisdiction of its formation.
Loan Purchase and Sale Agreement
(e) Notice of Material Event. The Seller shall promptly inform
the
Purchaser in writing of the occurrence of any of the following,
in each
case setting forth the details thereof and what action, if any,
the Seller
proposes to take with respect thereto:
(i) any Litigation commenced or, to the knowledge of the
Seller,
threatened against the Seller or with respect to or in
connection
with all or any substantial portion of the Purchaser Assets
or
developments in such Litigation in each case that the Seller
believes has a reasonable risk of being determined adversely
to
the Seller and that could, if determined adversely, have a
Material Adverse Effect; or
(ii) the commencement of a case or proceeding by or against the
Seller
seeking a decree or order in respect of the Seller (A) under
the
Bankruptcy Code or any other applicable federal, state or
foreign
bankruptcy or other similar law, (B) appointing a custodian,
receiver, liquidator, assignee, trustee or sequestrator (or
similar official) for the Seller or for any substantial part
of
Seller's assets, or (C) ordering the winding-up or liquidation
of
the affairs of the Seller.
(f) Separate Identity. The Seller shall, to the extent
applicable to
it, act in a manner that is consistent with the statements set
forth in
Exhibit 4.2(f).
(g) Deposit of Collections. The Seller shall transfer and cause
its
Subsidiaries to transfer to the Purchaser or the Servicer on its
behalf,
promptly, and in any event no later than the second Business Day
after
receipt thereof, all Collections it may receive in respect of
Purchaser
Assets.
(h) Sale Characterization. For accounting purposes, the Seller
shall
treat the sale made hereunder as a sale of the Purchaser Assets.
The Seller
shall also maintain its accounting books and records in a manner
which
clearly reflects such sale of the Purchaser Assets to the
Purchaser.
Section 4.3 Negative Covenants of the Seller. The Seller
covenants and
agrees that, without the prior written consent of the Purchaser,
from and after
the Closing Date and until the later of the Redemption Date or
the Class C
Maturity Date:
(a) Adverse Claims. The Seller shall not create, incur, assume
or
permit to exist any Adverse Claim on or with respect to any
Purchaser
Assets.
(b) Modifications of Loans. The Seller shall not extend,
amend,
forgive, discharge, compromise, cancel, waive or otherwise
modify the terms
or conditions of any Loan except (i) as permitted under the
Servicing
Agreement and, (ii) to the extent that such extension,
amendment,
forgiveness, discharge, compromise, cancellation, waiver or
modification,
does not affect the Purchaser's ownership interest in such Loan
and does
not negatively impact the ultimate collectibility of such
Loan.
(c) UCC Matters. The Seller shall not change its state of
formation or
its name, identity or limited liability company structure such
that any
financing statement
Loan Purchase and Sale Agreement
filed to perfect the Purchaser's interests under this Agreement
would
become seriously misleading, unless the Seller shall have given
the
Purchaser not less than 30 days' prior written notice of such
change.
(d) No Proceedings. From the Closing Date and until the date one
year
plus one day following the date on which all amounts due with
respect to
the Notes have been paid in full in cash, Seller shall not,
directly or
indirectly, institute or cause to be instituted against the
Purchaser any
bankruptcy, reorganization, arrangement, insolvency or
liquidation
proceeding or other proceeding under any federal or state
bankruptcy or
similar law; provided that the foregoing shall not in any way
limit the
Seller's right to pursue any other creditor rights or remedies
that the
Seller may have under applicable law.
(e) Consolidations, Mergers and Sales of Assets. The Seller
shall not
(i) consolidate or merge with or into any other Person unless
the Seller is
the entity surviving such merger or (ii) sell, lease or
otherwise transfer
all or substantially all of its assets to any other Person.
Section 4.4 Perfection Representations and Warranties. The
parties hereto
agree that the representations, warranties and covenants set
forth in Schedule
4.4 shall be a part of this Agreement for all purposes.
ARTICLE V
INDEMNIFICATION
Section 5.1 Indemnification. Without limiting any other rights
that the
Purchaser or any of its Stockholders, officers, directors,
employees, attorneys,
agents or representatives (each, a "Purchaser Indemnified
Person") may have
hereunder or under applicable law, the Seller hereby agrees to
indemnify and
hold harmless each Purchaser Indemnified Person from and against
any and all
Indemnified Amounts that may be claimed or asserted against or
incurred by any
such Purchaser Indemnified Person to the extent arising from or
related to the
failure of a Loan to be originated in compliance with all
requirements of law;
provided, that the Seller shall not be liable for any
indemnification to a
Purchaser Indemnified Person to the extent that any such
Indemnified Amounts
result from (a) such Purchaser Indemnified Person's bad faith,
gross negligence
or willful misconduct, (b) recourse for uncollectible Loans, or
(c) any income
tax or franchise tax incurred by any Purchaser Indemnified
Person, except to the
extent that the incurrence of any such tax results from a breach
of or default
by the Seller under this Agreement.
NO 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.
Loan Purchase and Sale Agreement
ARTICLE VI
CLEAN-UP CALL
Section 6.1 Clean-up Call. As of the first day of any Collection
Period
immediately preceding a Payment Date as of which the Pool
Balance is 10% or less
of the Pool Balance as of the Cut-off Date, the Seller shall
have the option to
purchase all of the Collateral, other than the Trust Accounts.
To exercise such
option, the Seller shall pay to the Servicer, on behalf of the
Issuer, and the
Servicer shall deposit in the Collection Account an amount equal
to the
aggregate Purchase Amount for the Loans plus the appraised value
of any such
other property held by the Purchaser, such value to be
determined by an
appraiser mutually agreed upon by the Seller and the Purchaser,
shall succeed to
all interests in, to and under the Collateral, other than the
Trust Accounts.
ARTICLE VII
MISCELLANEOUS
Section 7.1 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 telecopy or other similar facsimile
transmission
(with such telecopy or facsimile promptly confirmed by delivery
of a copy by
personal delivery or United States mail as otherwise provided in
this Section
7.1), (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 set forth 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 (other than Purchaser) designated in any written
communication provided
hereunder to receive copies shall in no way adversely affect the
effectiveness
of such notice, demand, request, consent, approval, declaration
or other
communication. Notwithstanding the foregoing, whenever it is
provided herein
that a notice is to be given to any other party hereto by a
specific time, such
notice shall be effective only 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 be effective only on the
immediately succeeding
Business Day.
Loan Purchase and Sale Agreement
If to Seller:
CEF Equipment Holding, L.L.C.
44 Old Ridgebury Road
Danbury, Connecticut 06810
Attention: General Counsel
Telephone: (203) 796-5518
Facsimile: (203) 796-1310
If to Purchaser:
GE Equipment Midticket LLC, Series 2006-1
44 Old Ridgebury Road
Danbury, Connecticut 06810
Attention: Capital Markets Operations
Telephone: (203) 796-5518
Facsimile: (203) 796-5554
Section 7.2 No Waiver; Remedies. (a) Either party's failure, at
any time or
times, to require strict performance by the other party hereto
of any provision
of this Agreement shall not waive, affect or diminish any right
of such party
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 of the same or a different type. None of the
undertakings, agreements,
warranties, covenants and representations of either party
contained in this
Agreement, and no breach or default by either party hereunder,
shall be deemed
to have been suspended or waived by the other party hereto
unless such waiver or
suspension is by an instrument in writing signed by an officer
of or other duly
authorized signatory of such party and directed to the
defaulting party
specifying such suspension or waiver.
(b) Upon discovery by the Seller or the Purchaser of any breach
of any
representation, warranty, undertaking or covenant described in
Sections
4.1, 4.2 or 4.3, 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,
the
Purchaser shall, on the Transfer Date relating to the Collection
Period
during which the breach is discovered, request the Seller to,
and the
Seller shall pay to, or at the direction of, the Purchaser the
Purchase
Amount for the applicable Purchaser Assets (measured at the end
of the
Collection Period during which such breach is discovered). Upon
such
payment, all rights, title and interest of the Purchaser in and
to such
Purchaser Assets will be deemed to be automatically released
without the
necessity of any further action by the Purchaser, the Seller or
any other
party and such Purchaser Assets will become the property of the
Seller.
(c) Each party's rights and remedies under this Agreement shall
be
cumulative and nonexclusive of any other rights and remedies
that such
party may have under any other agreement, including the other
Related
Documents, by operation of law or otherwise.
Loan Purchase and Sale Agreement
Section 7.3 Successors and Assigns. This Agreement shall be
binding upon
and shall inure to the benefit of the Seller and the Purchaser
and their
respective successors and permitted assigns, except as otherwise
provided
herein. The Seller may not assign, transfer, hypothecate or
otherwise convey its
rights, benefits, obligations or duties hereunder without the
prior express
written consent of the Purchaser. Any such purported assignment,
transfer,
hypothecation or other conveyance by the Seller without the
prior express
written consent of the Purchaser shall be void. The Seller
acknowledges that
under the Indenture the Purchaser will assign its rights granted
hereunder to
the Indenture Trustee, and upon such assignment, Indenture
Trustee shall have,
to the extent of such assignment, all rights of the Purchaser
hereunder and
Indenture Trustee may in turn transfer such rights. The terms
and provisions of
this Agreement are for the purpose of defining the relative
rights and
obligations of the Seller and the Purchaser with respect to the
transactions
contemplated hereby and no Person shall be a third-party
beneficiary of any of
the terms and provisions of this Agreement.
Section 7.4 Termination; Survival of Obligations. (a) 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 (i) the Class C Maturity Date or (ii) the Redemption
Date.
(b) Except as otherwise expressly provided herein or in any
other
Related Document, no termination or cancellation (regardless of
cause or
procedure) of any commitment made by the Purchaser under this
Agreement
shall in any way affect or impair the obligations, duties and
liabilities
of the Seller or the rights of the Purchaser relating to any
unpaid portion
of any and all recourse and indemnity obligations of the Seller
to the
Purchaser, due or not due, liquidated, contingent or
unliquidated or any
transaction or event occurring prior to such termination, or
any
transaction or event, the performance of which is required after
the Class
C Maturity Date. Except as otherwise expressly provided herein
or in any
other Related Document, all undertakings, agreements, covenants,
warranties
and representations of or binding upon the Seller, and all
rights of the
Purchaser hereunder shall not terminate or expire, but rather
shall survive
any such termination or cancellation and shall continue in full
force and
effect until the earlier of (i) the Class C Maturity Date or
(ii) the
Redemption Date; provided, that the rights and remedies pursuant
to Section
7.2(b), the indemnification and payment provisions of Article V,
and the
provisions of Sections 4.3(d), 7.3 and 7.12 shall be continuing
and shall
survive any termination of this Agreement.
Section 7.5 Complete Agreement; Modification of Agreement. This
Agreement
constitutes the complete agreement between the parties with
respect to the
subject matter hereof, supersedes all prior agreements and
understandings
relating to the subject matter hereof and thereof, and may not
be modified,
altered or amended except as set forth in Section 7.6.
Section 7.6 Amendments and Waivers. No amendment, modification,
termination
or waiver of any provision of this Agreement, or any consent to
any departure
therefrom by any party hereto, shall in any event be effective
unless the same
shall be in writing and signed by each of the parties hereto. No
consent or
demand in any case shall, in itself, entitle any party to any
other consent or
further notice or demand in similar or other circumstances.
Loan Purchase and Sale Agreement
Section 7.7 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 (WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS
THEREOF EXCEPT
SECTION 5-1401 OF THE GENERAL OBLIGATION LAW) 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 PURCHASER FROM BRINGING SUIT OR TAKING OTHER
LEGAL ACTION
IN ANY OTHER JURISDICTION TO REALIZE ON THE LOANS OR ANY
SECURITY FOR THE
OBLIGATIONS OF THE SELLER ARISING HEREUNDER OR TO ENFORCE A
JUDGMENT OR
OTHER COURT ORDER IN FAVOR OF THE PURCHASER. 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 7.1 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.
Loan Purchase and Sale Agreement
(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.
Section 7.8 Counterparts. This Agreement may be executed in any
number of
separate counterparts, each of which shall collectively and
separately
constitute one agreement.
Section 7.9 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 7.10 Section Titles. The section titles and table of
contents
contained in this Agreement are provided for ease of reference
only 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 7.11 No Setoff. The Seller's obligations under this
Agreement shall
not be affected by any right of setoff, counterclaim,
recoupment, defense or
other right the Seller might have against the Purchaser, all of
which rights are
hereby expressly waived by the Seller.
Section 7.12 Confidentiality. Notwithstanding anything herein to
the
contrary, there is no restriction (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
hereby or to
any element of the transaction structure contemplated
hereby.
Section 7.13 Further Assurances. (a) The Seller shall, at its
sole cost and
expense, upon request of the Purchaser, promptly and duly
authorize, execute
and/or deliver, as applicable, any and all further instruments
and documents and
take such further actions that may be necessary or desirable or
that the
Purchaser may request to carry out more effectively the
provisions and purposes
of this Agreement or to obtain the full benefits of this
Agreement and of the
rights and powers herein granted, including authorizing and
filing any financing
or continuation statements under the UCC with respect to the
ownership interests
or Liens granted hereunder. The Seller hereby authorizes the
Purchaser to file
any such financing or continuation
Loan Purchase and Sale Agreement
statements without the signature of the Seller to the extent
permitted by
applicable law. A carbon, photographic or other reproduction of
this Agreement
or of any notice or financing statement covering the Purchaser
Assets or any
part thereof shall be sufficient as a notice or financing
statement where
permitted by law. If any amount payable under or in connection
with any of the
Purchaser Assets is or shall become evidenced by any instrument,
such
instrument, other than checks and notes received in the ordinary
course of
business, shall be duly endorsed in a manner satisfactory to the
Purchaser
immediately upon the Seller's receipt thereof and promptly
delivered to or at
the direction of the Purchaser.
(b) If the Seller fails to perform any agreement or obligation
under this
Section 7.13, the Purchaser may (but shall not be required to)
itself perform,
or cause performance of, such agreement or obligation, and the
reasonable
expenses of the Purchaser incurred in connection therewith shall
be payable by
the Seller upon demand of the Purchaser.
Section 7.14 Accounting Changes. If any Accounting Changes occur
and such
changes result in a change in the standards or terms used
herein, then the
parties hereto agree to enter into negotiations in order to
amend such
provisions so as to equitably reflect such Accounting Changes
with the desired
result that the criteria for evaluating the financial condition
of such Persons
and their Subsidiaries shall be the same after such Accounting
Changes as if
such Accounting Changes had not been made. If the parties hereto
agree upon the
required amendments to this Agreement, then after appropriate
amendments have
been executed and the underlying Accounting Change with respect
thereto has been
implemented, any reference to GAAP contained herein shall, only
to the extent of
such Accounting Change, refer to GAAP consistently applied after
giving effect
to the implementation of such Accounting Change. If such parties
cannot agree
upon the required amendments within 30 days following the date
of implementation
of any Accounting Change, then all financial statements
delivered and all
standards and terms used herein shall be prepared, delivered and
used without
regard to the underlying Accounting Change.
[Signatures Follow]
Loan Purchase and Sale Agreement
IN WITNESS WHEREOF, the parties have caused this LOAN PURCHASE
AND SALE
AGREEMENT to be executed by their respective duly authorized
representatives, as
of the date first above written.
CEF EQUIPMENT HOLDING, L.L.C.
By:
-----------------------------------
Name:
Title:
GE EQUIPMENT MIDTICKET LLC, SERIES 2006-1
By: CEF Equipment Holding, L.L.C.,
its Managing Member
By:
---------------------------------
Name:
Title:
Loan Purchase and Sale Agreement
Schedule 4.1(b)
UCC INFORMATION
CEF Equipment Holding, L.L.C.
True Legal Name: CEF Equipment Holding, L.L.C.
Jurisdiction of Organization: Delaware
Executive Offices/Principal Place of Business: 44 Old Ridgebury
Road
Danbury, Connecticut 06810
Collateral Locations: Danbury, Connecticut
El Paso, Texas
Mexico
Trade Names: N/A
FEIN: 20-0192070
Organizational Identification Number: N/A
Loan Purchase and Sale Agreement
EXHIBIT 4.4
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants
contained in
the Purchase and Sale Agreement, to induce the Purchaser to
enter into the
Purchase and Sale Agreement, the Seller hereby represents,
warrants, and
covenants to Purchaser as follows, on the Closing Date:
General
1. The Purchase and Sale Agreement creates a valid and
continuing security
interest (as defined in the applicable UCC) in the Collateral in
favor of the
Purchaser, which security interest is prior to all other Liens,
and is
enforceable as such as against creditors of and purchasers from
the Seller.
2. The Loans constitute "accounts," "general intangibles,"
"instruments,"
or "tangible chattel paper," within the meaning of the UCC as in
effect in the
State of New York.
3. The Seller has taken all steps necessary to perfect its
security
interest against the Purchaser in the property securing the
Loans that
constitute chattel paper.
Creation
4. The Seller owns and has good and marketable title to the
Loans free and
clear of any Lien, claim or encumbrance of any Person, excepting
only liens for
taxes, assessments or similar governmental charges or levies
incu
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