Execution Copy $150,000,000 Variable Funding Notes INDENTURE Dated as of February 24, 2005 GEHL FUNDING LLC, Issuer UBS REAL ESTATE SECURITIES INC., Noteholder and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Trustee TABLE OF CONTENTS PAGE NO.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE 2
SECTION 1.1 Definitions 2 SECTION 1.2 Other Definitional Provisions 3
ARTICLE II
THE NOTES 3
SECTION 2.1 Form 3 SECTION 2.2 Execution, Authentication and Delivery 4 SECTION 2.3 [Reserved] 4 SECTION 2.4 Registration; Registration of Transfer and Exchange 4 SECTION 2.5 Restrictions on Transfer and Exchange 6 SECTION 2.6 Mutilated, Destroyed, Lost or Stolen Note 9 SECTION 2.7 Persons Deemed Owner 10 SECTION 2.8 Payment of Principal and Interest; Defaulted Interest 10 SECTION 2.9 Cancellation 10 SECTION 2.10 Release of Collateral 11 SECTION 2.11 Amount Limited; Advances 11
ARTICLE III
COVENANTS 12
SECTION 3.1 Payment of Principal and Interest 12 SECTION 3.2 Maintenance of Office or Agency 12 SECTION 3.3 Money for Payments to be Held in Trust 12 SECTION 3.4 Existence 14 SECTION 3.5 Protection of Trust Estate 14 SECTION 3.6 Opinions as to Trust Estate 14 SECTION 3.7 Performance of Obligations; Servicing of Receivables 15 SECTION 3.8 Negative Covenants 16 SECTION 3.9 Annual Statement as to Compliance 16 SECTION 3.10 Issuer May Consolidate, Etc, Only on Certain Terms 17 SECTION 3.11 Successor or Transferee 18 SECTION 3.12 No Other Business 19 SECTION 3.13 No Borrowing 19 SECTION 3.14 Guarantees, Loans, Advances and Other Liabilities 19 SECTION 3.15 Capital Expenditures 19
i SECTION 3.16 Compliance with Laws 19 SECTION 3.17 Restricted Payments 19 SECTION 3.18 Notice of Events of Default and Funding Termination Events 20 SECTION 3.19 Further Instruments and Acts 20 SECTION 3.20 Amendments of Basic Documents 20 SECTION 3.21 Income Tax Characterization 20 SECTION 3.22 Separate Existence of the Issuer 20 SECTION 3.23 Amendment of Issuer's Organizational Documents 20 SECTION 3.24 Other Agreements 21 SECTION 3.25 Rule 144A Information 21 SECTION 3.26 Change of Control 21
ARTICLE IV
SATISFACTION AND DISCHARGE 21
SECTION 4.1 Satisfaction and Discharge of Indenture 21 SECTION 4.2 Application of Trust Money 22 SECTION 4.3 Repayment of Moneys Held by Note Paying Agent 22
ARTICLE V
REMEDIES 22
SECTION 5.1 Events of Default 22 SECTION 5.2 Rights Upon Event of Default 25 SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee 25 SECTION 5.4 Remedies 27 SECTION 5.5 Optional Preservation of the Receivables 28 SECTION 5.6 Priorities 28 SECTION 5.7 Limitation of Suits 28 SECTION 5.8 Unconditional Rights of the Noteholders To Receive Principal and Interest 29 SECTION 5.9 Restoration of Rights and Remedies 29 SECTION 5.10 Rights and Remedies Cumulative 29 SECTION 5.11 Delay or Omission Not a Waiver 30 SECTION 5.12 Control by Noteholders 30 SECTION 5.13 Waiver of Past Defaults 30 SECTION 5.14 Undertaking for Costs 30 SECTION 5.15 Waiver of Stay or Extension Laws 31 SECTION 5.16 Sale of Trust Estate 31 SECTION 5.17 Performance and Enforcement of Certain Obligations 32
ARTICLE VI
THE TRUSTEE 32
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SECTION 6.1 Duties of Trustee 32 SECTION 6.2 Rights of Trustee 34 SECTION 6.3 Individual Rights of Trustee 35 SECTION 6.4 Trustee's Disclaimer 35 SECTION 6.5 Notice of Defaults 35 SECTION 6.6 Reports by Trustee to the Noteholders, etc 35 SECTION 6.7 Compensation and Indemnity 35 SECTION 6.8 Replacement of Trustee 36 SECTION 6.9 Successor Trustee by Merger 37 SECTION 6.10 Appointment of Co-Trustee or Separate Trustee 37 SECTION 6.11 Eligibility; Disqualification 39 SECTION 6.12 Appointment 39 SECTION 6.13 Performance of Duties 39 SECTION 6.14 Representations and Warranties of the Trustee 39 SECTION 6.15 Waiver of Setoffs 40
ARTICLE VII
[RESERVED] 40
ARTICLE VIII
COLLECTION OF MONEY AND RELEASES OF TRUST ESTATE 40
SECTION 8.1 Collection of Money 40 SECTION 8.2 Release of Trust Estate 40 SECTION 8.3 Opinion of Counsel 41
ARTICLE IX
SUPPLEMENTAL
Indentures41
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders 41 SECTION 9.2 Execution of Supplemental Indentures 42 SECTION 9.3 Effect of Supplemental Indenture 42
ARTICLE X
REPAYMENT AND PREPAYMENT OF NOTES 43
SECTION 10.1 Repayment of the Note; Optional Prepayment of the Note; Reductions of Maximum Invested Amount 43 SECTION 10.2 Notice of Prepayment 43 SECTION 10.3 General Procedures 43
ARTICLE XI
MISCELLANEOUS 44
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SECTION 11.1 Compliance Certificates and Opinions, etc 44 SECTION 11.2 Form of Documents Delivered to Trustee 45 SECTION 11.3 Acts of the Noteholders 45 SECTION 11.4 Notices, etc., to Trustee, Issuer, Noteholders and Rating Agencies 46 SECTION 11.5 Waiver 46 SECTION 11.6 Alternate Payment and Notice Provisions 46 SECTION 11.7 Effect of Headings and Table of Contents 47 SECTION 11.8 Successors and Assigns; Third Party Beneficiary 47 SECTION 11.9 Severability 47 SECTION 11.10 Legal Holidays 47 SECTION 11.11 Governing Law 47 SECTION 11.12 Counterparts 47 SECTION 11.13 Recording of Indenture 47 SECTION 11.14 Issuer Obligation 47 SECTION 11.15 No Petition 48 SECTION 11.16 Inspection 48 SECTION 11.17 Entire Agreement 48 SECTION 11.18 Subordination Agreement 48 SECTION 11.19 Trustee Direction 49 SECTION 11.20 Hedge Agreements 49 Exhibits Exhibit A-1 Form of Variable Funding Note Exhibit A-2 Form of Transferor Certification Exhibit A-3 Form of Transferee Certification
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INDENTURE dated as of February 24, 2005, by and among GEHL FUNDING LLC, a
Delaware limited liability company, as issuer (the " Issuer" ), UBS REAL ESTATE SECURITIES INC., a Delaware corporation, as the initial Noteholder, and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, a national banking association, as trustee (the " Trustee" ).
Each party agrees as follows for the benefit of the other parties and for the benefit of each Holder of the Issuer' s Variable Funding Notes (the " Notes" ):
To secure the payment of principal of and interest on, and any other amounts owing in respect of the Note, and to secure compliance with this Indenture, the Issuer has agreed to pledge the Collateral (as defined below) as collateral to the Trustee for the benefit of the Secured Parties.
GRANTING CLAUSE
The Issuer hereby Grants to the Trustee on the Closing Date, as Trustee for the benefit of the Secured Parties, all right, title and interest of the Issuer, whether now existing or hereafter arising, in and to the following;
(a) the Receivables listed in the Schedule of Receivables from time to time;
(b) all monies received under the Receivables on and after the related Cutoff Date, including without limitation all Net Liquidation Proceeds received with respect to the Receivables on and after the related Cutoff Date;
(c) the security interests in the Financed Equipment granted by Obligors and the Originator pursuant to the related Contracts and any other interest of the Issuer in such Financed Equipment;
(d) any proceeds from claims on any Receivables Insurance Policies or certificates relating to the Financed Equipment securing the Receivables or the Obligors thereunder;
(e) all proceeds from Dealer Recourse with respect to the Receivables;
(f) refunds from the costs of, and other amounts received in connection with, extended warranty contracts with respect to Financed Equipment securing the Receivables;
(g) the Receivable File related to each Receivable and all other documents that the Originator or the Servicer keeps on file in accordance with its customary procedures for originating or servicing the Receivables for Obligors of the Financed Equipment;
(h) all amounts and property from time to time held in or credited to the Lockbox Account (with respect to the Receivables), the Collection Account, the Note Distribution Account, the Cap Distribution Account and the Reserve Account (it being understood that title to the Lockbox Account is not conveyed hereunder);
(i) all property (including the right to receive future Net Liquidation Proceeds) that secures a Receivable that has been acquired by or on behalf of the Issuer pursuant to a liquidation of such Receivable;
(i) the Sale and Servicing Agreement, including a direct right to cause the Seller to purchase Receivables from the Issuer pursuant to the Sale and Servicing Agreement under the circumstances specified therein;
(j) the Purchase and Sale Agreement, including a direct right to cause the Originator to purchase Receivables from the Seller pursuant to the Purchase and Sale Agreement under the circumstances specified therein;
(k) any Hedge Agreements;
(l) the Note Purchase Agreement (to the extent of the Issuer' s rights against the Servicer); and
(m) all present and future claims, demands, causes and choses in action in respect of any or all of the foregoing and all payments on or under and all proceeds of every kind and nature whatsoever in respect of any or all of the foregoing, including all proceeds of the conversion, voluntary or involuntary, into cash or other liquid property, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance proceeds, rights to payment of any and every kind and other forms of obligations and receivables, instruments and other property which at any time constitute all or part of or are included in the proceeds of any of the foregoing (collectively, the property described in this Granting Clause, the " Collateral" ).
The foregoing Grant is made in trust to the Trustee, for the benefit of the Secured Parties, to secure the payment of principal of and interest on, and any other amounts owing in respect of the Note, to secure the Secured Obligations and to secure compliance with this Indenture. Without limiting the generality of the foregoing, it is understood that all of the representations and warranties made by Seller from time to time under the Sale and Servicing Agreement, and all of the Issuer' s rights and remedies in respect thereof, are pledged to the Trustee for the benefit of the Noteholders hereunder. The Trustee hereby acknowledges such Grant, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties as required in this Indenture. This Indenture shall constitute a security agreement for purposes of the UCC as in effect in the States of New York and Delaware.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions . Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in Annex A to the Sale and Servicing Agreement dated as of the Closing Date among the Issuer, the Seller, the Servicer, the Originator, the Backup Servicer, the Custodian and the Trustee, as the same may be amended or supplemented from time to time (the " Sale and Servicing Agreement" ). Except as otherwise specified herein, any action hereunder or under the Notes requiring the consent, approval or acceptance of, or any direction by, the Noteholders shall require consent or direction, as applicable, of the Holders of at least a majority of the Outstanding Amount of the Notes.
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SECTION 1.2 Other Definitional Provisions .
(i) All terms defined in this Indenture shall have the defined meanings when used in any instrument governed hereby and in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.
(ii) Accounting terms used but not defined or partly defined in this Indenture, in any instrument governed hereby or in any certificate or other document made or delivered pursuant hereto, to the extent not defined, shall have the respective meanings given to them under GAAP or any such instrument, certificate or other document, as applicable. To the extent that the definitions of accounting terms in this Indenture or in any such instrument, certificate or other document are inconsistent with the meanings of such terms under GAAP, the definitions contained in this Indenture or in any such instrument, certificate or other document shall control.
(iii) The words " hereof ," " herein ," " hereunder" and words of similar import when used in this Indenture shall refer to this Indenture as a whole and not to any particular provision of this Indenture.
(iv) Section, Schedule and Exhibit references contained in this Indenture are references to Sections, Schedules and Exhibits in or to this Indenture unless otherwise specified; and the term " including" shall mean " including without limitation ."
(v) The definitions contained in this Indenture are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.
(vi) Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as the same may from time to time be amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments and instruments associated therewith; all references to a Person include its permitted successors and assigns.
ARTICLE II
THE NOTES
SECTION 2.1 Form . Each Note, together with the Trustee' s certificate of authentication, shall be in substantially the form set forth in Exhibit A-1 , with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined by the officers executing such Note, as evidenced by their execution of the Note. Any portion of the text of a Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note. Only one Note will be issued on the Closing Date which Note shall be subject to Advances and prepayments from time to time in accordance with Section 2.11 and Article X , respectively.
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(a) Each Note shall be typewritten, printed, lithographed or engraved or produced by any combination of these methods (with or without steel engraved borders), all as determined by the officers executing such Note, as evidenced by their execution of such Note.
(b) The terms of the form of Note set forth in Exhibit A-1 are part of the terms of this Indenture.
SECTION 2.2 Execution, Authentication and Delivery . The Notes shall be executed on behalf of the Issuer by any of its Authorized Officers. The signature of any such Authorized Officer on the Notes may be manual or facsimile.
(a) A Note bearing the manual or facsimile signature of individuals who were at any time Authorized Officers of the Issuer shall bind the Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of the Note or did not hold such offices at the date of the Note.
(b) The Trustee shall upon receipt of an Issuer Order for authentication and delivery, authenticate and deliver the Notes for original issue in an aggregate principal amount up to, but not in excess of, the Maximum Invested Amount.
(c) Each Note shall be dated the date of its authentication.
(d) No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears attached to such Note a certificate of authentication substantially in the form provided for herein, executed by the Trustee by the manual signature of one of its authorized signatories, and such certificate attached to such Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.
SECTION 2.3 [Reserved]
SECTION 2.4 Registration; Registration of Transfer and Exchange . The Issuer shall cause to be kept a register (the " Note Register" ) in which, subject to such reasonable regulations as it may prescribe and subject to the provisions of Section 2.5, the Issuer shall provide for the registration of the Notes, and the registration of transfers and exchanges of the Notes. The Trustee initially shall be " Note Registrar" for the purpose of registering the Notes and transfers of the Notes as herein provided. Upon any resignation or removal of any Note Registrar, the Issuer shall promptly appoint a successor or, if it elects not to make such an appointment, assume the duties of Note Registrar.
(a) If a Person other than the Trustee is appointed by the Issuer as Note Registrar, the Issuer will give the Trustee and the Noteholders prompt written notice of the appointment of such Note Registrar and of the location, and any change in the location, of the Note Register, and the Trustee shall have the right to inspect the Note Register at all reasonable times and to obtain copies thereof. The Trustee shall have the right to conclusively rely upon a certificate executed on behalf of the Note Registrar by an Executive Officer thereof as to the names and addresses of the Holders of the Notes and the principal amounts and number of the Notes.
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(b) Subject to Section 2.5 hereof, upon surrender for registration of transfer of a Note at the office or agency of the Issuer to be maintained as provided in Section 3.2 , if the requirements of Section 8-401(a) of the UCC are met, the Issuer shall execute and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, a new Note in the minimum denomination of $10,000,000 or any multiple of $1,000 in excess thereof and a like aggregate principal amount.
(c) At the option of any Holder, Notes may be exchanged for other Notes in any authorized denominations, of the same class and a like aggregate principal amount, upon surrender of the Notes to be exchanged at such office or agency. Whenever the Note is so surrendered for exchange, subject to Section 2.5 hereof, if the requirements of Section 8-401(a) of the UCC are met, the Issuer shall execute, and upon written request by the Issuer, the Trustee shall authenticate, and the Noteholders shall obtain from the Trustee, the Notes which the Noteholders making the exchange is entitled to receive. Every Note presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Issuer, the Trustee and the Note Registrar duly executed by the Holder thereof or his attorney duly authorized in writing.
(d) A Note issued upon any registration of transfer or exchange of a Note shall be the valid obligation of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Note surrendered upon such registration of transfer or exchange.
(e) Every Note presented or surrendered for registration of transfer or exchange shall be (i) duly endorsed by, or accompanied by a written instrument of transfer in the form attached to Exhibit A-1 duly executed by, the Holder thereof or such Holder' s attorney, duly authorized in writing, with such signature guaranteed by an " eligible guarantor institution" meeting the requirements of the Note Registrar which requirements include membership or participation in Securities Transfer Agents Medallion Program (" STAMP" ) or such other " signature guarantee program" as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Exchange Act and (ii) accompanied by such other documents as the Trustee may require.
(f) No service charge shall be made to a Holder for any registration of transfer or exchange of a Note, but the Note Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of a Note.
(g) The preceding provisions of this Section 2.4 notwithstanding, the Issuer shall not be required to make and the Note Registrar shall not register transfers or exchanges of any Note selected for redemption or of any Note for a period of 15 days preceding the due date for any payment with respect to the Note.
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SECTION 2.5 Restrictions on Transfer and Exchange .
(a) No transfer of a Note shall be made unless the transferor thereof has provided a certification substantially in the form of Exhibit A-2 that such transfer is (i) to the Issuer or an Affiliate of the Issuer, or (ii) to any person the transferor reasonably believes is a qualified institutional buyer (as defined in Rule 144A under the Securities Act) (a " Qualified Institutional Buyer" ) in a transaction meeting the requirements of Rule 144A under the Securities Act and Section 2.5(b) hereof, or (iii) in compliance with Section 2.5(b) hereof, (A) to an institutional investor that is an " accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act, or (B) in a transaction complying with or exempt from the registration requirements of the Securities Act and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction; provided , that, in the case of clauses (iii)(A) and (iii)(B) above, the Trustee or the Issuer may require an Opinion of Counsel to the effect that such transfer may be effected without registration under the Securities Act, which Opinion of Counsel, if so required, shall be addressed to the Issuer and the Trustee and shall be secured at the expense of such Holder. Each prospective purchaser by its acquisition of a Note, acknowledges that the Note will contain a legend substantially to the effect set forth in Section 2.5(c) (unless the Issuer determines otherwise in accordance with applicable law).
Any transfer or exchange of a Note to a proposed transferee taking such transfer in the form of a Note shall be conducted in accordance with the provisions of Section 2.4 and the Note Purchase Agreement, and shall be contingent upon receipt by the Note Registrar of (A) such Note, if applicable, properly endorsed for assignment or transfer or (B) written instructions from such Transferor directing the Note Registrar to cause to be credited the beneficial interest in or amount of the corresponding Note to the account designated by such Transferor in an amount equal to the amount of such Note or beneficial interest to be transferred (but not less than the minimum authorized denomination applicable to the Note) and (C) such certificates or signatures as may be required under the Note or this Section 2.5 , in each case, in form and substance satisfactory to the Note Registrar. The Note Registrar shall cause any such transfers and related cancellations or increases and related reductions, as applicable, to be properly recorded in its books in accordance with the requirements of Section 2.4 .
(b) Transfers Generally . Each purchaser of a Note will be deemed to have represented and agreed as follows: (i) In the case of a purchaser that is a Qualified Institutional Buyer (as defined in Rule 144A under the Securities Act), that the purchaser (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Notes to it is being made in reliance on the exemption from registration provided by Rule 144A under the Securities Act and (3) is acquiring the Notes for its own account or for one or more investor accounts, each of which is for a Qualified Institutional Buyer, and as to each of which the purchaser exercises sole investment discretion, for the purchaser and for each such account.
(ii) The purchaser has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Notes, and the purchaser and any accounts for which it is acting are each able to bear the economic risk of the purchaser' s or its investment.
-6- (iii) The purchaser understands that the Notes are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, the Notes have not been and will not be registered under the Securities Act, and, if in the future the purchaser decides to offer, resell, pledge or otherwise transfer the Notes, the Notes may be offered, resold, pledged or otherwise transferred only in accordance with the legend on the Notes set forth in Section 2.5(c) . The purchaser acknowledges that no representation is made by the Issuer as to the availability of any exemption under the Securities Act or any state securities laws for resale of the Notes.
(iv) The purchaser is not purchasing the Notes with a view to the resale, distribution or other disposition thereof in violation of the Securities Act. The purchaser understands that an investment in the Notes involves certain risks, including the risk of loss of a substantial part of its investment under certain circumstances. The purchaser has had access to such financial and other information concerning the Issuer and the Notes as it deemed necessary or appropriate in order to make an informed investment decision with respect to its purchase of the Notes, including an opportunity to ask questions of and request information from the Noteholders and the Issuer.
(v) In connection with the transfer of the Notes: (A) none of the Issuer or the Noteholders is acting as a fiduciary or financial or investment adviser for the purchaser; (B) the purchaser is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer or the Noteholders other than any representations expressly set forth in a written agreement with such party; (C) none of the Issuer or the Noteholders have given to the purchaser (directly or indirectly through any other person) any assurance, guarantee, or representation whatsoever as to the expected or projected success, profitability, return, performance, result, effect, consequence, or benefit (including legal, regulatory, tax, financial, accounting, or otherwise) of the Indenture or documentation for the Notes; (D) the purchaser has consulted with its own legal, regulatory, tax, business, investment, financial, and accounting advisers to the extent it has deemed necessary, and it has made its own investment decisions (including decisions regarding the suitability of any transaction pursuant to the Indenture) based upon its own judgment and upon any advice from such advisers as it has deemed necessary and not upon any view expressed by the Issuer; (E) the purchaser has determined that the rates, prices or amounts and other terms of the purchase and sale of the Notes reflect those in the relevant market for similar transactions; (F) the purchaser is acquiring the Notes with a full understanding of all of the terms, conditions and risks thereof (economic and otherwise), and it is capable of assuming and willing to assume (financially and otherwise) those risks; and (G) the purchaser is a sophisticated investor.
-7- (vi) The purchaser will not, at any time, offer to buy or offer to sell the Notes by any form of general solicitation or advertising, including, but not limited to, any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or radio or seminar or meeting whose attendees have been invited by general solicitations or advertisings.
(vii) The purchaser represents that either (1) it is not a Benefit Plan and is not acting on behalf of or investing plan assets of a Benefit Plan or (2) the purchaser' s purchase and holding of a Note is entitled to exemptive relief from the prohibited transaction rules of Section 406 of ERISA and Section 4975 of the Code pursuant to a U.S. Department of Labor prohibited transactio ...