Exhibit 4.2
GE DEALER FLOORPLAN MASTER NOTE TRUST,
as Issuer,
and
WILMINGTON TRUST COMPANY,
as Indenture Trustee
SERIES [ ] INDENTURE SUPPLEMENT
Dated as of [ ], 2004
Indenture Supplement
TABLE OF CONTENTS
PAGE
ARTICLE I Definitions
SECTION 1.1. Definitions........................................................... 1
SECTION 1.2. Incorporation of Terms................................................ 10
ARTICLE II Creation of the Series [ ] Notes
SECTION 2.1. Designation........................................................... 10
ARTICLE III [RESERVED]
ARTICLE IV Rights of Series [ ] Noteholders and Allocation and Application of
Collections
SECTION 4.1. Determination of Interest and Principal............................... 10
SECTION 4.2. Establishment of Accounts............................................. 12
SECTION 4.3. Calculations and Series Allocations................................... 13
SECTION 4.4. Application of Available Non-Principal Collections and Available
Principal Collections................................................. 15
SECTION 4.5. Distributions......................................................... 18
SECTION 4.6. Investor Charge-Offs.................................................. 19
SECTION 4.7. Reallocated Principal Collections..................................... 19
SECTION 4.8. Excess Non-Principal Collections...................................... 19
SECTION 4.9. Shared Principal Collections.......................................... 19
SECTION 4.10. [Reserve Account...................................................... 19
SECTION 4.11. Investment of Amounts on Deposit in Series Accounts................... 20
SECTION 4.12. Controlled Accumulation Period........................................ 20
SECTION 4.13. [Determination of LIBOR].............................................. 21
ARTICLE V Delivery of Series [ ] Notes; Reports to Series [ ] Noteholders
SECTION 5.1. Delivery and Payment for the Series [ ] Notes........................ 22
SECTION 5.2. Reports and Statements to Series [ ] Noteholders..................... 22
ARTICLE VI Series [ ] Early Amortization Events
SECTION 6.1. Series [ ] Early Amortization Events................................. 22
ARTICLE VII Redemption of Series [ ] Notes; Final Distributions; Series Termination
SECTION 7.1. Optional Redemption of Series [ ] Notes; Final Distributions......... 24
SECTION 7.2. Series Termination.................................................... 25
ARTICLE VIII Miscellaneous Provisions
SECTION 8.1. Ratification of Indenture; Amendments................................. 25
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 8.2. Form of Delivery of the Series [ ] Notes............................. 25
SECTION 8.3. Counterparts.......................................................... 25
SECTION 8.4. GOVERNING LAW......................................................... 26
SECTION 8.5. Limitation of Liability............................................... 27
SECTION 8.6. Rights of the Indenture Trustee....................................... 27
SECTION 8.7. No Petition........................................................... 27
EXHIBIT A-1 FORM OF CLASS A NOTE
EXHIBIT A-2 FORM OF CLASS B NOTE
EXHIBIT A-3 FORM OF CLASS C NOTE
EXHIBIT B FORM OF MONTHLY SERVICER'S CERTIFICATE
Indenture Supplement
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SERIES [ ] INDENTURE SUPPLEMENT, dated as of [ ], 2004 ("Indenture
Supplement"), between GE DEALER FLOORPLAN MASTER NOTE TRUST, a Delaware
statutory trust (herein, the "Issuer" or the "Trust"), and WILMINGTON TRUST
COMPANY, a [ ], not in its individual capacity, but solely as indenture trustee
(herein, together with its successors in the trusts thereunder as provided in
the Master Indenture referred to below, the "Indenture Trustee") under the
Master Indenture, dated as of [ ], 2004 (the "Indenture"), between the Issuer
and the Indenture Trustee.
The Principal Terms of this Series are set forth in this Indenture
Supplement.
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
(a) Capitalized terms used and not otherwise defined herein are used as
defined in Section 1.1 of the Indenture. This Indenture Supplement shall be
interpreted in accordance with the conventions set forth in Section 1.2 of the
Indenture.
(b) Each capitalized term defined herein relates only to Series [ ] and
to no other Series. Whenever used in this Indenture Supplement, the following
words and phrases shall have the following meanings:
"Additional Interest" means, for any Payment Date, Class A Additional
Interest, Class B Additional Interest and Class C Additional Interest for such
Payment Date.
"Addition Date" is defined in the First Tier Agreement.
"Administration Agreement" means the Administration Agreement, dated as of
[ ], 2004, between the Administrator, the Trustee and the Issuer.
"Administrator" means General Electric Capital Corporation, in its
capacity as Administrator under the Administration Agreement or any other Person
designated as an Administrator under the Administration Agreement.
"Aggregate Investor Default Amount" means, as to any Monthly Period, the
sum of the Investor Default Amounts in respect of such Monthly Period.
"Allocation Percentage" means, with respect to any Monthly Period, the
percentage equivalent of a fraction:
(a) the numerator of which shall be equal to:
(i) for Principal Collections during the Revolving Period and
for Non-Principal Collections and Default Amounts at any time, the
Collateral Amount at the end of the last day of the prior Monthly
Period (or, in the case of the first Monthly Period on the Closing
Date); or
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(ii) for Principal Collections during the Early Amortization
Period and the Controlled Accumulation Period, the Collateral Amount
at the end of the last day of the Revolving Period; and
(b) the denominator of which shall be the greater of (x) the
Aggregate Principal Receivables determined as of the close of business on
the last day of the prior Monthly Period (or, in the case of the first
Monthly Period, as of the Closing Date) and (y) the sum of the numerators
used to calculate the allocation percentages for allocations with respect
to Non-Principal Collections, Principal Collections or Default Amounts, as
applicable, for all outstanding Series on such date of determination;
provided, that if one or more Reset Dates occur in a Monthly Period, the
denominator for the portion of the Monthly Period falling on and after
such Reset Date and prior to any subsequent Reset Date will be
recalculated for such period as of the close of business on the subject
Reset Date; and provided, further, that notwithstanding the preceding
proviso, if a Reset Date occurs during any Monthly Period as a result of
an Addition Date and if the Issuer is permitted to make a single monthly
deposit to the Collection Account pursuant to Section 8.4 of the Indenture
for such Monthly Period, then the denominator determined pursuant to
clause (x) of this clause (b) for each day during such Monthly Period
shall equal the Average Principal Balance for such Monthly Period.
"Available Non-Principal Collections" means, for any Monthly Period, an
amount equal to the sum of (a) the Investor Non-Principal Collections for such
Monthly Period, (b) the Series [ ] Excess Non-Principal Collections for such
Monthly Period and (c) Investment Earnings.
"Available Principal Collections" means, for any Monthly Period, an amount
equal to (a) the Investor Principal Collections for such Monthly Period, minus
(b) the amount of Reallocated Principal Collections with respect to such Monthly
Period which pursuant to Section 4.7 are required to be applied on the related
Payment Date, plus (c) the sum of (i) any Shared Principal Collections with
respect to other Principal Sharing Series (including any amounts on deposit in
the Excess Funding Account that are allocated to Series [ ] for application as
Shared Principal Collections), (ii) the aggregate amount to be treated as
Available Principal Collections pursuant to Sections 4.4(a)(vi) and (vii), and
(iii) during an Early Amortization Event, the amount of Available Non-Principal
Collections used to pay principal on the Series [ ] Notes pursuant to Section
4.4(a)(xi) for the related Payment Date.
["Available Reserve Account Amount" means, for any Transfer Date, an
amount equal to the lesser of (a) the amount on deposit in the Reserve Account
(exclusive of Investment Earnings on such date and before giving effect to any
deposit to, or withdrawal from, the Reserve Account made or to be made with
respect to such date) and (b) the Required Reserve Account Amount, in each case
on such Transfer Date.]
"Average Principal Balance" means for any Monthly Period in which a Reset
Date occurs as a result of an Addition Date, the sum of (i) the Aggregate
Principal Receivables determined as of the close of business on the last day of
the prior Monthly Period, multiplied by a fraction the numerator of which is the
number of days from and including the first day of such Monthly Period, to but
excluding the related Reset Date, and the denominator of which is the number of
days in such Monthly Period, plus (ii) for each such Reset Date, the product of
the Aggregate
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Principal Receivables determined as of the close of business on such Reset Date,
multiplied by a fraction, the numerator of which is the number of days from and
including such Reset Date to the earlier of the last day of such Monthly Period
(in which case such period shall include such date) or the next succeeding Reset
Date (in which case such period shall exclude such date), and the denominator of
which is the number of days in such Monthly Period.
"Class A Additional Interest" is defined in Section 4.1(a).
"Class A Deficiency Amount" is defined in Section 4.1(a).
"Class A Monthly Interest" is defined in Section 4.1(a).
"Class A Note Initial Principal Balance" means [ ] dollars
($[___________]).
"Class A Note Interest Rate" means a per annum rate of [ ] percent ([__]%)
[in excess of LIBOR as determined on the LIBOR Determination Date for the
applicable Interest Period].
"Class A Note Principal Balance" means, on any date of determination, an
amount equal to (a) the Class A Note Initial Principal Balance, minus (b) the
aggregate amount of principal payments made to the Class A Noteholders on or
prior to such date.
"Class A Noteholder" means the Person in whose name a Class A Note is
registered in the Note Register.
"Class A Notes" means any one of the Notes executed by the Issuer and
authenticated by or on behalf of the Indenture Trustee, substantially in the
form of Exhibit A-1.
"Class A Required Amount" means, for any Payment Date, an amount equal to
the excess of the amounts described in Sections 4.4(a)(i), (ii) and (iii) over
Available Non-Principal Collections applied to pay such amount pursuant to
Section 4.4(a).
"Class B Additional Interest" is defined in Section 4.1(b).
"Class B Deficiency Amount" is defined in Section 4.1(b).
"Class B Monthly Interest" is defined in Section 4.1(b).
"Class B Note Initial Principal Balance" means [ ] dollars
($[__________]).
"Class B Note Interest Rate" means a per annum rate of [ ] percent
([___]%) [in excess of LIBOR as determined on the LIBOR Determination Date for
the applicable Interest Period].
"Class B Note Principal Balance" means, on any date of determination, an
amount equal to (a) the Class B Note Initial Principal Balance, minus (b) the
aggregate amount of principal payments made to the Class B Noteholders on or
prior to such date.
"Class B Noteholder" means the Person in whose name a Class B Note is
registered in the Note Register.
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"Class B Notes" means any one of the Notes executed by the Issuer and
authenticated by or on behalf of the Indenture Trustee, substantially in the
form of Exhibit A-2.
"Class B Required Amount" means, for any Payment Date, an amount equal to
the excess of the amount described in Section 4.4(a)(iv) over Available
Non-Principal Collections applied to pay such amount pursuant to Section 4.4(a).
"Class C Additional Interest" is defined in Section 4.1(c).
"Class C Deficiency Amount" is defined in Section 4.1(c).
"Class C Monthly Interest" is defined in Section 4.1(c).
"Class C Note Initial Principal Balance" means [ ] dollars
($[____________]).
"Class C Note Interest Rate" means a per annum rate of [ ] percent ([__]%)
[in excess of LIBOR as determined on the LIBOR Determination Date for the
applicable Interest Period].
"Class C Note Principal Balance" means, on any date of determination, an
amount equal to (a) the Class C Note Initial Principal Balance, minus (b) the
aggregate amount of principal payments made to the Class C Noteholders on or
prior to such date.
"Class C Noteholder" means the Person in whose name a Class C Note is
registered in the Note Register.
"Class C Notes" means any one of the Notes executed by the Issuer and
authenticated by or on behalf of the Indenture Trustee, substantially in the
form of Exhibit A-3.
"Class C Required Amount" means with respect to any Payment Date, an
amount equal to the excess of the amount described in Section 4.4(a)(v) over
Available Non-Principal Collections applied to pay such amount pursuant to
Section 4.4(a).
"Closing Date" means [ ].
"Collateral Amount" means, as of any date of determination, an amount
equal to the excess, if any, of (a) the sum of (i) the Note Principal Balance on
such date, plus (ii) an amount equal to [ ] percent ([ ]%) of the Note Principal
Balance on such date over (b) the excess, if any, of (i) the aggregate amount of
Investor Charge-Offs and Reallocated Principal Collections since the Closing
Date over (ii) the reimbursements of such amounts pursuant to Section
4.4(a)(vii) prior to such date of determination.
"Controlled Accumulation Amount" means, for any Transfer Date with respect
to the Controlled Accumulation Period, [ ] dollars ($[_________]); provided,
however, that if the Controlled Accumulation Period Length is determined to be
less than or more than [ ] months pursuant to Section 4.12, the Controlled
Accumulation Amount for each Payment Date with respect to the Controlled
Accumulation Period will be equal to (i) the initial Note Principal Balance
divided by (ii) the Controlled Accumulation Period Length; provided, further,
that the
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Controlled Accumulation Amount for any Payment Date shall not exceed the Note
Principal Balance minus any amount already on deposit in the Principal Account
on such Transfer Date.
"Controlled Accumulation Date" means [ ] [200 ].
"Controlled Accumulation Period" means, unless an Early Amortization Event
shall have occurred prior thereto, the period commencing at the opening of
business on the Controlled Accumulation Date and ending on the earliest to occur
of (a) the commencement of the Early Amortization Period, (b) the Series
Maturity Date, and (c) the date on which the Note Principal Balance has been
reduced to zero.
"Controlled Accumulation Period Length" is defined in Section 4.12.
"Default Amount" means, as to any Defaulted Account, the amount of
Principal Receivables (other than Ineligible Receivables, unless there is an
Insolvency Event with respect to the related Originator or the Transferor) in
such Defaulted Account on the day it became a Defaulted Account; provided, that
the amount of Principal Receivables included in the Overconcentration Amount (as
defined in the First Tier Agreement) shall be excluded in determining Default
Amounts.
"Default Margin" means [ ] percent ([ ]%) per annum.
"Defaulted Account" means an Account in which there are Defaulted
Receivables.
"Distribution Account" means the account designated as such, established
and owned by the Issuer and maintained in accordance with Section 4.2.
"Early Amortization Period" means the period commencing on the date on
which a Trust Early Amortization Event or a Series [ ] Early Amortization Event
is deemed to occur and ending on the Series Maturity Date.
"Excess Collateral Amount" means, at any time, the excess of (a) the
Collateral Amount over (b) the Note Principal Balance.
"Expected Principal Payment Date" means the Payment Date in [month, year].
"Group One" means Series [ ] and each other outstanding Series hereafter
specified in the related Indenture Supplement to be included in Group One.
"Indenture" is defined in the preamble.
"Indenture Trustee" is defined in the preamble.
"Ineligible Receivables" means Receivables that are not Eligible
Receivables (as such term is defined in the First Tier Agreement).
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"Initial Collateral Amount" means $[ ], which equals the sum of (i) the
Class A Note Initial Principal Balance, (ii) the Class B Note Initial Principal
Balance, (iii) the Class C Note Initial Principal Balance and (iv) the Initial
Excess Collateral Amount.
"Initial Excess Collateral Amount" means, as of any date of determination,
[ ] dollars ($ ).
"Interest Period" means, for any Payment Date, the period from and
including the Payment Date immediately preceding such Payment Date (or, in the
case of the first Payment Date, from and including the Closing Date) to but
excluding such Payment Date.
"Investment Earnings" means, for any Payment Date, all interest and
earnings on Permitted Investments included in the Reserve Account (net of losses
and investment expenses) during the period commencing on and including the
Payment Date immediately preceding such Payment Date and ending on but excluding
such Payment Date.
"Investor Charge-Offs" is defined in Section 4.6.
"Investor Default Amount" means, for any Monthly Period and for all
Accounts that became Defaulted Accounts during such Monthly Period, the sum of
the following amount for each such Defaulted Account: the product of (a) the
Default Amount with respect to each such Defaulted Account and (b) the
Allocation Percentage on the day such Account became a Defaulted Account.
"Investor Non-Principal Collections" means, for any Monthly Period, an
amount equal to the aggregate amount of Non-Principal Collections retained or
deposited in the Non-Principal Account for Series [ ] pursuant to Section
4.3(b)(i) for such Monthly Period.
"Investor Principal Collections" means, for any Monthly Period, an amount
equal to the aggregate amount of Principal Collections retained or deposited in
the Principal Account for Series [ ] pursuant to Section 4.3(b)(ii) for such
Monthly Period.
"Issuer" is defined in the preamble.
["LIBOR" means, for any Interest Period, the London interbank offered rate
for one-month United States dollar deposits determined by the Indenture Trustee
for each Interest Period in accordance with the provisions of Section 4.13.]
["LIBOR Determination Date" means (i) with respect to the first Interest
Period, the Closing Date, and (ii) with respect to any Interest Period
thereafter, the second London Business Day prior to the commencement of such
Interest Period.]
["London Business Day" means any day on which dealings in deposits in
United States dollars are transacted in the London interbank market.]
"Minimum Free Equity Percentage" means, for purposes of Series [ ], [ ]
percent ([ ]%).
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"Monthly Interest" means, for any Payment Date, the sum of the Class A
Monthly Interest, the Class B Monthly Interest, and the Class C Monthly Interest
for such Payment Date.
"Monthly Payment Rate" means, for any Monthly Period, a fraction
(expressed as a percentage), (a) the numerator of which is the Principal
Collections (without excluding therefrom the Discount Portions) collected during
such Monthly Period, and (b) the denominator of which is the aggregate balance
of the Principal Receivables [(without deducting therefrom the Discount
Portions)] as of the beginning of such Monthly Period.
"Monthly Period" means, as to each Payment Date, the preceding calendar
month; provided, that the Monthly Period relating to the first Payment Date
after the Closing Date means the period from and including the Closing Date to
and including the end of the calendar month preceding the first Payment Date.
"Monthly Principal" is defined in Section 4.1(d).
"Monthly Principal Reallocation Amount" means, for any Monthly Period, an
amount equal to the lesser of (i) the Required Amount and (ii) (x) the Initial
Excess Collateral Amount minus (y) the sum of [(I)] the amount of unreimbursed
Investor Charge-Offs (after giving effect to Investor Charge-Offs for such
Monthly Period) and unreimbursed Reallocated Principal Collections (as of the
previous Payment Date) [and (II) any reductions to the Collateral Amount on
account of reductions to the Required Excess Collateral Amount], provided,
however, the Monthly Principal Reallocation Amount shall not be less than zero.
"Non-Principal Account" means the account designated as such, established
and owned by the Issuer and maintained in accordance with Section 4.2.
"Non-Principal Shortfall" is defined in Section 4.8.
"Noteholder Servicing Fee" means, for any Transfer Date, an amount equal
to one-twelfth of the product of (a) the Series Servicing Fee Percentage and (b)
the Collateral Amount as of the last day of the Monthly Period preceding such
Transfer Date; provided, however, that with respect to the first Transfer Date,
the Noteholder Servicing Fee shall be calculated based on the Collateral Amount
as of the Closing Date and shall be an amount equal to the product of (a) the
product of (I) the Series Servicing Fee Percentage and (II) the Collateral
Amount as of the Closing Date and (b) the number of days from and including the
Closing Date to and including the last day of the month in which the Closing
Date occurs divided by 360.
"Note Principal Balance" means, on any date of determination, an amount
equal to the sum of the Class A Note Principal Balance, the Class B Note
Principal Balance and the Class C Note Principal Balance.
"Payment Date" means the twentieth (20th) day of each calendar month, or
if such twentieth (20th) day is not a Business Day, the next succeeding Business
Day; provided, that the first Payment Date shall be [ ], 2004.
"Principal Account" means the account designated as such, established and
owned by the Issuer and maintained in accordance with Section 4.2.
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"Principal Shortfall" is defined in Section 4.9.
"Rating Agency" means, with respect to Series [ ], each of [Fitch, Xxxxx'x
and S&P].
"Reallocated Principal Collections" means, for any Transfer Date, Investor
Principal Collections applied in accordance with Section 4.7 in an amount not to
exceed the Monthly Principal Reallocation Amount for the related Monthly Period.
"Reassignment Amount" means, for any Transfer Date, after giving effect to
any deposits and payments otherwise to be made on the related Payment Date, the
sum of (i) the Note Principal Balance on the related Payment Date, plus (ii)
Monthly Interest for the related Payment Date and any Monthly Interest
previously due but not distributed to the Series [ ] Noteholders, plus (iii)
without duplication, the other amounts specified in clauses (i), (ii) and (iii)
of Section 7.1(d).
"Record Date" means, for purposes of Series [ ] with respect to any
Payment Date, the date falling five (5) Business Days prior to such date.
"Reference Banks" means four major banks in the London interbank market
selected by the Master Servicer.
"Removal Date" is defined in the Second Tier Agreement.
"Required Amount" means, for any Payment Date, an amount equal to the
excess of the sum of the amounts described in Sections 4.4(a)(i) through (v)
over Available Non-Principal Collections applied to pay such amount pursuant to
Section 4.4(a).
"Required Excess Collateral Amount" means, at any time, [ ] percent ([ ]%)
of the Collateral Amount.
"Required Reserve Account Amount" means, for any day, an amount equal to
the product of (a) [ ] percent ([ ]%) and (b) the Note Principal Balance as of
such day (after giving effect to any changes therein on such day).
"Reset Date" means:
(a) each Addition Date;
(b) each Removal Date;
(c) each date on which there is an increase in the outstanding
balance of any Variable Funding Note; and
(d) each date on which a new Series or Class of Notes is issued.
["Reserve Account" means the account designated as such, established and
owned by the Issuer and maintained in accordance with Section 4.2.]
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["Reserve Account Deficiency" means the excess, if any, of the Required
Reserve Account Amount over the Available Reserve Account Amount.]
"Revolving Period" means the period beginning on the Closing Date and
ending at the close of business on the day immediately preceding the earlier of
the day the Controlled Accumulation Period commences or the day the Early
Amortization Period commences.
"Series Accounts" is defined in Section 4.2.
"Series Allocation Percentage" means, with respect to any Monthly Period,
the percentage equivalent of a fraction, the numerator of which is the numerator
used in determining the Allocation Percentage for Non-Principal Collections for
that Monthly Period and the denominator of which is the sum of the numerators
used in determining the Allocation Percentage for Non-Principal Collections for
all outstanding Series on such date of determination; provided, that if one or
more Reset Dates occur in a Monthly Period, the Series Allocation Percentage for
the portion of the Monthly Period falling on and after each such Reset Date and
prior to any subsequent Reset Date will be determined using a denominator which
is equal to the sum of the numerators used in determining the Allocation
Percentage for Non-Principal Collections for all outstanding Series as of the
close of business on the subject Reset Date.
"Series Servicing Fee Percentage" means [ ] percent ([ ]%) per annum.
"Series Maturity Date" means the earliest to occur of (a) the date on
which the Note Principal Balance is paid in full, (b) the date on which the
Collateral Amount is reduced to zero and (c) the Series [ ] Final Maturity Date.
"Series [ ]" means the Series of Notes the terms of which are specified in
this Indenture Supplement.
"Series [ ] Early Amortization Event" is defined in Section 6.1. The
Series [ ] Early Amortization Events are, with respect to Series [ ], the Early
Amortization Events contemplated by clause (a) of the definition of Early
Amortization Event in the Indenture.
"Series [ ] Excess Non-Principal Collections" means Excess Non-Principal
Collections allocated from other Series in Group One to Series [ ] pursuant to
Section 8.6 of the Indenture.
"Series [ ] Final Maturity Date" means the Payment Date in [month, year].
"Series [ ] Note" means any one of the Class A Notes, Class B Notes or
Class C Notes executed by the Issuer and authenticated by or on behalf of the
Indenture Trustee, substantially in the form of Exhibit X-0, X-0 xx X-0,
respectively.
"Series [ ] Noteholder" means the Person in whose name a Series [ ] Note
is registered in the Note Register.
"Servicer Advance" is defined in the Servicing Agreement.
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"Surplus Collateral Amount" means, at any time, the excess, if any, of the
Excess Collateral Amount over the Required Excess Collateral Amount.
"Target Amount" is defined in Section 4.3(b)(i).
"Trust" is defined in the preamble.
SECTION 1.2. Incorporation of Terms. The terms of the Indenture are
incorporated in this Supplement as if set forth in full herein. As supplemented
by this Supplement, the Indenture is in all respects ratified and confirmed and
both together shall be read, taken and construed as one and the same agreement.
If the terms of this Supplement and the terms of the Indenture conflict, the
terms of this Supplement shall control with respect to Series [ ].
ARTICLE II
CREATION OF THE SERIES [ ] NOTES
SECTION 2.1. Designation.
(a) There is hereby created and designated a Series of Notes to be
issued pursuant to the Indenture and this Indenture Supplement to be known as
"GE Dealer Floorplan Master Note Trust, Series [ ]" or the "Series [ ] Notes."
The Series [ ] Notes shall be issued in three Classes, known as the "Class A
Series [ ] [Floating Rate] Asset Backed Notes," the "Class B Series [ ]
[Floating Rate] Asset Backed Notes," and the "Class C Series [ ] [Floating Rate]
Asset Backed Notes."
(b) Series [ ] shall be included in Group One and shall be a Principal
Sharing Series. Series [ ] shall be an Excess Allocation Series with respect to
Group One only. Series [ ] shall not be subordinated to any other Series.
ARTICLE III
[RESERVED]
ARTICLE IV
RIGHTS OF SERIES [ ] NOTEHOLDERS AND ALLOCATION AND APPLICATION
OF COLLECTIONS
SECTION 4.1. Determination of Interest and Principal.
(a) The amount of monthly interest ("Class A Monthly Interest") due and
payable with respect to the Class A Notes on any Payment Date shall be an amount
equal to the product of (i) a fraction, the numerator of which is [the actual
number of days in the related Interest Period] [30] and the denominator of which
is three hundred sixty (360), (ii) the Class A Note Interest Rate in effect with
respect to the related Interest Period and (iii) the Class A Note Principal
Balance as of the close of business on the last day of the preceding Monthly
Period (or, with respect to the initial Payment Date, the Class A Note Initial
Principal Balance).
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With respect to each Payment Date, the Issuer shall determine the excess,
if any (the "Class A Deficiency Amount"), of (x) the aggregate amount of Class A
Monthly Interest payable pursuant to this Section 4.1(a) as of the prior Payment
Dates over (y) the amount of Class A Monthly Interest actually paid on such
Payment Dates. If the Class A Deficiency Amount for any Payment Date is greater
than zero, on each subsequent Payment Date until such Class A Deficiency Amount
is fully paid, an additional amount ("Class A Additional Interest") equal to the
product of (i) a fraction, the numerator of which is the actual number of days
in the related Interest Period and the denominator of which is three hundred
sixty (360), (ii) the Class A Note Interest Rate in effect with respect to the
related Interest Period plus the Default Margin and (iii) such Class A
Deficiency Amount (or the portion thereof which has not been paid to the Class A
Noteholders) shall be payable as provided herein with respect to the Class A
Notes. Notwithstanding anything to the contrary herein, Class A Additional
Interest shall be payable or distributed to the Class A Noteholders only to the
extent permitted by applicable law.
(b) The amount of monthly interest ("Class B Monthly Interest") due and
payable with respect to the Class B Notes on any Payment Date shall be an amount
equal to the product of (i) a fraction, the numerator of which is [the actual
number of days in the related Interest Period] [30] and the denominator of which
is three hundred sixty (360), (ii) the Class B Note Interest Rate in effect with
respect to the related Interest Period and (iii) the Class B Note Principal
Balance as of the close of business on the last day of the preceding Monthly
Period (or, with respect to the initial Payment Date, the Class B Note Initial
Principal Balance).
With respect to each Payment Date, the Issuer shall determine the excess,
if any (the "Class B Deficiency Amount"), of (x) the aggregate amount of Class B
Monthly Interest payable pursuant to this Section 4.1(b) as of the prior Payment
Dates over (y) the amount of Class B Monthly Interest actually paid on such
Payment Dates. If the Class B Deficiency Amount for any Payment Date is greater
than zero, on each subsequent Payment Date until such Class B Deficiency Amount
is fully paid, an additional amount ("Class B Additional Interest") equal to the
product of (i) a fraction, the numerator of which is the actual number of days
in the related Interest Period and the denominator of which is three hundred
sixty (360), (ii) the Class B Note Interest Rate in effect with respect to the
related Interest Period plus the Default Margin and (iii) such Class B
Deficiency Amount (or the portion thereof which has not been paid to the Class B
Noteholders) shall be payable as provided herein with respect to the Class B
Notes. Notwithstanding anything to the contrary herein, Class B Additional
Interest shall be payable or distributed to the Class B Noteholders only to the
extent permitted by applicable law.
(c) The amount of monthly interest ("Class C Monthly Interest") due and
payable with respect to the Class C Notes on any Payment Date shall be an amount
equal to the product of (i) a fraction, the numerator of which is [the actual
number of days in the related Interest Period] [30] and the denominator of which
is three hundred sixty (360), (ii) the Class C Note Interest Rate in effect with
respect to the related Interest Period and (iii) the Class C Note Principal
Balance as of the close of business on the last day of the preceding Monthly
Period (or, with respect to the initial Payment Date, the Class C Note Initial
Principal Balance).
With respect to each Payment Date, the Issuer shall determine the excess,
if any (the "Class C Deficiency Amount"), of (x) the aggregate amount of Class C
Monthly Interest payable pursuant to this Section 4.1(c) as of the prior Payment
Dates over (y) the amount of Class C
Indenture Supplement
11
Monthly Interest actually paid on such Payment Dates. If the Class C Deficiency
Amount for any Payment Date is greater than zero, on each subsequent Payment
Date until such Class C Deficiency Amount is fully paid, an additional amount
("Class C Additional Interest") equal to the product of (i) a fraction, the
numerator of which is the actual number of days in the related Interest Period
and the denominator of which is three hundred sixty (360), (ii) the Class C Note
Interest Rate in effect with respect to the related Interest Period plus the
Default Margin and (iii) such Class C Deficiency Amount (or the portion thereof
which has not been paid to the Class C Noteholders) shall be payable as provided
herein with respect to the Class C Notes. Notwithstanding anything to the
contrary herein, Class C Additional Interest shall be payable or distributed to
the Class C Noteholders only to the extent permitted by applicable law.
(d) The amount of monthly principal ("Monthly Principal") to be
transferred from the Principal Account with respect to the Series [ ] Notes on
each Transfer Date, beginning with the Transfer Date following the Monthly
Period in which the Controlled Accumulation Period or the Early Amortization
Period begins, shall be equal to the lesser of (i) the Available Principal
Collections for the preceding Monthly Period and (ii) the Note Principal Balance
on such Transfer Date.
SECTION 4.2. Establishment of Accounts.
(a) As of the Closing Date, the Issuer covenants to have established and
shall thereafter maintain the Non-Principal Account, the Principal
Account[,][and] the Distribution Account [and the Reserve Account]
(collectively, the "Series Accounts") each of which shall be an Eligible Deposit
Account.
(b) If the depositary institution wishes to resign as depositary of any
of the Series Accounts for any reason or fails to carry out the instructions of
the Issuer for any reason, then the Issuer shall promptly notify the Indenture
Trustee on behalf of the Series [ ] Noteholders.
(c) On or before the Closing Date, the Issuer shall enter into a
depositary agreement to govern the Series Accounts pursuant to which such
accounts are continuously identified in the depositary institution's books and
records as subject to a security interest in favor of the Indenture Trustee on
behalf of the Series [ ] Noteholders and, except as may be expressly provided
herein to the contrary, in order to perfect the security interest of the
Indenture Trustee on behalf of the Series [ ] Noteholders under the UCC, the
Indenture Trustee on behalf of the Series [ ] Noteholders shall have the power
to direct disposition of the funds in the Series Accounts without further
consent by the Issuer; provided, however, that prior to the delivery by the
Indenture Trustee on behalf of the Series [ ] Noteholders of notice otherwise,
the Issuer shall have the right to direct the disposition of funds in the Series
Accounts; provided, further that the Indenture Trustee on behalf of the Series [
] Noteholders agrees that it will not deliver such notice or exercise its power
to direct disposition of the funds in the Series Accounts unless an Event of
Default has occurred and is continuing. Upon delivery of the foregoing notice by
the Indenture Trustee on behalf of the Series [ ] Noteholders, the depositary
institution shall comply with the orders of the Indenture Trustee on behalf of
the Series [ ] Noteholders without further consent by the Issuer.
Indenture Supplement
12
(d) The Issuer shall not close any of the Series Accounts unless it
shall have (i) received the prior consent of the Indenture Trustee on behalf of
the Series [ ] Noteholders, (ii) established a new Eligible Deposit Account with
the depositary institution holding the Series Account being closed or with a new
depositary institution satisfactory to the Indenture Trustee on behalf of the
Series [ ] Noteholders, (iii) entered into a depositary agreement to govern such
new account(s) with such new depositary institution which agreement is
satisfactory in all respects to the Indenture Trustee on behalf of Noteholders
(whereupon such new account(s) shall become the applicable Series Account(s) for
all purposes of this Indenture Supplement), and (iv) taken all such action as
the Indenture Trustee on behalf of the Series [ ] Noteholders shall reasonably
require to grant and perfect a first priority security interest in such
account(s) in favor of the Indenture Trustee.
SECTION 4.3. Calculations and Series Allocations.
(a) Allocations. Non-Principal Collections, Principal Collections and
Defaulted Receivables allocated to Series [ ] pursuant to Article VIII of the
Indenture shall be allocated and distributed as set forth in this Article IV.
During any period when the Issuer is permitted by Section 8.4 of the Indenture
to make a single monthly deposit to the Collection Account, amounts allocated to
the Series [ ] Noteholders pursuant to this Sections 4.3 with respect to any
Monthly Period need not be deposited into the Collection Account or any Series
Account prior to the related Transfer Date, and, when so deposited, (x) may be
deposited net of any amounts required to be distributed to Transferor and, if an
Originator is Servicer, any amounts owed to the Master Servicer, and (y) shall
be deposited into the Non-Principal Account (in the case of Non-Principal
Collections) and the Principal Account (in the case of Principal Collections
(not including any Shared Principal Collections allocated to Series [ ] pursuant
to Section 8.5 of the Indenture)).
(b) Allocations to the Series [ ] Noteholders. The Issuer shall, on each
Date of Processing, allocate to the Series [ ] Noteholders the following amounts
as set forth below:
(i) Allocations of Non-Principal Collections. The Issuer shall
allocate to the Series [ ] Noteholders an amount equal to the product of
(A) the Allocation Percentage and (B) the aggregate Non-Principal
Collections processed on such Date of Processing and shall deposit such
amount into the Non-Principal Account; provided; that, so long as, with
respect to each Monthly Period falling in the Revolving Period (and with
respect to that portion of each Monthly Period in the Controlled
Accumulation Period falling on or after the day on which Principal
Collections equal to the related Controlled Payment Amount have been
allocated pursuant to Section 4.3(b)(ii) and deposited pursuant to Section
4.3(a)), Non-Principal Collections shall be transferred into the
Non-Principal Account only until such time as the aggregate amount so
deposited equals the sum (the "Target Amount") of (A) the fees payable to
the Indenture Trustee, the Trustee and the Administrator on the related
Payment Date, (B) the Monthly Interest for the related Payment Date, (C)
the Noteholder Servicing Fee, [and (D) any amount required to be deposited
in the Reserve Account on the related Transfer Date]; and any
Non-Principal Collections allocated to the Series [ ] Noteholders but not
deposited into the Non-Principal Account due to the operation of this
proviso shall be released to Transferor; provided, further, that,
notwithstanding the preceding proviso, if on any Business Day the
Indenture Supplement
13
Issuer determines that the Target Amount for a Monthly Period exceeds the
Target Amount for that Monthly Period as previously calculated by Issuer,
then (x) Issuer shall (on the same Business Day) inform Transferor of such
determination, and (y) within two (2) Business Days thereafter direct
Transferor to deposit into the Non-Principal Account funds in an amount
equal to the excess of the recalculated Target Amount for such Monthly
Period over the Target Amount previously calculated by the Issuer for the
same Monthly Period; and provided, further, if on any Transfer Date the
Free Equity Amount is less than the Minimum Free Equity Amount after
giving effect to all transfers and deposits on that Transfer Date, the
Issuer shall cause Transferor, on that Transfer Date, to deposit into the
Principal Account funds in an amount equal to the amounts of Available
Non-Principal Collections that are required to be treated as Available
Principal Collections pursuant to Section 4.4(a)(vi) and (vii) but are not
available from funds in the Non-Principal Account as a result of the
operation of the second preceding proviso.
With respect to any Monthly Period when deposits of Non-Principal
Collections into the Non-Principal Account are limited to deposits up to the
Target Amount in accordance with clause (i) above, notwithstanding such
limitation: (1) "Reallocated Principal Collections" for the related Transfer
Date shall be calculated as if the full amount of Non-Principal Collections
allocated to the Series [ ] Noteholders during that Monthly Period had been
deposited in the Non-Principal Account and applied on such Transfer Date in
accordance with Section 4.4(a); and (2) Non-Principal Collections released to
Transferor pursuant to clause (i) above shall be deemed, for purposes of all
calculations under this Indenture Supplement, to have been applied to the items
specified in Section 4.4(a) to which such amounts would have been applied (and
in the priority in which they would have been applied) had such amounts been
available in the Non-Principal Account on such Transfer Date. To avoid doubt,
the calculations referred to in the preceding clause (2) include the
calculations required by clause (b)(iii) of the definition of Collateral Amount.
(ii) Allocations of Principal Collections. The Issuer shall
allocate to the Series [ ] Noteholders the following amounts as set forth
below:
(x) Allocations During the Revolving Period.
(1) During the Revolving Period an amount equal to the
product of the Allocation Percentage and the aggregate amount
of Principal Collections processed on such Date of Processing,
shall be allocated to the Series [ ] Noteholders and first, if
any other Principal Sharing Series is outstanding and in its
accumulation period or amortization period, shall be retained
in the Principal Account for application, to the extent
necessary, as Shared Principal Collections to other Principal
Sharing Series on the related Payment Date, second, shall be
deposited in the Excess Funding Account to the extent
necessary so that the Free Equity Amount is not less than the
Minimum Free Equity Amount, and third, shall be paid to the
holders of the Transferor Interest.
(2) With respect to each Monthly Period falling in the
Revolving Period, to the extent that Principal Collections
allocated to the Series [ ]
Indenture Supplement
14
Noteholders pursuant to this Section 4.3(b)(ii) are paid to
Transferor, the Issuer shall cause Transferor to make an
amount equal to the Reallocated Principal Collections for the
related Transfer Date available on that Transfer Date for
application in accordance with Section 4.7.
(y) Allocations During the Controlled Accumulation Period.
During the Controlled Accumulation Period, an amount equal to
the product of the Allocation Percentage and the aggregate
amount of Principal Collections processed on such Date of
Processing shall be allocated to the Series [ ] Noteholders
and transferred to the Principal Account until applied as
provided herein; provided, however, that after the date on
which an amount of such Principal Collections equal to the
Note Principal Balance has been deposited into the Principal
Account such amount shall be first, if any other Principal
Sharing Series is outstanding and in its accumulation period
or amortization period, retained in the Principal Account for
application, to the extent necessary, as Shared Principal
Collections to other Principal Sharing Series on the related
Payment Date, and second, deposited in the Excess Funding
Account to the extent necessary so that the Free Equity Amount
is not less than the Minimum Free Equity Amount, and third,
paid to the holders of the Transferor Interest.
(z) Allocations During the Early Amortization Period. During
the Early Amortization Period, an amount equal to the product
of the Allocation Percentage and the aggregate amount of
Principal Collections processed on such Date of Processing
shall be allocated to the [ ] Noteholders and transferred to
the Principal Account until applied as provided herein;
provided, however, that after the date on which an amount of
such Principal Collections equal to the Note Principal Balance
has been deposited into the Principal Account such amount
shall be first, if any other Principal Sharing Series is
outstanding and in its accumulation period or amortization
period, retained in the Principal Account for application, to
the extent necessary, as Shared Principal Collections to other
Principal Sharing Series on the related Payment Date, and
second, deposited in the Excess Funding Account to the extent
necessary so that the Free Equity Amount is not less than the
Minimum Free Equity Amount, and third, paid to the holders of
the Transferor Interest.
SECTION 4.4. Application of Available Non-Principal Collections and
Available Principal Collections. On each Transfer Date or related Payment Date,
as applicable, the Issuer shall withdraw, to the extent of available funds, the
amount required to be withdrawn from the Non-Principal Account, the Principal
Account and the Distribution Account as follows:
(a) On each Transfer Date, an amount equal to the Available
Non-Principal Collections with respect to the related Payment Date will be paid
or deposited in the following priority:
Indenture Supplement
15
(i) on a pari passu basis,
(A) the accrued and unpaid fees and other amounts owed to the
Indenture Trustee up to a maximum amount of [ ] dollars ($[ ]) for
the prior Monthly Period,
(B) the accrued and unpaid fees and other amounts owed to the
trustee for the DFS Financing Trust up to a maximum amount of [ ]
dollars ($[ ]) for the prior Monthly Period,
(C) the accrued and unpaid fees and other amounts owed to the
Trustee up to a maximum amount of [ ] dollars ($[ ]) for the prior
Monthly Period, and
(D) the accrued and unpaid fees and other amounts owed to the
Administrator up to a maximum amount of [ ] dollars ($[ ]) for the
prior Monthly Period;
(ii) to pay the Noteholder Servicing Fee for the prior Monthly
Period and any overdue Noteholder Servicing Fee (to the extent not
previously paid [, and to reimburse the Master Servicer for any Servicer
Advances and accrued and unpaid interest thereon]);
(iii) an amount equal to Class A Monthly Interest for such Payment
Date, plus any Class A Deficiency Amount, plus the amount of any Class A
Additional Interest for such Payment Date, plus (without duplication) the
amount of any Class A Additional Interest previously due but not paid to
Class A Noteholders on a prior Payment Date, shall be deposited into the
Distribution Account;
(iv) an amount equal to Class B Monthly Interest for such Payment
Date, plus any Class B Deficiency Amount, plus the amount of any Class B
Additional Interest for such Payment Date, plus (without duplication) the
amount of any Class B Additional Interest previously due but not paid to
Class B Noteholders on a prior Payment Date, shall be deposited into the
Distribution Account;
(v) an amount equal to Class C Monthly Interest for such Payment
Date, plus any Class C Deficiency Amount, plus the amount of any Class C
Additional Interest for such Payment Date, plus (without duplication) the
amount of any Class C Additional Interest previously due but not paid to
Class C Noteholders on a prior Payment Date, shall be deposited into the
Distribution Account;
(vi) to deposit into the Principal Account, during the Controlled
Accumulation Period or the Early Amortization Period, an amount (treated
as a portion of Available Principal Collections) equal to the Aggregate
Investor Default Amount for the prior Monthly Period;
(vii) to deposit into the Principal Account, during the Controlled
Accumulation Period or the Early Amortization Period, an amount (treated
as a portion of Available Principal Collections) equal to the sum of the
aggregate amount of Investor Charge-Offs
Indenture Supplement
16
and the amount of Reallocated Principal Collections which have not been
previously reimbursed;
(viii) [to deposit into the Reserve Account an amount equal to the
amounts, if any, required to be deposited in the Reserve Account pursuant
to Section 4.10(d);]
(ix) to pay to the Persons listed in clause (i) above on a pari
passu basis any amounts owed to such Persons and not paid pursuant to
clause (i) above;
(x) if the Early Amortization Period has not occurred and is not
continuing, the balance, if any, will constitute a portion of Excess
Non-Principal Collections for such Payment Date and will be applied in
accordance with Section 8.6 of the Indenture; and
(xi) during the Early Amortization Period, the remaining balance,
if any, will be used to make principal payments on first, to the Class A
Notes until the Class A Note Principal Balance is paid in full, second, to
the Class B Notes until the Class B Note Principal Balance is paid in full
and third, to the Class C Notes until the Class C Note Principal Balance
is paid in full.
On each Transfer Date, to the extent that there is a shortfall (a
"Transfer Date Shortfall") in the amounts to be paid or deposited pursuant to
[clauses(a)(i), (a)(iii), (a)(iv) and (a)(v)] of this Section 4.4, [the
Indenture Trustee] shall withdraw from the Collection Account, from any Servicer
Advance on deposit therein, an amount equal to the lesser of (i) the Transfer
Date Shortfall for such Transfer Date and (ii) the product of (x) such Servicer
Advance and (y) the Series Allocation Percentage for the previous Monthly
Period, and apply such withdrawn amount to make the payments and deposits
contemplated by such clauses of this Section 4.4.
(b) On each Transfer Date with respect to the Revolving Period, an
amount equal to the Available Principal Collections for the related Monthly
Period shall be treated as Shared Principal Collections and applied in
accordance with Section 8.5 of the Indenture.
(c) On each Transfer Date or Payment Date, as applicable, with respect
to the Controlled Accumulation Period or the Early Amortization Period, an
amount equal to the Available Principal Collections for the related Monthly
Period shall be paid or deposited in the following order of priority:
(i) during the Controlled Accumulation Period, an amount equal to
the Monthly Principal for each Transfer Date shall be deposited into the
Principal Account on such Transfer Date;
(ii) during the Early Amortization Period, an amount equal to the
Monthly Principal for each Transfer Date shall be deposited into the
Distribution Account on such Transfer Date and on the related Payment Date
shall be paid, first to the Class A Noteholders on the related Payment
Date until the Class A Note Principal Balance has been paid in full;
second to the Class B Noteholders until the Class B Note Principal Balance
has been paid in full; and third to the Class C Noteholders until the
Class C Note Principal Balance has been paid in full; and
Indenture Supplement
17
(iii) in the case of each of the Controlled Accumulation Period and
the Early Amortization Period, the balance of such Available Principal
Collections remaining after application in accordance with clauses (i) and
(ii) above shall be treated as Shared Principal Collections and applied in
accordance with Section 8.5 of the Indenture. As of any Payment Date
during the Controlled Accumulation Period or Early Amortization Period on
which Available Principal Collections are treated as Shared Principal
Collections, the Collateral Amount shall be reduced by an amount equal to
the lesser of (x) the amount of Available Principal Collections applied as
Shared Principal Collections and (y) the excess, if any, of the Excess
Collateral Amount over the Required Excess Collateral Amount.
(d) On each Payment Date in accordance with Section 4.5, the Issuer
shall pay first, to the Class A Noteholders from the Distribution Account, the
amount deposited into the Distribution Account pursuant to Section 4.4(a)(iii)
on the preceding Transfer Date, second, to the Class B Noteholders from the
Distribution Account, the amount deposited into the Distribution Account
pursuant to Section 4.4(a)(iv) on the preceding Transfer Date and third, to the
Class C Noteholders from the Distribution Account, the amount deposited into the
Distribution Account pursuant to Section 4.4(a)(v) on the preceding Transfer
Date;
(e) On the earlier to occur of (i) the first Transfer Date during the
Early Amortization Period and (ii) the Transfer Date immediately preceding the
Expected Principal Payment Date, the Issuer shall withdraw from the Principal
Account and deposit into the Distribution Account the amount deposited into the
Principal Account pursuant to Section 4.4(c)(i) and on the related Payment Date
shall pay such amount first to the Class A Noteholders, until the Class A Note
Principal Balance is paid in full, second to the Class B Noteholders until the
Class B Note Principal Balance is paid in full and third to the Class C
Noteholders until the Class C Note Principal Balance is paid in full.
SECTION 4.5. Distributions.
(a) On each Payment Date, the Issuer shall pay to each Class A
Noteholder of record on the related Record Date such Class A Noteholder's pro
rata share of the amounts on deposit in the Distribution Account that are
allocated and available on such Payment Date and as are payable to the Class A
Noteholders pursuant to this Indenture Supplement.
(b) On each Payment Date, the Issuer shall pay to each Class B
Noteholder of record on the related Record Date such Class B Noteholder's pro
rata share of the amounts on deposit in the Distribution Account that are
allocated and available on such Payment Date and as are payable to the Class B
Noteholders pursuant to this Indenture Supplement.
(c) On each Payment Date, the Issuer shall pay to each Class C
Noteholder of record on the related Record Date such Class C Noteholder's pro
rata share of the amounts on deposit in the Distribution Account that are
allocated and available on such Payment Date and as are payable to the Class C
Noteholders pursuant to this Indenture Supplement.
(d) The payments to be made pursuant to this Section 4.5 are subject to
the provisions of Section 7.1 of this Indenture Supplement.
Indenture Supplement
18
(e) All payments to Noteholders hereunder shall be made by (i) check
mailed to each Series [ ] Noteholder (at such Noteholder's address as it appears
in the Note Register), except that for any Series [ ] Notes registered in the
name of the nominee of a Clearing Agency, such payment shall be made by wire
transfer of immediately available funds and (ii) except as provided in Section
2.7(b) of the Indenture, without presentation or surrender of any Series [ ]
Note or the making of any notation thereon.
SECTION 4.6. Investor Charge-Offs. On each Determination Date, the Issuer
shall calculate the Investor Default Amount for the preceding Monthly Period.
If, on any Transfer Date, the sum of the Investor Default Amount for the
preceding Monthly Period exceeds the amount of Available Non-Principal
Collections allocated with respect thereto pursuant to Section 4.4(a)(vi) with
respect to such Transfer Date and the amount on deposit in the Reserve Account
on such Transfer Date, the Collateral Amount will be reduced (but not below
zero) by the amount of such excess (such reduction, an "Investor Charge-Off").
SECTION 4.7. Reallocated Principal Collections. On each Transfer Date, the
Issuer shall apply Reallocated Principal Collections with respect to that
Transfer Date to fund any deficiency pursuant to and in the priority set forth
in Sections 4.4(a)(i) through (v). On each Transfer Date, the Collateral Amount
shall be reduced by the amount of Reallocated Principal Collections for such
Transfer Date.
SECTION 4.8. Excess Non-Principal Collections. Series [ ] shall be an
Excess Allocation Series with respect to Group One only. Subject to Section 8.6
of the Indenture, Excess Non-Principal Collections with respect to the Excess
Allocation Series in Group One for any Transfer Date will be allocated to Series
[ ] in an amount equal to the product of (x) the aggregate amount of Excess
Non-Principal Collections with respect to all the Excess Allocation Series in
Group One for the related Payment Date and (y) a fraction, the numerator of
which is the Non-Principal Shortfall for Series [ ] for such Payment Date and
the denominator of which is the aggregate amount of Non-Principal Shortfalls for
all the Excess Allocation Series in Group One for such Payment Date. The
"Non-Principal Shortfall" for Series [ ] for any Payment Date will be equal to
the excess, if any, of (a) the full amount required to be paid, without
duplication, pursuant to Sections 4.4(a)(i) through (viii) on such Payment Date
over (b) the Available Non-Principal Collections with respect to such Payment
Date (excluding any portion thereof attributable to Excess Non-Principal
Collections).
SECTION 4.9. Shared Principal Collections. Subject to Section 8.5 of the
Indenture, Shared Principal Collections allocable to Series [ ] on any Transfer
Date will be equal to the product of (x) the aggregate amount of Shared
Principal Collections with respect to all Principal Sharing Series for such
Transfer Date and (y) a fraction, the numerator of which is the Principal
Shortfall for Series [ ] for such Transfer Date and the denominator of which is
the aggregate amount of Principal Shortfalls for all the Series which are
Principal Sharing Series for such Transfer Date. The "Principal Shortfall" for
Series [ ] will be equal to (a) for any Transfer Date prior to the Transfer Date
relating to the Expected Principal Payment Date, zero, and (b) for any Transfer
Date relating to any Payment Date on or after the Expected Principal Payment
Date, the Note Principal Balance.
Indenture Supplement
19
SECTION 4.10. [Reserve Account.
(a) On each Transfer Date, if the aggregate amount of Available
Non-Principal Collections is less than the aggregate amount required to be paid
or deposited pursuant to clauses (i) through (v) of Section 4.4(a), the Issuer
shall withdraw from the Reserve Account the amount of such deficiency up to the
Available Reserve Account Amount and shall apply such amount in accordance with
such clauses of Section 4.4(a).
(b) On any day following the occurrence of an Event of Default with
respect to Series [ ] that has resulted in the acceleration of the Series [ ]
Notes, the Issuer shall withdraw from the Reserve Account the Available Reserve
Account Amount and deposit such amount in the Distribution Account for payment
to the Series [ ] Noteholders to fund any shortfalls in amounts owed to the
Series [ ] Noteholders.
(c) If on any Transfer Date, after giving effect to all withdrawals from
the Reserve Account, the Available Reserve Account Amount is less than the
Required Reserve Account Amount then in effect, Available Non-Principal
Collections shall be deposited into the Reserve Account pursuant to Section
4.4(a)(viii) up to the amount of the Reserve Account Deficiency.
(d) If, after giving effect to all deposits to and withdrawals from the
Reserve Account with respect to any Transfer Date, the amount on deposit in the
Reserve Account exceeds the Required Reserve Account Amount, the Issuer shall
withdraw an amount equal to such excess from the Reserve Account and distribute
such amount to the Transferor. On the date on which the Note Principal Balance
has been paid in full, after making any payments to the Series [ ] Noteholders
required pursuant to Sections 4.10(a), (b) and (c), the Issuer shall withdraw
from the Reserve Account all amounts then remaining in the Reserve Account and
pay such amounts to the holders of the Transferor Interest.]
SECTION 4.11. Investment of Amounts on Deposit in Series Accounts.
(a) To the extent there are uninvested amounts deposited in the Series
Accounts, the Issuer shall cause such amounts to be invested in Permitted
Investments selected by the Issuer that mature no later than the following
Transfer Date.
(b) On each Transfer Date, the Investment Earnings, if any, accrued
since the preceding Transfer Date on funds on deposit in the Reserve Account
shall be treated as Available Non-Principal Collections and paid or deposited in
accordance with Section 4.4(a). Subject to the foregoing, for purposes of
determining the availability of funds or the balance in the Reserve Account for
any reason under this Indenture Supplement, all Investment Earnings shall be
deemed not to be available or on deposit.
SECTION 4.12. Controlled Accumulation Period. The Controlled Accumulation
Period is scheduled to commence at the beginning of business on [______ __,
200_]; [provided, that if the Controlled Accumulation Period Length (determined
as described below) on any Determination Date on or after the [_______ 200_]
Determination Date is less than or more than the number of months in the
scheduled Controlled Accumulation Period, upon written notice to the Indenture
Trustee, with a copy to each Rating Agency, the Issuer shall either postpone or
accelerate, as applicable, the date on which the Controlled Accumulation Period
actually
Indenture Supplement
20
commences, so that as a result, the number of Monthly Periods in the Controlled
Accumulation Period will equal the Controlled Accumulation Period Length;
provided, that the length of the Controlled Accumulation Period will not be less
than one (1) month]. The "Controlled Accumulation Period Length" will mean a
number of whole months such that the amount available for payment of principal
on the Notes on the Expected Principal Payment Date is expected to equal or
exceed the Note Principal Balance, assuming for this purpose that (1) the
payment rate with respect to Principal Collections remains constant at the
lowest level of such payment rate during the twelve (12) preceding Monthly
Periods, (2) the total amount of Principal Receivables in the Trust (and the
principal amount on deposit in the Excess Funding Account, if any) remains
constant at the level on such date of determination, (3) no Early Amortization
Event with respect to any Series will subsequently occur and (4) no additional
Series (other than any Series being issued on such date of determination) will
be subsequently issued. Any notice by Issuer modifying the commencement of the
Controlled Accumulation Period pursuant to this Section 4.12 shall specify (i)
the Controlled Accumulation Period Length, (ii) the commencement date of the
Controlled Accumulation Period and (iii) the Controlled Accumulation Amount with
respect to each Monthly Period during the Controlled Accumulation Period.
SECTION 4.13. [Determination of LIBOR].
(a) [On each LIBOR Determination Date in respect of an Interest Period,
the Indenture Trustee shall determine LIBOR on the basis of the rate per annum
displayed in the Bloomberg Financial Markets system as the composite offered
rate for London interbank deposits for a one-month period, as of 11:00 a.m.,
London time, on that date. If that rate does not appear on that display page,
LIBOR for that Interest Period will be the rate per annum shown on page 3750 of
the Bridge Telerate Services Report screen or any successor page as the
composite offered rate for London interbank deposits for a one-month period, as
shown under the heading "USD" as of 11:00 a.m., London time, on the LIBOR
Determination Date. If no rate is shown as described in the preceding two
sentences, LIBOR for that Interest Period will be the rate per annum based on
the rates at which U.S. dollar deposits for a one-month period are displayed on
page "LIBOR" of the Reuters Monitor Money Rates Service or such other page as
may replace the LIBOR page on that service for the purpose of displaying London
interbank offered rates of major banks as of 11:00 a.m., London time, on the
LIBOR Determination Date; provided, that if at least two rates appear on that
page, the rate will be the arithmetic mean of the displayed rates and if fewer
than two rates are displayed, or if no rate is relevant, the rate for that
Interest Period shall be determined on the basis of the rates at which deposits
in United States dollars are offered by the Reference Banks at approximately
11:00 a.m., London time, on that day to prime banks in the London interbank
market for a one-month period. The Indenture Trustee shall request the principal
London office of each of the Reference Banks to provide a quotation of its rate.
If at least two (2) such quotations are provided, the rate for that Interest
Period shall be the arithmetic mean of all quotations provided. If fewer than
two (2) quotations are provided as requested, the rate for that Interest Period
will be the arithmetic mean of the rates quoted by major banks in New York City,
selected by the Master Servicer, at approximately 11:00 a.m., New York City
time, on that day for loans in United States dollars to leading European banks
for a one-month period.]
Indenture Supplement
21
(b) The Class A Note Interest Rate, Class B Note Interest Rate and Class
C Note Interest Rate applicable to the then current and the immediately
preceding Interest Periods may be obtained by telephoning the Indenture Trustee
at its corporate trust office at [(___) ___-____] or such other telephone number
as shall be designated by the Indenture Trustee for such purpose by prior
written notice by the Indenture Trustee to each Series [ ] Noteholder from time
to time.
(c) On each LIBOR Determination Date, the Indenture Trustee shall send
to the Issuer, by facsimile transmission, notification of LIBOR for the
following Interest Period.]
ARTICLE V
DELIVERY OF SERIES [ ] NOTES;
REPORTS TO SERIES [ ] NOTEHOLDERS
SECTION 5.1. Delivery and Payment for the Series [ ] Notes.
The Issuer shall execute and issue, and the Indenture Trustee shall
authenticate, the Series [ ] Notes in accordance with Section 2.2 of the
Indenture. The Indenture Trustee shall deliver the Series [ ] Notes to or upon
Issuer Order when so authenticated.
SECTION 5.2. Reports and Statements to Series [ ] Noteholders.
(a) Not later than the second Business Day preceding each Payment Date,
the Issuer shall deliver, or cause the Master Servicer to deliver to the
Trustee, the Indenture Trustee, each Series [ ] Noteholder and each Rating
Agency a statement substantially in the form of Exhibit B prepared by the Master
Servicer; provided, that the Issuer may amend the form of Exhibit B from time to
time with the prior written consent of the Indenture Trustee.
(b) On or before January 31 of each calendar year, beginning with
January 31, 2005, the [Trustee, on behalf of the] Issuer, shall furnish or cause
to be furnished to each Person who at any time during the preceding calendar
year was a Series [ ] Noteholder the information for the preceding calendar
year, or the applicable portion thereof during which the Person was a
Noteholder, as is required to be provided by an issuer of indebtedness under the
Code to the holders of the Issuer's indebtedness and such other customary
information as is necessary to enable such Noteholder to prepare its federal
income tax returns. Notwithstanding anything to the contrary contained in this
Agreement, [the Trustee, on behalf of] the Issuer, shall, to the extent required
by applicable law, from time to time furnish to the appropriate Persons, at
least five (5) Business Days prior to the end of the period required by
applicable law, the information required to complete a Form 1099-INT.
ARTICLE VI
SERIES [ ] EARLY AMORTIZATION EVENTS
SECTION 6.1. Series [ ] Early Amortization Events. If any one of the
following events shall occur with respect to the Series [ ] Notes:
(a) (i) failure on the part of Transferor or the Issuer to make any
payment or deposit required to be made by it by the terms of the Second Tier
Agreement, the Indenture or this
Indenture Supplement
22
Indenture Supplement on or before the date occurring five (5) Business Days
after the date such payment or deposit is required to be made therein or herein
or (ii) failure of the Issuer or the Transferor duly to observe or perform in
any material respect any of their respective covenants or agreements set forth
in the Second Tier Agreement, the Indenture or this Indenture Supplement
(excluding matters addressed by clause (i) above), which failure has a material
adverse effect on the Series [ ] Noteholders and which continues unremedied for
a period of sixty (60) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the Issuer
or the Transferor, as applicable, by the Indenture Trustee, or to the Issuer or
the Transferor, as applicable, and the Indenture Trustee by any Noteholder of
the Series [ ] Notes;
(b) any representation or warranty made by the Issuer or the Transferor
in the Second Tier Agreement, the Indenture or this Indenture Supplement or any
information contained in an account schedule required to be delivered by it
pursuant to [Section 2.1 or Section 2.6(c)] of the Second Tier Agreement shall
prove to have been incorrect in any material respect when made or when
delivered, which continues to be incorrect in any material respect for a period
of sixty (60) days after the date on which written notice of the same, requiring
the same to be remedied, shall have been given to the Issuer or Transferor, as
applicable, by the Indenture Trustee, or to Transferor or the Issuer, as
applicable, and the Indenture Trustee by any Noteholder of the Series [ ] Notes
and as a result of which the interests of the Series [ ] Noteholders are
materially and adversely affected for such period; provided, however, that a
Series [ ] Early Amortization Event pursuant to this Section 6.1(b) shall not be
deemed to have occurred hereunder if Transferor has accepted reassignment of the
related Transferred Receivable, or all of such Transferred Receivables, if
applicable, during such period in accordance with the provisions of the Second
Tier Agreement;
(c) a failure by Transferor under the Second Tier Agreement to convey
Transferred Receivables in Additional Accounts to the Issuer when it is required
to convey such Transferred Receivables pursuant to [Section 2.6(a)] of the
Second Tier Agreement;
(d) any material Servicer Default or any Indenture Servicer Default
shall occur;
(e) (i) on any Determination Date occurring in the months of [ ] through
[ ], the average of the Monthly Payment Rates for the three (3) preceding
Monthly Periods is less than [ ] percent ([ ]%) or (ii) on any Determination
Date occurring in the months of [ ] through [ ], the average of the Monthly
Payment Rates for the three (3) preceding Monthly Periods is less than [ ]
percent ([ ]%);
(f) the Note Principal Balance shall not be paid in full on the Expected
Principal Payment Date;
(g) without limiting the foregoing, the occurrence of an Event of
Default with respect to Series [ ] and acceleration of the maturity of the
Series [ ] Notes pursuant to Section 5.3 of the Indenture; [or]
Indenture Supplement
23
(h) [the amount on deposit in the Reserve Account is less than the
Required Reserve Account Amount on any [ ] ([ ]) consecutive Payment Dates after
giving effect to all payments and deposits on such Payment Dates];
then, in the case of any event described in subsection (a), (b) or (d), after
the applicable grace period, if any, set forth in such subparagraphs, either the
Indenture Trustee or the Noteholders of Series [ ] Notes evidencing more than
fifty percent (50%) of the aggregate unpaid principal amount of Series [ ] Notes
by notice then given in writing to the Issuer (and to the Indenture Trustee if
given by the Series [ ] Noteholders) may declare that a "Series Early
Amortization Event" with respect to Series [ ] (a "Series [ ] Early Amortization
Event") has occurred as of the date of such notice, and, in the case of any
event described in subsection (c), (e), (f), (g) or (h) a Series [ ] Early
Amortization Event shall occur without any notice or other action on the part of
the Indenture Trustee or the Series [ ] Noteholders immediately upon the
occurrence of such event.
ARTICLE VII
REDEMPTION OF SERIES [ ] NOTES; FINAL DISTRIBUTIONS; SERIES
TERMINATION
SECTION 7.1. Optional Redemption of Series [ ] Notes; Final Distributions.
(a) On any day occurring on or after the date on which the outstanding
principal balance of the Series [ ] Notes is reduced to ten percent (10%) or
less of the highest Note Principal Balance on or at any time after the Closing
Date, Transferor has the option pursuant to the Trust Agreement to reduce the
Collateral Amount to zero by paying a purchase price equal to the greater of (x)
the Collateral Amount plus the Allocation Percentage of outstanding
Non-Principal Receivables, and (y) (i) if such day is a Payment Date, the
Reassignment Amount for such Payment Date or (ii) if such day is not a Payment
Date, the Reassignment Amount for the Payment Date following such day. If
Transferor exercises such option, Issuer will apply such purchase price to repay
the Series [ ] Notes in full as specified below.
(b) In order to exercise such option, Issuer shall give the Indenture
Trustee at least thirty (30) days' prior written notice of the date on which
Transferor intends to exercise such optional redemption. Not later than 12:00
noon, New York City time, on the day of such redemption, Issuer shall deposit
into the Collection Account in immediately available funds the Reassignment
Amount. Such redemption option is subject to payment in full of the Reassignment
Amount. Following such deposit into the Collection Account in accordance with
the foregoing, the Collateral Amount for Series [ ] shall be reduced to zero and
the Series [ ] Noteholders shall have no further security interest or other
interest in the Transferred Receivables. The Reassignment Amount shall be paid
as set forth in Section 7.1(d).
(c) The amount to be paid by the Issuer with respect to Series [ ] in
connection with a repurchase of the Series [ ] Notes pursuant to Section 10.1 of
the Trust Agreement shall not be less than the Reassignment Amount for the
Payment Date of such repurchase.
(d) With respect to the Reassignment Amount deposited into the
Collection Account pursuant to this Section 7.1 or the proceeds of any sale of
Transferred Receivables pursuant to
Indenture Supplement
24
Section 5.3 of the Indenture with respect to Series [ ], the Indenture Trustee
shall, in accordance with an Issuer Order, not later than 12:00 noon, New York
City time, on the related Payment Date, make payments of the following amounts
(in the priority set forth below and, in each case, after giving effect to any
deposits and payments otherwise to be made on such date) in immediately
available funds: (i) (x) the Class A Note Principal Balance on such Payment Date
will be paid to the Class A Noteholders and (y) an amount equal to the sum of
(A) Class A Monthly Interest due and payable on such Payment Date or any prior
Payment Date, (B) any Class A Deficiency Amount for such Payment Date and (C)
the amount of Class A Additional Interest, if any, for such Payment Date and,
without duplication, any Class A Additional Interest previously due but not paid
to the Class A Noteholders on any prior Payment Date, will be paid to the Class
A Noteholders, (ii) (x) the Class B Note Principal Balance on such Payment Date
will be paid to the Class B Noteholders and (y) an amount equal to the sum of
(A) Class B Monthly Interest due and payable on such Payment Date or any prior
Payment Date, (B) any Class B Deficiency Amount for such Payment Date and (C)
the amount of Class B Additional Interest, if any, for such Payment Date and,
without duplication, any Class B Additional Interest previously due but not paid
to the Class B Noteholders on any prior Payment Date, will be paid to the Class
B Noteholders, (iii) (x) the Class C Note Principal Balance on such Payment Date
will be paid to the Class C Noteholders and (y) an amount equal to the sum of
(A) Class C Monthly Interest due and payable on such Payment Date or any prior
Payment Date, (B) any Class C Deficiency Amount for such Payment Date, and (C)
the amount of Class C Additional Interest, if any, for such Payment Date and,
without duplication, any Class C Additional Interest previously due but not paid
to the Class C Noteholders on any prior Payment Date will be paid to the Class C
Noteholders, and (iv) any excess shall be released to the Issuer.
SECTION 7.2. Series Termination.
On the Series [ ] Final Maturity Date, the unpaid principal amount of the
Series [ ] Notes shall be due and payable.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1. Ratification of Indenture; Amendments. As supplemented by
this Indenture Supplement, the Indenture is in all respects ratified and
confirmed and the Indenture as so supplemented by this Indenture Supplement
shall be read, taken and construed as one and the same instrument. This
Indenture Supplement may be amended only in accordance with the terms of Section
9.1 or 9.2 of the Indenture. For purposes of the application of Section 9.2 of
the Indenture to any amendment of this Indenture Supplement, the Series [ ]
Noteholders shall be the only Noteholders whose vote shall be required.
SECTION 8.2. Form of Delivery of the Series [ ] Notes. The Class A Notes,
the Class B Notes and the Class C Notes shall be Book-Entry Notes and shall be
delivered as provided in Sections 2.1 and 2.2 of the Indenture.
SECTION 8.3. Counterparts. This Indenture Supplement may be executed in
two or more counterparts, and by different parties on separate counterparts,
each of which shall be an original, but all of which shall constitute one and
the same instrument.
Indenture Supplement
25
SECTION 8.4. GOVERNING LAW.
(a) THIS INDENTURE SUPPLEMENT AND THE OBLIGATIONS ARISING HEREUNDER
SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF
THE GENERAL OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW
PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS INDENTURE SUPPLEMENT OR TO ANY MATTER ARISING OUT OF OR
RELATING TO THIS INDENTURE SUPPLEMENT; 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 INDENTURE SUPPLEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE
THE INDENTURE TRUSTEE FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY
OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
SERIES [ ] NOTES, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE
INDENTURE TRUSTEE. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY
HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED
IN ACCORDANCE WITH SECTION 10.4 OF THE INDENTURE 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.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS
ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON
AND THE PARTIES
Indenture Supplement
26
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 INDENTURE SUPPLEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 8.5. Limitation of Liability. Notwithstanding any other provision
herein or elsewhere, this Agreement has been executed and delivered by The Bank
of New York (Delaware), not in its individual capacity, but solely in its
capacity as Trustee of the Issuer, in no event shall The Bank of New York
(Delaware) in its individual capacity have any liability in respect of the
representations, warranties, or obligations of the Issuer hereunder or under any
other document, as to all of which recourse shall be had solely to the assets of
the Trust, and for all purposes of this Agreement and each other document, the
Trustee (as such or in its individual capacity) shall be subject to, and
entitled to the benefits of, the terms and provisions of the Trust Agreement.
SECTION 8.6. Rights of the Indenture Trustee. The Indenture Trustee shall
have herein the same rights, protections, indemnities and immunities as
specified in the Master Indenture.
SECTION 8.7. No Petition. Each holder of a Note covenants and agrees that
(i) it will not at any time directly or indirectly institute or cause to be
instituted against the Issuer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceeding under any federal state
bankruptcy law unless holders of not less than sixty-six and two-thirds percent
(66 2/3%) of the Outstanding Principal Balance of each Class of each Series have
approved such filing; and (ii) it will not at any time directly or indirectly
institute or cause to be instituted against the Trust or CDF Funding, Inc. any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other proceeding under any federal or state bankruptcy law in connection with
any obligation relating to the Notes, the Indenture or any of the Related
Documents.
[SIGNATURE PAGES FOLLOW]
Indenture Supplement
27
IN WITNESS WHEREOF, the undersigned have caused this Indenture Supplement
to be duly executed and delivered on the day and year first above written.
GE DEALER FLOORPLAN MASTER NOTE
TRUST, as Issuer
By: THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity, but as
Trustee on behalf of Issuer
By:________________________________
Name: __________________________
Title: _________________________
Indenture Supplement
S-1
WILMINGTON TRUST COMPANY, as
Indenture Trustee
By:________________________________
Name: __________________________
Title: _________________________
Indenture Supplement
S-2
EXHIBIT A-1
FORM OF CLASS A SERIES [ ] [FLOATING RATE] ASSET BACKED NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES
THAT (I) IT WILL NOT AT ANY TIME DIRECTLY OR INDIRECTLY INSTITUTE OR CAUSE TO BE
INSTITUTED AGAINST THE ISSUER ANY BANKRUPTCY, REORGANIZATION, ARRANGEMENT,
INSOLVENCY OR LIQUIDATION PROCEEDING OR OTHER PROCEEDING UNDER ANY FEDERAL OR
STATE BANKRUPTCY LAW UNLESS NOTEHOLDERS OF NOT LESS THAN SIXTY-SIX AND
TWO-THIRDS PERCENT (66 2/3%) OF THE OUTSTANDING PRINCIPAL BALANCE OF EACH CLASS
OF EACH SERIES HAVE APPROVED SUCH FILING; AND (II) IT WILL NOT AT ANY TIME
DIRECTLY OR INDIRECTLY INSTITUTE OR CAUSE TO BE INSTITUTED AGAINST GE DEALER
FLOORPLAN MASTER NOTE TRUST OR CDF FUNDING, INC. ANY BANKRUPTCY, REORGANIZATION,
ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDING OR OTHER PROCEEDING UNDER ANY
FEDERAL OR STATE BANKRUPTCY LAW IN CONNECTION WITH ANY OBLIGATION RELATING TO
THE NOTES, THE INDENTURE OR ANY OF THE RELATED DOCUMENTS.
THE HOLDER OF THIS CLASS A NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH
HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS A NOTES AS
INDEBTEDNESS OF THE ISSUER FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND
FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY,
INCOME.
Indenture Supplement
Exhibit A-1 (Page 1)
REGISTERED $______________________________________
No. R- CUSIP NO.
GE DEALER FLOORPLAN MASTER NOTE TRUST
SERIES [ ]
CLASS A SERIES [ ] [FLOATING RATE] ASSET BACKED NOTE
GE Dealer Floorplan Master Note Trust (herein referred to as the "Issuer"
or the "Trust"), a Delaware statutory trust governed by an Amended and Restated
Trust Agreement dated as of [ ], 2004, for value received, hereby promises to
pay to Cede & Co., or registered assigns, subject to the following provisions,
the principal sum of ___________ DOLLARS ($[ ]), or such greater or lesser
amount as determined in accordance with the Indenture, on the [____________ __]
200[_] Payment Date, except as otherwise provided below or in the Indenture. The
Issuer will pay interest on the unpaid principal amount of this Note at the
Class A Note Interest Rate on each Payment Date until the Series Maturity Date
(which is the earlier to occur of (a) the Payment Date on which the Note
Principal Balance is paid in full, (b) the date on which the Collateral Amount
is reduced to zero and (c) the [____________ __], 200[_] Payment Date). Interest
on this Note will accrue for each Payment Date from and including the most
recent Payment Date on which interest has been paid to but excluding such
Payment Date or, for the initial Payment Date, from and including the Closing
Date to but excluding such Payment Date. Interest will be computed on the basis
of a [360-day] year and the [actual] number of days elapsed. Principal of this
Note shall be paid in the manner specified in the Indenture Supplement referred
to on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Indenture Trustee, by manual signature, this Note shall not be
entitled to any benefit under the Indenture or the Indenture Supplement referred
to on the reverse hereof, or be valid for any purpose.
Indenture Supplement
Exhibit A-1 (Page 2)
IN WITNESS WHEREOF, the Issuer has caused this Class A Note to be duly executed.
GE DEALER FLOORPLAN MASTER NOTE
TRUST, as Issuer
By: THE BANK OF NEW YORK
(DELAWARE), not in its individual capacity
but solely as Trustee on behalf of Issuer
By:________________________________________
Name: __________________________________
Title: _________________________________
Dated:____________
Indenture Supplement
Exhibit A-1 (Page 3)
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Notes described in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
as Indenture Trustee
By:________________________________________
Authorized Signatory
Dated:____________
Indenture Supplement
Exhibit A-1 (Page 4)
GE DEALER FLOORPLAN MASTER NOTE TRUST
SERIES [ ]
CLASS A SERIES [ ] [FLOATING RATE] ASSET BACKED NOTE
This Class A Note is one of a duly authorized issue of Notes of the
Issuer, designated as GE Dealer Floorplan Master Note Trust, Series [ ] (the
"Series [ ] Notes"), issued under a Master Indenture dated as of [ ], 2004 (the
"Master Indenture"), between the Issuer and Wilmington Trust Company, as
indenture trustee (the "Indenture Trustee"), as supplemented by the Indenture
Supplement dated as of [ ], 200[ ] (the "Indenture Supplement"), and
representing the right to receive certain payments from the Issuer. The term
"Indenture," unless the context otherwise requires, refers to the Master
Indenture as supplemented by the Indenture Supplement. The Notes are subject to
all of the terms of the Indenture. All terms used in this Note that are defined
in the Indenture shall have the meanings assigned to them in or pursuant to the
Indenture. In the event of any conflict or inconsistency between the Indenture
and this Note, the Indenture shall control.
The Class B Notes and the Class C Notes will also be issued under the
Indenture.
The Noteholder, by its acceptance of this Note, agrees that it will look
solely to the property of the Issuer allocated to the payment of this Note for
payment hereunder and that neither the Trustee nor the Indenture Trustee is
liable to the Noteholders for any amount payable under the Notes or the
Indenture or, except in the case of the Indenture Trustee as expressly provided
in the Indenture, subject to any liability under the Indenture.
This Note does not purport to summarize the Indenture and reference is
made to the Indenture for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Indenture Trustee.
THIS CLASS A NOTE DOES NOT REPRESENT AN OBLIGATION OF CDF FUNDING, INC.,
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST, GE COMMERCIAL
DISTRIBUTION FINANCE CORPORATION, TRANSAMERICA COMMERCIAL FINANCE CORPORATION,
OR ANY OF THEIR AFFILIATES (OTHER THAN THE ISSUER), AND IS NOT INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
The Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee shall treat the person in whose name this Class A Note is
registered as the owner hereof for all purposes, and neither the Issuer, the
Indenture Trustee nor any agent of the Issuer or the Indenture Trustee shall be
affected by notice to the contrary.
THIS CLASS A NOTE 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
Indenture Supplement
Exhibit A-1 (Page 5)
(INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW, BUT
WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS THEREOF) AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
Indenture Supplement
Exhibit A-1 (Page 6)
ASSIGNMENT
Social Security or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto __________ (name and address of assignee) the within certificate and all
rights thereunder, and hereby irrevocably constitutes and appoints ___________
attorney, to transfer said certificate on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:___________________________ ________________________________ **
Signature Guaranteed:
-----------------------
** The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
Indenture Supplement
Exhibit A-1 (Page 7)
EXHIBIT A-2
FORM OF CLASS B SERIES [ ] [FLOATING RATE] ASSET BACKED NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES THAT
(I) IT WILL NOT AT ANY TIME DIRECTLY OR INDIRECTLY INSTITUTE OR CAUSE TO BE
INSTITUTED AGAINST THE ISSUER ANY BANKRUPTCY, REORGANIZATION, ARRANGEMENT,
INSOLVENCY OR LIQUIDATION PROCEEDING OR OTHER PROCEEDING UNDER ANY FEDERAL OR
STATE BANKRUPTCY LAW UNLESS NOTEHOLDERS OF NOT LESS THAN SIXTY-SIX AND
TWO-THIRDS PERCENT (66 2/3%) OF THE OUTSTANDING PRINCIPAL BALANCE OF EACH CLASS
OF EACH SERIES HAVE APPROVED SUCH FILING; AND (II) IT WILL NOT AT ANY TIME
DIRECTLY OR INDIRECTLY INSTITUTE OR CAUSE TO BE INSTITUTED AGAINST GE DEALER
FLOORPLAN MASTER NOTE TRUST OR CDF FUNDING, INC. ANY BANKRUPTCY, REORGANIZATION,
ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDING OR OTHER PROCEEDING UNDER ANY
FEDERAL OR STATE BANKRUPTCY LAW IN CONNECTION WITH ANY OBLIGATION RELATING TO
THE NOTES, THE INDENTURE OR ANY OF THE RELATED DOCUMENTS.
THE HOLDER OF THIS CLASS B NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH
HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS B NOTES AS
INDEBTEDNESS OF THE ISSUER FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND
FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY,
INCOME.
Indenture Supplement
Exhibit A-2 (Page 1)
REGISTERED $__________________________________________
No. R- CUSIP NO.
GE DEALER FLOORPLAN MASTER NOTE TRUST
SERIES [ ]
CLASS B SERIES [ ] [FLOATING RATE] ASSET BACKED NOTE
GE Dealer Floorplan Master Note Trust (herein referred to as the "Issuer"
or the "Trust"), a Delaware statutory trust governed by an Amended and Restated
Trust Agreement dated as of [ ], 2004, for value received, hereby promises to
pay to Cede & Co., or registered assigns, subject to the following provisions,
the principal sum of ____________ DOLLARS ($[ ]), or such greater or lesser
amount as determined in accordance with the Indenture, on the [____________ __]
200[_] Payment Date, except as otherwise provided below or in the Indenture. The
Issuer will pay interest on the unpaid principal amount of this Note at the
Class B Note Interest Rate on each Payment Date until the Series Maturity Date
(which is the earlier to occur of (a) the Payment Date on which the Note
Principal Balance is paid in full, (b) the date on which the Collateral Amount
is reduced to zero and (c) the [____________ __], 200[_] Payment Date). Interest
on this Note will accrue for each Payment Date from and including the most
recent Payment Date on which interest has been paid to but excluding such
Payment Date or, for the initial Payment Date, from and including the Closing
Date to but excluding such Payment Date. Interest will be computed on the basis
of a [360-day] year and the [actual] number of days elapsed. Principal of this
Note shall be paid in the manner specified in the Indenture Supplement referred
to on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Indenture Trustee, by manual signature, this Note shall not be
entitled to any benefit under the Indenture or the Indenture Supplement referred
to on the reverse hereof, or be valid for any purpose.
Indenture Supplement
Exhibit A-2 (Page 2)
IN WITNESS WHEREOF, the Issuer has caused this Class B Note to be duly executed.
GE DEALER FLOORPLAN MASTER NOTE
TRUST, as Issuer
By: THE BANK OF NEW YORK
(DELAWARE), not in its individual capacity
but solely as Trustee on behalf of Issuer
By:________________________________________
Name: __________________________________
Title: _________________________________
Dated:____________
Indenture Supplement
Exhibit A-2 (Page 3)
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class B Notes described in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
as Indenture Trustee
By:____________________________________
Authorized Signatory
Dated:____________
Indenture Supplement
Exhibit A-2 (Page 4)
GE DEALER FLOORPLAN MASTER NOTE TRUST
SERIES [ ]
CLASS B SERIES [ ] [FLOATING RATE] ASSET BACKED NOTE
This Class B Note is one of a duly authorized issue of Notes of the
Issuer, designated as GE Dealer Floorplan Master Note Trust, Series [ ] (the
"Series [ ] Notes"), issued under a Master Indenture dated as of [ ], 2004 (the
"Master Indenture"), between the Issuer and Wilmington Trust Company, as
indenture trustee (the "Indenture Trustee"), as supplemented by the Indenture
Supplement dated as of [ ], 200[ ] (the "Indenture Supplement"), and
representing the right to receive certain payments from the Issuer. The term
"Indenture," unless the context otherwise requires, refers to the Master
Indenture as supplemented by the Indenture Supplement. The Notes are subject to
all of the terms of the Indenture. All terms used in this Note that are defined
in the Indenture shall have the meanings assigned to them in or pursuant to the
Indenture. In the event of any conflict or inconsistency between the Indenture
and this Note, the Indenture shall control.
The Class A Notes and the Class C Notes will also be issued under the
Indenture.
The Noteholder, by its acceptance of this Note, agrees that it will look
solely to the property of the Issuer allocated to the payment of this Note for
payment hereunder and that neither the Trustee nor the Indenture Trustee is
liable to the Noteholders for any amount payable under the Notes or the
Indenture or, except in the case of the Indenture Trustee as expressly provided
in the Indenture, subject to any liability under the Indenture.
This Note does not purport to summarize the Indenture and reference is
made to the Indenture for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Indenture Trustee.
THIS CLASS B NOTE DOES NOT REPRESENT AN OBLIGATION OF CDF FUNDING, INC.,
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST, GE COMMERCIAL
DISTRIBUTION FINANCE CORPORATION, TRANSAMERICA COMMERCIAL FINANCE CORPORATION,
OR ANY OF THEIR AFFILIATES (OTHER THAN THE ISSUER), AND IS NOT INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
The Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee shall treat the person in whose name this Class B Note is
registered as the owner hereof for all purposes, and neither the Issuer, the
Indenture Trustee nor any agent of the Issuer or the Indenture Trustee shall be
affected by notice to the contrary.
THIS CLASS B NOTE 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
Indenture Supplement
Exhibit A-2 (Page 5)
(INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW, BUT
WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS THEREOF) AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
Indenture Supplement
Exhibit A-2 (Page 6)
ASSIGNMENT
Social Security or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _____________ (name and address of assignee) the within certificate and all
rights thereunder, and hereby irrevocably constitutes and appoints _____________
attorney, to transfer said certificate on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:_______________________________ ___________________________________**
Signature Guaranteed:
-----------------------
** The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
Indenture Supplement
Exhibit A-2 (Page 7)
EXHIBIT A-3
FORM OF CLASS C SERIES [ ] [FLOATING RATE] ASSET BACKED NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES THAT
(I) IT WILL NOT AT ANY TIME DIRECTLY OR INDIRECTLY INSTITUTE OR CAUSE TO BE
INSTITUTED AGAINST THE ISSUER ANY BANKRUPTCY, REORGANIZATION, ARRANGEMENT,
INSOLVENCY OR LIQUIDATION PROCEEDING OR OTHER PROCEEDING UNDER ANY FEDERAL OR
STATE BANKRUPTCY LAW UNLESS NOTEHOLDERS OF NOT LESS THAN SIXTY-SIX AND
TWO-THIRDS PERCENT (66 2/3%) OF THE OUTSTANDING PRINCIPAL BALANCE OF EACH CLASS
OF EACH SERIES HAVE APPROVED SUCH FILING; AND (II) IT WILL NOT AT ANY TIME
DIRECTLY OR INDIRECTLY INSTITUTE OR CAUSE TO BE INSTITUTED AGAINST GE DEALER
FLOORPLAN MASTER NOTE TRUST OR CDF FUNDING, INC. ANY BANKRUPTCY, REORGANIZATION,
ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDING OR OTHER PROCEEDING UNDER ANY
FEDERAL OR STATE BANKRUPTCY LAW IN CONNECTION WITH ANY OBLIGATION RELATING TO
THE NOTES, THE INDENTURE OR ANY OF THE RELATED DOCUMENTS.
THE HOLDER OF THIS CLASS C NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH
HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS C NOTES AS
INDEBTEDNESS OF THE ISSUER FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND
FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY,
INCOME.
Indenture Supplement
Exhibit A-3 (Page 1)
REGISTERED $__________________________________________
No. R- CUSIP NO.
GE DEALER FLOORPLAN MASTER NOTE TRUST
SERIES [ ]
CLASS C SERIES [ ] [FLOATING RATE] ASSET BACKED NOTE
GE Dealer Floorplan Master Note Trust (herein referred to as the "Issuer"
or the "Trust"), a Delaware statutory trust governed by an Amended and Restated
Trust Agreement dated as of [ ], 2004, for value received, hereby promises to
pay to Cede & Co., or registered assigns, subject to the following provisions,
the principal sum of ______________ DOLLARS ($[ ]), or such greater or lesser
amount as determined in accordance with the Indenture, on the [____________ __]
200[_] Payment Date, except as otherwise provided below or in the Indenture. The
Issuer will pay interest on the unpaid principal amount of this Note at the
Class C Note Interest Rate on each Payment Date until the Series Maturity Date
(which is the earlier to occur of (a) the Payment Date on which the Note
Principal Balance is paid in full, (b) the date on which the Collateral Amount
is reduced to zero and (c) the [____________ __], 200[_] Payment Date). Interest
on this Note will accrue for each Payment Date from and including the most
recent Payment Date on which interest has been paid to but excluding such
Payment Date or, for the initial Payment Date, from and including the Closing
Date to but excluding such Payment Date. Interest will be computed on the basis
of a [360-day] year and the [actual] number of days elapsed. Principal of this
Note shall be paid in the manner specified in the Indenture Supplement referred
to on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Indenture Trustee, by manual signature, this Note shall not be
entitled to any benefit under the Indenture or the Indenture Supplement referred
to on the reverse hereof, or be valid for any purpose.
Indenture Supplement
Exhibit A-3 (Page 2)
IN WITNESS WHEREOF, the Issuer has caused this Class C Note to be duly executed.
GE DEALER FLOORPLAN MASTER NOTE
TRUST, as Issuer
By: THE BANK OF NEW YORK
(DELAWARE), not in its individual capacity
but solely as Trustee on behalf of Issuer
By:________________________________________
Name: __________________________________
Title: _________________________________
Dated:____________
Indenture Supplement
Exhibit A-3 (Page 3)
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class C Notes described in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
as Indenture Trustee
By:________________________________________
Authorized Signatory
Dated:____________
Indenture Supplement
Exhibit A-3 (Page 4)
GE DEALER FLOORPLAN MASTER NOTE TRUST
SERIES [ ]
CLASS C SERIES [ ] [FLOATING RATE] ASSET BACKED NOTE
This Class C Note is one of a duly authorized issue of Notes of the
Issuer, designated as GE Dealer Floorplan Master Note Trust, Series [ ] (the
"Series [ ] Notes"), issued under a Master Indenture dated as of [ ], 2004 (the
"Master Indenture"), between the Issuer and Wilmington Trust Company, as
indenture trustee (the "Indenture Trustee"), as supplemented by the Indenture
Supplement dated as of [ ], 200[ ] (the "Indenture Supplement"), and
representing the right to receive certain payments from the Issuer. The term
"Indenture," unless the context otherwise requires, refers to the Master
Indenture as supplemented by the Indenture Supplement. The Notes are subject to
all of the terms of the Indenture. All terms used in this Note that are defined
in the Indenture shall have the meanings assigned to them in or pursuant to the
Indenture. In the event of any conflict or inconsistency between the Indenture
and this Note, the Indenture shall control.
The Class A Notes and the Class B Notes will also be issued under the
Indenture.
The Noteholder, by its acceptance of this Note, agrees that it will look
solely to the property of the Issuer allocated to the payment of this Note for
payment hereunder and that neither the Trustee nor the Indenture Trustee is
liable to the Noteholders for any amount payable under the Notes or the
Indenture or, except in the case of the Indenture Trustee as expressly provided
in the Indenture, subject to any liability under the Indenture.
This Note does not purport to summarize the Indenture and reference is
made to the Indenture for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Indenture Trustee.
THIS CLASS C NOTE DOES NOT REPRESENT AN OBLIGATION OF CDF FUNDING, INC.,
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST, GE COMMERCIAL
DISTRIBUTION FINANCE CORPORATION, TRANSAMERICA COMMERCIAL FINANCE CORPORATION,
OR ANY OF THEIR AFFILIATES (OTHER THAN THE ISSUER), AND IS NOT INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
The Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee shall treat the person in whose name this Class C Note is
registered as the owner hereof for all purposes, and neither the Issuer, the
Indenture Trustee nor any agent of the Issuer or the Indenture Trustee shall be
affected by notice to the contrary.
THIS CLASS C NOTE 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
Indenture Supplement
Exhibit A-3 (Page 5)
(INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW, BUT
WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS THEREOF) AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
Indenture Supplement
Exhibit A-3 (Page 6)
ASSIGNMENT
Social Security or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________ (name and address of assignee) the within certificate and all
rights thereunder, and hereby irrevocably constitutes and appoints _____________
attorney, to transfer said certificate on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:_______________________________ ____________________________________**
Signature Guaranteed:
-----------------------
** The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
Indenture Supplement
Exhibit A-3 (Page 7)
EXHIBIT B
Form of Monthly Servicer's Certificate
[to be attached]
Indenture Supplement
Exhibit B (Page 1)
