EXECUTION VERSION
LOAN SALE AGREEMENT
December 14, 2006,
between
GENERAL ELECTRIC CAPITAL CORPORATION,
as Seller,
and
CEF EQUIPMENT HOLDING, L.L.C.,
as Purchaser
Loan Sale Agreement
This LOAN SALE AGREEMENT ("Agreement" or "Sale Agreement") is
entered into
as of December 14, 2006 by and between GENERAL ELECTRIC CAPITAL
CORPORATION, a
Delaware corporation ("GE Capital" or the "Seller") and CEF
EQUIPMENT HOLDING,
L.L.C., 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 CEF 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) all other property now or hereafter in the possession or
custody
of, or in transit to, the Issuer, the Servicer, any Sub-Servicer
or the Seller relating to any of the foregoing;
(iv)
all Records with respect to any of the foregoing; and
(v)
all proceeds of the foregoing (collectively the "CEF Assets").
(b) On or before the Closing Date, the Seller shall (i) indicate in
its computer files that the CEF Assets have been sold to the
Purchaser
pursuant to this Agreement by
Loan Sale Agreement
so identifying such CEF 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. The parties hereto intend
that the
sale 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 a loan and not a purchase and sale, then 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 CEF Assets sold and transferred by the Seller on the
Closing Date. 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 or
delivery to 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).
Section 2.3 Sale Price. (a) As consideration for the sale of the
CEF Assets
pursuant to Section 2.1 hereof, the Purchaser shall pay to the
Seller on the
Closing Date, the CEF Cash Purchase Price for the CEF Assets sold
and
transferred by the Seller to the Purchaser on the Closing Date. The
CEF Cash
Purchase Price for the sale of CEF Assets shall be an amount equal
to the fair
market value thereof as agreed upon by the Purchaser and the Seller
prior to
such sale.
(b) The CEF Cash Purchase Price for the CEF Assets sold by the
Seller
under this Agreement shall be payable in full in cash by the
Purchaser on
the Closing Date. On the Closing Date, the Purchaser shall, upon
satisfaction of the applicable conditions set forth in Article III,
make
available to the Seller the CEF Cash Purchase Price in same day
funds.
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Loan Sale Agreement
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:
(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) At the time of such sale, the Purchaser shall have sufficient
funds on hand to pay the CEF Cash Purchase Price.
(f) The Seller shall be in compliance with each of its covenants
and
other agreements set forth herein.
(g) 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 CEF 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), (f) and
(g) of this
Section 3.1 have been satisfied.
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Loan Sale Agreement
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.1 Representations and Warranties of the Seller. To induce
the
Purchaser to purchase the CEF 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) Corporate Existence; Power and Authority. The Seller (i) is a
corporation duly organized, validly existing and in good standing
under the
laws of its jurisdiction of organization; and (ii) has all
requisite power
and authority and licenses to 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 with
respect to the
Seller. During the prior five years, except as set forth in
Schedule
4.1(b), the Seller has not been known as or used any corporate,
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) Authorization, Compliance with Law. 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
corporate action, and (ii) do not violate any provision of any law
or
regulation of any Governmental Authority, or contractual or
corporate
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.
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Loan Sale Agreement
(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 CEF Assets. With respect to each Loan and the
other CEF 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; (ii) immediately prior to
sale to the
Purchaser, such CEF 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 CEF Assets,
free and
clear of any Adverse 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); and (iii) if such Loan is
cross-collateralized with a loan that is not a CEF Asset conveyed
hereunder, as of the Closing Date, either (x) the repossession or
exercise
of other rights with respect to the related Equipment by the holder
of such
loan would not materially impair the security intended to be
afforded for
such Loan and result in a material adverse effect on the holders of
the
Notes or (y) the holder of such loan and the Purchaser or its
assigns as
holder of the Loan have entered into an intercreditor arrangement
under
which each holder has agreed to subordinate its respective lien and
rights
of enforcement against the Equipment financed by the other holder
or its
predecessor in interest.
The representations and warranties described in this Section 4.1
shall survive
the sale of the CEF Assets to the Purchaser, any subsequent
assignment or sale
of the CEF 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
CEF 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 CEF
Assets and
take copies and extracts therefrom, and to discuss the Seller's
affairs
with its officers, employees and,
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Loan Sale Agreement
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 CEF 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 CEF 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 corporate existence, rights, franchise
and
privileges in the jurisdiction of its incorporation.
(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 CEF 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
the 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 CEF
Assets.
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Loan Sale Agreement
(h) Sale Characterization. For accounting purposes, the Seller
shall
treat the sale made hereunder as a sale of the CEF Assets. The
Seller shall
also maintain its accounting books and records in a manner which
clearly
reflects such sale of the CEF 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 CEF
Assets.
(b) UCC Matters. The Seller shall not change its state of
organization
or incorporation or its name, identity or corporate structure such
that any
financing statement 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.
(c) 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, the 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.
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 sold and transferred by the Seller
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.
NEITHER PARTY TO THIS AGREEMENT SHALL BE RESPONSIBLE OR LIABLE TO
THE OTHER
PARTY TO THIS AGREEMENT, ANY SUCCESSOR, ASSIGNEE OR
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Loan Sale Agreement
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 VI
MISCELLANEOUS
Section 6.1 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
6.1), (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.
If to the Seller:
General Electric Capital Corporation
10 Riverview Drive
Danbury, Connecticut
06810
Attention: General Counsel
Telephone: (203) 749-6000
Facsimile: (203) 749-4598
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Loan Sale Agreement
If to Purchaser:
CEF Equipment Holding, L.L.C.
44 Old Ridgebury Road
Danbury, CT
06810
Attention: Capital Markets Operations
Telephone: (203) 796-5518
Facsimile: (203) 796-5554
Section 6.2 No Waiver; Remedies. (a) Any party's failure, at any
time
or times, to require strict performance by any 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 any party
contained in
this Agreement, and no breach or default by any party hereunder,
shall be deemed
to have been suspended or waived by any 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 CEF 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 CEF
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 CEF
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.
Section 6.3 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 Purchase and Sale Agreement the Purchaser will assign its
rights
granted hereunder to the Issuer, and upon such assignment, the
Issuer shall
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Loan Sale Agreement
have, to the extent of such assignment, all rights of the Purchaser
hereunder
and the Issuer 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 6.4 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
6.2(b), the indemnification and payment provisions of Article V,
and the
provisions of Sections 4.3(c), 6.3 and 6.12 shall be continuing and
shall
survive any termination of this Agreement.
Section 6.5 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 6.6.
Section 6.6 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 and their
respective permitted successors and assigns. 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.
Section 6.7 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
10
Loan Sale Agreement
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 CEF ASSETS 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 6.1 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.
(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
11
Loan Sale Agreement
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 6.8 Counterparts. This Agreement may be executed in any
number
of separate counterparts, each of which shall collectively and
separately
constitute one agreement.
Section 6.9 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 6.10 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 6.11 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 6.12 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 6.13 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 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 CEF 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 CEF 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.
12
Loan Sale Agreement
(b) If the Seller fails to perform any agreement or obligation
under
this Section 6.13, 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 6.14 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]
13
Loan Sale Agreement
IN WITNESS WHEREOF, the parties have caused this LOAN 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:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
------------------------------------
Name:
Title:
Loan Sale Agreement
Schedule 4.1(b)
UCC INFORMATION
General Electric Capital Corporation
True Legal Name:
General Electric Capital Corporation
Jurisdiction of Organization:
Delaware
Executive Offices/Principal Place of
44 Old Ridgebury Road
Business:
Danbury, Connecticut 06810
Collateral Locations:
Danbury, Connecticut
El Paso, Texas
Mexico
Trade Names:
GE Capital
FEIN:
13-1500700
Organizational Identification Number:
3174543
Loan Sale Agreement
Schedule I
Schedule of GECC Loans
[attached hereto]
LOAN ID NUMBER
--------------
4067599061
4067599062
4067599063
4067599064
4067599065
4067862004
4067862005
4073453026
4073453027
4073453028
4073453029
4079001005
4079001006
4079712009
4083476027
4083476031
4083476032
4083476033
4083476034
4083476035
4083476036
4083476037
4083476038
4083558006
4083558007
4085669017
4087903015
4087903016
4089934018
4089934019
4090853008
4090917005
4095371180
4095371181
4095626005
4098922008
4098922009
4104544013
4111112003
4113263006
4113480003
4113981014
4113981015
4116286004
4118472018
4118472019
4118472020
4118472021
4118472022
4118472023
4118472024
4118472025
4118472026
4118472027
4118472028
4118472029
4119049015
4119049016
4119049018
4119713007
4119713008
4119768013
4119768014
4119768015
4119768016
4119768017
4119768018
4119768019
4119768020
4119768021
4122979002
4124421008
4124454009
4124777028
4124777029
4124777030
4124777031
4124777032
4124777033
4124777034
4124777035
4124777036
4124777037
4124777038
4124777039
4124777040
4124777041
4124777042
4124777043
4124777044
4124777045
4124777046
4124777047
4124777048
4124777049
4124777050
4124777051
4124777052
4124777053
4126885003
4126885004
4126885005
4128777008
4128777011
4128784007
4129030002
4129030003
4129103002
4129197010
4129197011
4129197012
4131480005
4131492005
4131492006
4131492007
4131492008
4131858007
4132318016
4132666010
4132666011
4132666012
4133082004
4133082005
4133094007
4133094008
4133094009
4133440003
4133592005
4133592006
4133592007
4133651003
4134387006
4134387007
4135039012
4135039013
4135039014
4135321005
4
