Exhibit 4.2
GE DEALER FLOORPLAN MASTER NOTE TRUST,
as Issuer,
And
WILMINGTON TRUST COMPANY,
as Indenture Trustee
FORM OF SERIES [_____] INDENTURE SUPPLEMENT
Dated as of [_____]
Indenture Supplement
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS.................................................... 1
SECTION 1.1. Definitions............................................. 1
SECTION 1.2. Incorporation of Terms.................................. 9
ARTICLE II CREATION OF THE SERIES [_____] NOTES.......................... 9
SECTION 2.1. Designation............................................. 9
ARTICLE III [RESERVED]................................................... 9
ARTICLE IV RIGHTS OF SERIES [_____] NOTEHOLDERS AND ALLOCATION AND
APPLICATION OF COLLECTIONS.................................... 10
SECTION 4.1. Determination of Interest and Principal................. 10
SECTION 4.2. Establishment of Accounts............................... 10
SECTION 4.3. Calculations and Series Allocations..................... 11
SECTION 4.4. Application of Available Non-Principal Collections and
Available Principal Collections......................... 13
SECTION 4.5. Payments................................................ 16
SECTION 4.6. Investor Charge-Offs.................................... 17
SECTION 4.7. Reallocated Principal Collections....................... 17
SECTION 4.8. Excess Non-Principal Collections........................ 17
SECTION 4.9. Shared Principal Collections............................ 18
SECTION 4.10. [Reserve Account]....................................... 18
SECTION 4.11. Investment of Amounts on Deposit in Series Accounts..... 19
SECTION 4.12. Controlled Accumulation Period.......................... 19
SECTION 4.13. [Determination of LIBOR]................................ 20
ARTICLE V DELIVERY OF SERIES [_____] NOTES; REPORTS TO SERIES [_____]
NOTEHOLDERS.................................................... 21
SECTION 5.1. Delivery and Payment for the Series [_____] Notes....... 21
SECTION 5.2. Reports and Statements to Series [_____] Noteholders.... 21
ARTICLE VI SERIES [_____] EARLY AMORTIZATION EVENTS...................... 21
SECTION 6.1. Series [_____] Early Amortization Events................ 21
ARTICLE VII REDEMPTION OF SERIES [_____] NOTES; FINAL DISTRIBUTIONS;
SERIES TERMINATION........................................... 23
SECTION 7.1. Optional Redemption of Series [_____] Notes; Final
Distributions........................................... 23
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TABLE OF CONTENTS
(continued)
PAGE
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SECTION 7.2. Series Termination...................................... 24
ARTICLE VIII MISCELLANEOUS PROVISIONS.................................... 24
SECTION 8.1. Ratification of Indenture; Amendments................... 24
SECTION 8.2. Form of Delivery of the Series [_____] Notes............ 24
SECTION 8.3. Counterparts............................................ 24
SECTION 8.4. GOVERNING LAW........................................... 24
SECTION 8.5. Limitation of Liability................................. 26
SECTION 8.6. Rights of the Indenture Trustee......................... 26
SECTION 8.7. No Petition............................................. 26
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
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SERIES [_____] INDENTURE SUPPLEMENT, dated as of [_____] ("Indenture
Supplement"), between GE DEALER FLOORPLAN MASTER NOTE TRUST, a Delaware
statutory trust (herein, the "Issuer" or the "Trust"), and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, 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 August 12, 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:
"Addition Date" is defined in the First Tier Agreement.
"Administration Agreement" means the Administration Agreement, dated as of
August 12, 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.
"Allocation Percentage" means, with respect to any Monthly Period, the
percentage equivalent of a fraction (which shall not exceed one hundred percent
(100%)):
(a) the numerator of which shall be equal to:
(i) for Non-Principal Collections and the Default Amount at all
times and Principal Collections during the Revolving Period, the
Collateral Amount at the end of the last day of the prior Monthly
Period or, in the case of the month during which the Closing Date
occurs, the Closing Date; and
(ii) for Principal Collections during the Controlled Accumulation
Period and the Early Amortization 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 (i) the result of
(x) the Aggregate Principal Receivables minus (y) the sum of the aggregate
amount of each
Dealer Overconcentration, Manufacturer Overconcentration and Product Line
Overconcentration, and (ii) the sum of the numerators used to calculate the
allocation percentages for allocations with respect to Non-Principal
Collections, Principal Collections or the Default Amount, as applicable,
for all outstanding Series on such date of determination. The denominator
described in this clause (b) shall be determined as of the close of
business on the last day of the prior Monthly Period (or in the case of the
Monthly Period during which the Closing Date occurs, the Closing Date).
"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) without duplication, 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 the Controlled Accumulation Period or an
Early Amortization Period, the amount of Available Non-Principal Collections
used to make a deposit in the Principal Account or to pay principal on the
Series [_____] Notes pursuant to Sections 4.4(a)(x) and (xii) for the related
Payment Date, [and (iv) any distribution of amounts on deposit in the Reserve
Account on the Series [_____] Final Maturity Date pursuant to Section 4.10].
["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.]
"Class A Monthly Interest" is defined in Section 4.1(a).
"Class A Note Initial Principal Balance" means [_____] dollars
($[________]).
"Class A Note Interest Rate" means a per annum rate of [__] ([__]%) [in
excess of LIBOR as determined on the LIBOR Determination Date for the applicable
Interest Period].
"Class A Note Principal Balance" means, on any date of determination, an
amount equal to (a) the Class A Note Initial Principal Balance, minus (b) the
aggregate amount of principal payments made to the Class A Noteholders on or
prior to such date.
"Class A Noteholder" means the Person in whose name a Class A Note is
registered in the Note Register.
"Class A Notes" means any one of the Notes executed by the Issuer and
authenticated by or on behalf of the Indenture Trustee, substantially in the
form of Exhibit A-1.
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"Class A Required Amount" means, for any Payment Date, an amount equal to
the excess of the amounts described in Sections 4.4(a)(i), (ii) and (iii) over
Available Non-Principal Collections applied to pay such amount pursuant to
Section 4.4(a).
"Class B Monthly Interest" is defined in Section 4.1(b).
"Class B Note Initial Principal Balance" means [_____] dollars
($[________]).
"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.
"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 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 [__] ([__]%) [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 [______].
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"Collateral Amount" means, as of any date of determination, an amount equal
to the excess, if any, of (a) 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 over (ii) the reimbursements of such Investor
Charge-Offs and Reallocated Principal Collections pursuant to Section
4.4(a)(vii) prior to such date of determination.
"Controlled Accumulation Date" means [_____], subject to adjustment
pursuant to Section 4.12.
"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.
"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. Notwithstanding
anything to the contrary in this Indenture Supplement, an Early Amortization
Period that commences before the scheduled end of the Revolving Period may
terminate, and the Revolving Period may recommence, if the Rating Agency
Condition is satisfied.
"Expected Principal Payment Date" means the Payment Date in [_____].
"Group One" means Series [_____] and each other outstanding Series
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).
"Initial Collateral Amount" means the sum of (i) the Class A Note Initial
Principal Balance, (ii) the Class B Note Initial Principal Balance and (iii) the
Class C Note Initial Principal Balance.
"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.
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"Investment Earnings" means, for any Payment Date, all interest and
earnings on Permitted Investments included in the Principal Account [or 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 date of determination with respect
to the preceding month, the product of (a) the Default Amount for such month,
after giving effect to any allocation of a portion of such Default Amount to the
Transferor pursuant to Section 8.4 of the Indenture, and (b) the Allocation
Percentage with respect to such month.
"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 Deutsche Bank Trust
Company Americas, as Paying Agent, 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 second London Business Day prior to 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.]
"Maximum Rate" is defined in Section 8.8.
"Minimum Free Equity Percentage" means, as of any Determination Date, for
purposes of Series [_____], [___] percent ([___]%).
"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 during
such Monthly Period, and (b) the denominator of which is the Combined
Outstanding Principal Balances as of the beginning of such Monthly Period.
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"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 sum of:
(A) the lesser of (i) the excess of (x) the amount needed to make the
payments described in Sections 4.4(a)(i) through (iii) over (y) the amount of
Non-Principal Collections [and amounts withdrawn from the Reserve Account] that
are available to cover the payments described in Sections 4.4(a)(i) through
(iii), and (ii) the excess, if any, of (x) the sum of the Class A Note Initial
Principal Balance, the Class B Note Initial Principal Balance and the Class C
Note Initial Principal Balance over (y) the sum of (I) the amount of
unreimbursed Investor Charge-Offs after giving effect to Investor Charge-Offs
for the related Monthly Period, and (II) the amount of unreimbursed Reallocated
Principal Collections as of the previous Payment Date;
(B) the lesser of (i) the excess of (x) the amount needed to make the
payments described in Section 4.4(a)(iv) over (y) the amount of Non-Principal
Collections [and amounts withdrawn from the Reserve Account] that are available
to cover the payments described in Section 4.4(a)(iv) and (ii) the excess, if
any, of (x) the sum of the Class B Note Initial Principal Balance and the Class
C Note Initial Principal Balance over (y) the sum of (I) the amount of
unreimbursed Investor Charge-Offs after giving effect to Investor Charge-Offs
for the related Monthly Period, and (II) the amount of unreimbursed Reallocated
Principal Collections as of the previous Payment Date and after giving effect to
the reallocation of Principal Collections to make the payments described in
Sections 4.4(a)(i) through (iii) in respect of the then-current Payment Date;
and
(C) the lesser of (i) the excess of (x) the amount needed to make the
payments described in Section 4.4(a)(v) over (y) the amount of Non-Principal
Collections [and amounts withdrawn from the Reserve Account] that are available
to cover the payments described in Section 4.4(a)(v) and (ii) the excess, if
any, of (x) the Class C Note Initial Principal Balance over (y) the sum of (I)
the amount of unreimbursed Investor Charge-Offs after giving effect to Investor
Charge-Offs for the related Monthly Period, and (II) the amount of unreimbursed
Reallocated Principal Collections as of the previous Payment Date and after
giving effect to the reallocation of Principal Collections to make the payments
described in Sections 4.4(a)(i) through (iv) in respect of the then-current
Payment Date.
"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, that with
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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.
"Note Rate" means any of the Class A Note Interest Rate, the Class B Note
Interest Rate or the Class C Note Interest Rate, as applicable.
"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 [_____].
"Principal Account" means the account designated as such, established and
owned by the Issuer and maintained in accordance with Section 4.2.
"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 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 Reserve Account Amount" means, for any day, an amount equal to
(a) the product of (i) the Required Reserve Account Percentage and (ii) the Note
Principal Balance, as
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of such day (after giving effect to any changes therein on such day) or (b) any
other amount designated by the Transferor; provided, that if such designation is
of a lesser amount, the Transferor shall (i) provide the Indenture Trustee with
evidence that the Rating Agency Condition shall have been satisfied and (ii)
deliver to the Indenture Trustee a certificate of an Authorized Officer to the
effect that, based on the facts known to such officer at such time, in the
reasonable belief of the Transferor, such designation will not cause an Early
Amortization Event to occur with respect to Series [_____].]
"Required Reserve Account Percentage" means [_____] ([__]%).
["Reserve Account" means the account designated as such, established and
owned by the Issuer and maintained in accordance with Section 4.2.]
["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 [_____]" means the Series 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 [_____].
"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, or A-3
respectively.
"Series [_____] Noteholder" means the Person in whose name a Series [_____]
Note is registered in the Note Register.
"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.
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"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 Servicing Fee Percentage" means [___] percent ([___]%) per annum.
"Servicer Advance" is defined in the Servicing Agreement.
"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 [_____] Asset Backed Notes," the "Class B Series [_____] Asset
Backed Notes" and the "Class C Series [_____] 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
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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).
(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).
(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).
(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 least of (i) the Available Principal Collections
for the preceding Monthly Period; (ii) the Note Principal Balance on such
Transfer Date (minus any amount already in the Principal Account on such
Transfer Date); (iii) during the Controlled Accumulation Period, the result of
(x) the Note Principal Balance as of the last day of the Revolving Period,
divided by (y) the Controlled Accumulation Period Length; and (iv) during the
Controlled Accumulation Period, the Collateral Amount.
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, 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
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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.
(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 paid 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 released to the Issuer and, if an
Originator or an Affiliate of an Originator is the Master 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, after giving effect to allocations in respect of Dealer
Overconcentrations, Manufacturer Overconcentrations and Product Line
Overconcentrations pursuant to Section 8.4 of the Indenture, 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
11
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 the amounts contemplated
to be paid or deposited pursuant to Section 4.4(a) on the related Transfer
Date or Payment 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 the Issuer;
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, on that Transfer
Date, 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
the Issuer 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)(ii) 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. 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, an amount equal to the
Reallocated Principal Collections for the related Transfer Date
shall be made available on that Transfer Date for application in
accordance with Section 4.7, second, 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, third, shall be
12
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 fourth, shall be released to the Issuer.
(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,
that after the date on which an amount of such Principal
Collections equal to the Monthly Principal 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, shall be released to the Issuer.
(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 Series [_____] Noteholders and transferred to
the Principal Account until applied as provided herein; provided,
that after the date on which an amount of such Principal
Collections equal to the Monthly Principal 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, shall be released to the Issuer.
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:
(i) on a pari passu basis,
13
(A) the result of (1) the Allocation Percentage multiplied by (2)
the accrued and unpaid fees and other amounts owed to the Indenture
Trustee up to a maximum amount of [_____] dollars ($[________]) for
each calendar year, shall be paid to the Indenture Trustee,
(B) the result of (1) the Allocation Percentage multiplied by (2)
the accrued and unpaid fees and other amounts (including any unpaid
amounts pursuant to Section 7.2 of the Trust Agreement) owed to the
Trustee up to a maximum amount [_____] dollars ($[________]) for each
calendar year, shall be paid to the Trustee,
(C) the result of (1) the Allocation Percentage multiplied by (2)
the accrued and unpaid fees and other amounts owed to the
Administrator up to a maximum amount of [_____] dollars ($[________])
for each calendar year, shall be paid to the Administrator, and
(D) the result of (1) the Allocation Percentage multiplied by (2)
the accrued and unpaid fees and other amounts (including any unpaid
amounts pursuant to Section 15 of the Custody and Control Agreement)
owed to the Custodian up to a maximum amount of [_____] dollars
($[________]) for each calendar year, shall be paid to the Custodian;
(ii) an amount equal to the Noteholder Servicing Fee for the prior
Monthly Period and any overdue Noteholder Servicing Fee (to the extent not
previously paid), plus any unpaid Servicer Advances and accrued and unpaid
interest thereon, shall be paid to the Master Servicer;
(iii) an amount equal to Class A Monthly Interest for such Payment
Date, plus the amount of any Class A Monthly 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 the amount of any Class B Monthly 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 the amount of any Class C Monthly Interest previously due but not paid
to Class C Noteholders on a prior Payment Date, shall be deposited into the
Distribution Account;
(vi) an amount equal to the Investor Default Amount for the prior
Monthly Period shall be treated as Available Principal Collections and,
during the Controlled Accumulation Period or the Early Amortization Period,
shall be deposited into the Principal Account;
(vii) an amount equal to the sum of the aggregate amount of Investor
Charge-Offs and the amount of Reallocated Principal Collections which have
not been previously reimbursed shall be treated as Available Principal
Collections and, during the Controlled
14
Accumulation Period or the Early Amortization Period, shall be deposited
into the Principal Account;
(viii) [to deposit into the Reserve Account, during the Revolving
Period and the Controlled Accumulation Period, the amount, if any, required
to be deposited in the Reserve Account pursuant to Section 4.10(c);]
(ix) if any amounts are owed to the Persons listed in clause (i) above
and are not paid pursuant to clause (i), above, such amounts owed to such
Persons shall be paid on a pari passu basis to such Persons;
(x) to deposit into the Principal Account, during the Controlled
Accumulation Period, any deficiency in the amount otherwise required to be
deposited into the Principal Account at that time;
(xi) 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
(xii) during the Early Amortization Period, the remaining balance, if
any, will be used to make principal payments 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, Deutsche Bank Trust
Company Americas, as Paying Agent on behalf of the Issuer, 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 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;
15
(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
(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.
(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, in each case to the extent permitted by applicable law;
(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. Payments.
(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.
16
(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.
(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 withdrawn from the Reserve Account
on such Transfer Date] and applied pursuant to Section 4.4(a)(vi), 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,
after giving effect to Section 4.10(a), 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
17
any Transfer Date relating to any Payment Date on or after the Expected
Principal Payment Date, the Note Principal Balance.
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 (vi) 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 the Series [_____] Final Maturity Date, and 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 related Payment Date. On the date on which
the Reserve Account has been terminated, after giving effect to any withdrawal
on such date pursuant to Section 4.10(a) and making any payments to the Series
[_____] Noteholders required pursuant to this Indenture, all amounts then
remaining in the Reserve Account shall be released to the Issuer.
(e) The Reserve Account will terminate on the earliest to occur of (i) the
date on which the Note Principal Balance has been paid in full and all other
amounts payable to the Series [_____] Noteholders have been paid in full; (ii)
the Series [_____] Final Maturity Date; and (iii) the termination of the
Issuer.]
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 or the]
Principal 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.]
18
SECTION 4.12. Controlled Accumulation Period. The Controlled Accumulation
Period is scheduled to commence at the beginning of business on the Controlled
Accumulation Date. On each Determination Date until the Controlled Accumulation
Date, the Issuer shall review the amount of expected Principal Collections and
determine the Controlled Accumulation Period Length; provided, that if the
Controlled Accumulation Period Length (determined as described below) on any
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 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 total amount of Principal Receivables held by the Issuer 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, (2) no Early Amortization
Event with respect to any Series will subsequently occur and (3) no additional
Series (other than any Series being issued on such date of determination) will
be subsequently issued by the Issuer. Any notice by the Issuer modifying the
commencement of the Controlled Accumulation Period pursuant to this Section 4.12
shall specify (i) the Controlled Accumulation Period Length and (ii) the
commencement date of the Controlled Accumulation Period.
SECTION 4.13. [Determination of LIBOR.
(a) On each LIBOR Determination Date in respect of an Interest Period after
the first Interest Period, Deutsche Bank Trust Company Americas, as Paying
Agent, 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
19
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. Notwithstanding the foregoing, LIBOR for the first
Interest Period will be determined by reference to straight line interpolation
between one-month and two-month LIBOR based on the actual number of days in the
first Interest Period.
(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 Deutsche Bank Trust Company
Americas, as Paying Agent, at [(_____) _____-_____] or such other telephone
number as shall be designated by the Indenture Trustee for such purpose by prior
written notice by Deutsche Bank Trust Company Americas, as Paying Agent, 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 Authenticating Agent shall
authenticate, the Series [_____] Notes in accordance with Section 2.2 of the
Indenture. The Indenture Trustee shall deliver or cause to be delivered 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 (who shall deliver to or cause to be delivered to 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 [_____],
the Indenture 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
Indenture 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.
20
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 to make any payment or deposit
required to be made by it by the terms of the Second Tier Agreement on or before
the date occurring five (5) Business Days after the date such payment or deposit
is required to be made therein or (ii) failure of the Transferor duly to observe
or perform in any material respect any of its covenants or agreements set forth
in the Second Tier Agreement (excluding matters addressed by clause (i) above),
which failure has a material adverse effect on Series [_____] 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, the Transferor and the Indenture Trustee by any
Noteholder of the Series [_____] Notes;
(b) any representation or warranty made by the Transferor in the Second
Tier Agreement or by the Issuer in the Indenture and the Indenture Supplement or
any information contained in an account schedule required to be delivered by the
Transferor pursuant to [Section 2.1(b) 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 Series [_____] are
materially and adversely affected and continue to be materially and adversely
affected for such period; provided, 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 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 (or to convey participations) to
the Issuer when it is required to convey such Transferred Receivables (or to
convey participations) pursuant to [Section 2.6] of the Second Tier Agreement;
(d) any 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 a lower
percentage designated by the Transferor if the Rating Agency Condition is
satisfied with respect thereto) 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
([___]%) (or a lower percentage designated by the Transferor if the Rating
Agency Condition is satisfied with respect thereto);
21
(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 the Series [_____] Notes that results in the acceleration of the
maturity of the Series [_____] Notes pursuant to Section 5.3 of the Indenture;
[or]
(h) the sum of all investments (other than Receivables) held in trust
accounts of the Issuer and, without duplication, amounts held in the Excess
Funding Account, represents more than [_____] percent ([___]%) of the dollar
amount of the assets of the Issuer on each of six or more consecutive monthly
Determination Dates, after giving effect to all payments made or to be made on
the Payment Dates relating to those Determination Dates; [or
(i) (i) on any Payment Date, after giving effect to withdrawals from and
deposits into the Reserve Account, the Reserve Account balance is less than the
product of (A) the Required Reserve Account Percentage minus [_____] percent
([___]%) and (B) the Note Principal Balance, or (ii) on the Payment Date after a
withdrawal from the Reserve Account that does not result in an Early
Amortization Event pursuant to the preceding clause, after giving effect to
withdrawals from and deposits into the Reserve Account, the Reserve Account
balance is less than the product of (A) the Required Reserve Account Percentage
and (B) the Note Principal Balance;]
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 [_____] percent ([___]%) 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), (h) or (i), 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 [_____] percent
([___]%) or less of the Initial Collateral Amount, the 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, the Issuer will
apply such purchase price to repay the Series [_____] Notes in full as specified
below.
22
(b) In order to exercise such option, the 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, the 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 net proceeds of any sale of
Transferred Receivables pursuant to 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) an amount equal to the Class A
Monthly Interest due and payable on such Payment Date (or any prior Payment Date
that has not been paid) will be paid, pro rata, to the Class A Noteholders, to
the extent permitted by applicable law, (ii) the Class A Note Principal Balance
on such Payment Date will be paid, pro rata, to the Class A Noteholders, (iii)
an amount equal to the Class B Monthly Interest due and payable on such Payment
Date (or any prior Payment Date that has not been paid) will be paid, pro rata,
to the Class B Noteholders, to the extent permitted by applicable law, (iv) the
Class B Note Principal Balance on such Payment Date will be paid, pro rata, to
the Class B Noteholders, (v) an amount equal to the Class C Monthly Interest due
and payable on such Payment Date (or any prior Payment Date that has not been
paid) will be paid, pro rata, to the Class C Noteholders to the extent permitted
by applicable law, (vi) the Class C Note Principal Balance on such Payment Date
will be paid, pro rata, to the Class C Noteholders, and (vii) 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
23
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.
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 LAWS
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
24
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.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS 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 Debtor Relief
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 Transferor any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other proceeding under any
Debtor Relief Law in connection with any obligation relating to the Notes, the
Indenture or any of the Related Documents.
[SIGNATURE PAGES FOLLOW]
25
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:
---------------------------------
S-1
WILMINGTON TRUST COMPANY, as Indenture
Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-2
[The undersigned agrees to calculate LIBOR as provided in Section 4.13.
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:
------------------------------------
Name:
----------------------------------
Title: ]
--------------------------------
S-3
EXHIBIT A-1
FORM OF CLASS A SERIES [_____] 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 DISTRIBUTION
FINANCIAL SERVICES FLOORPLAN MASTER 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 FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX
LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY, INCOME.
BY ACQUIRING THIS NOTE (OR ANY INTEREST HEREIN), EACH PURCHASER AND
TRANSFEREE SHALL BE DEEMED TO REPRESENT AND WARRANT THAT EITHER (I) IT IS NOT
ACQUIRING THE NOTE WITH THE PLAN ASSETS OF (A) AN "EMPLOYEE BENEFIT PLAN" AS
DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA") WHICH IS SUBJECT TO TITLE I OF ERISA, (B) A "PLAN" AS
DEFINED IN SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), (C) AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS OF THE
FOREGOING OR (D) A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS
SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF
Exhibit A-1 (Page 1)
ERISA OR SECTION 4975 OF THE CODE OR (II) THE ACQUISITION AND HOLDING OF THIS
NOTE (OR ANY INTEREST HEREIN) WILL NOT GIVE RISE TO A NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE
CASE OF A GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR LAW).
Exhibit A-1 (Page 2)
REGISTERED $_________________
No. R-_____ CUSIP NO. _____________
GE DEALER FLOORPLAN MASTER NOTE TRUST
SERIES [_____]
CLASS A SERIES [_____] ASSET BACKED NOTE
GE Dealer Floorplan Master Note Trust (herein referred to as the "Issuer"
or the "Trust"), a Delaware statutory trust governed by an Amended and Restated
Trust Agreement dated as of August 12, 2004, for value received, hereby promises
to pay to Cede & Co., or registered assigns, subject to the following
provisions, the principal sum of [_____] DOLLARS ($[________])(1), or such
greater or lesser amount as determined in accordance with the Indenture, on the
[_______] 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
rate and in the manner set forth in the Indenture Supplement referred to herein.
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 herein.
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.
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 herein, or be valid for any purpose.
----------
(1) The aggregate amount of the Class A Notes is equal to the Class A Note
Initial Principal Balance. Book-entry notes will be prepared in
denominations not to exceed five hundred million dollars ($500,000,000).
Exhibit A-1 (Page 3)
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:
------------------------------
Exhibit A-1 (Page 4)
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: DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Authenticating Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated:
------------------------------
Exhibit A-1 (Page 5)
GE DEALER FLOORPLAN MASTER NOTE TRUST
SERIES [_____]
CLASS A SERIES [_____] 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 August 12, 2004 (as
amended, modified or supplemented from time to time, the "Master Indenture"),
between the Issuer and Wilmington Trust Company, as indenture trustee (the
"Indenture Trustee"), as supplemented by the Series [_____] Indenture Supplement
dated as of [_____] (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, BRUNSWICK ACCEPTANCE COMPANY, LLC 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
Exhibit A-1 (Page 6)
(INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW, BUT
WITHOUT REGARD TO ANY OTHER CONFLICT OF LAWS PROVISIONS THEREOF) AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
Exhibit A-1 (Page 7)
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.
Exhibit A-1 (Page 8)
EXHIBIT A-2
FORM OF CLASS B SERIES [_____] 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 DISTRIBUTION
FINANCIAL SERVICES FLOORPLAN MASTER 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 FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX
LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY, INCOME.
BY ACQUIRING THIS NOTE (OR ANY INTEREST HEREIN), EACH PURCHASER AND
TRANSFEREE SHALL BE DEEMED TO REPRESENT AND WARRANT THAT EITHER (I) IT IS NOT
ACQUIRING THE NOTE WITH THE PLAN ASSETS OF (A) AN "EMPLOYEE BENEFIT PLAN" AS
DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA") WHICH IS SUBJECT TO TITLE I OF ERISA, (B) A "PLAN" AS
DEFINED IN SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), (C) AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS OF THE
FOREGOING OR (D) A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS
SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF
Exhibit A-2 (Page 1)
ERISA OR SECTION 4975 OF THE CODE OR (II) THE ACQUISITION AND HOLDING OF THIS
NOTE (OR ANY INTEREST HEREIN) WILL NOT GIVE RISE TO A NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE
CASE OF A GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR LAW).
Exhibit A-2 (Page 2)
REGISTERED $__________
No. R-_____ CUSIP NO. _________
GE DEALER FLOORPLAN MASTER NOTE TRUST
SERIES [_____]
CLASS B SERIES [_____] ASSET BACKED NOTE
GE Dealer Floorplan Master Note Trust (herein referred to as the "Issuer"
or the "Trust"), a Delaware statutory trust governed by an Amended and Restated
Trust Agreement dated as of August 12, 2004, for value received, hereby promises
to pay to Cede & Co., or registered assigns, subject to the following
provisions, the principal sum of [__] dollars ($[_________]), or such greater or
lesser amount as determined in accordance with the Indenture, on the [_______]
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 rate and
the manner set forth in the Indenture Supplement referred to herein. 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
herein.
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.
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 herein, or be valid for any purpose.
Exhibit A-2 (Page 3)
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:
------------------------------
Exhibit A-2 (Page 4)
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: DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Authenticating Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated:
------------------------------
Exhibit A-2 (Page 5)
GE DEALER FLOORPLAN MASTER NOTE TRUST
SERIES [_____]
CLASS B SERIES [_____] 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 August 12, 2004 (as
amended, modified or supplemented from time to time, the "Master Indenture"),
between the Issuer and Wilmington Trust Company, as indenture trustee (the
"Indenture Trustee"), as supplemented by the Series [_____] Indenture Supplement
dated as of [_____] (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, BRUNSWICK ACCEPTANCE COMPANY, LLC 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
Exhibit A-2 (Page 6)
(INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW, BUT
WITHOUT REGARD TO ANY OTHER CONFLICT OF LAWS PROVISIONS THEREOF) AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
Exhibit A-2 (Page 7)
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.
Exhibit A-2 (Page 8)
EXHIBIT A-3
FORM OF CLASS C SERIES [_____] 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 DISTRIBUTION
FINANCIAL SERVICES FLOORPLAN MASTER 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 FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX
LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY, INCOME.
BY ACQUIRING THIS NOTE (OR ANY INTEREST HEREIN), EACH PURCHASER AND
TRANSFEREE SHALL BE DEEMED TO REPRESENT AND WARRANT THAT EITHER (I) IT IS NOT
ACQUIRING THE NOTE WITH THE PLAN ASSETS OF (A) AN "EMPLOYEE BENEFIT PLAN" AS
DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA") WHICH IS SUBJECT TO TITLE I OF ERISA, (B) A "PLAN" AS
DEFINED IN SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), (C) AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS OF THE
FOREGOING OR (D) A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS
SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF
Exhibit A-3 (Page 1)
ERISA OR SECTION 4975 OF THE CODE OR (II) THE ACQUISITION AND HOLDING OF THIS
NOTE (OR ANY INTEREST HEREIN) WILL NOT GIVE RISE TO A NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE
CASE OF A GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR LAW).
Exhibit A-3 (Page 2)
REGISTERED $__________
No. R-_________ CUSIP NO. _________
GE DEALER FLOORPLAN MASTER NOTE TRUST
SERIES [_____]
CLASS C SERIES [_____] ASSET BACKED NOTE
GE Dealer Floorplan Master Note Trust (herein referred to as the "Issuer"
or the "Trust"), a Delaware statutory trust governed by an Amended and Restated
Trust Agreement dated as of August 12, 2004, for value received, hereby promises
to pay to Cede & Co., or registered assigns, subject to the following
provisions, the principal sum of [_______] dollars ($[_________]), or such
greater or lesser amount as determined in accordance with the Indenture, on the
[_______] 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
rate and in the manner set forth in the Indenture Supplement referred to herein.
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 herein.
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.
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 herein, or be valid for any purpose.
Exhibit A-3 (Page 3)
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:
------------------------------
Exhibit A-3 (Page 4)
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: DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Authenticating Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated:
------------------------------
Exhibit A-3 (Page 5)
GE DEALER FLOORPLAN MASTER NOTE TRUST
SERIES [_____]
CLASS C SERIES [_____] 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 August 12, 2004 (as
amended, modified or supplemented from time to time, the "Master Indenture"),
between the Issuer and Wilmington Trust Company, as indenture trustee (the
"Indenture Trustee"), as supplemented by the Series [_____] Indenture Supplement
dated as of [_____] (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, BRUNSWICK ACCEPTANCE COMPANY, LLC 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
Exhibit A-3 (Page 6)
(INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW, BUT
WITHOUT REGARD TO ANY OTHER CONFLICT OF LAWS PROVISIONS THEREOF) AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
Exhibit A-3 (Page 7)
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.
Exhibit A-3 (Page 8)
EXHIBIT B
Form of Monthly Servicer's Certificate
[On file with GECC]
Exhibit B (Page 1)
