Exhibit 99.3
FORM OF
AMENDED AND RESTATED SERVICING AGREEMENT
Dated as of [________], 2006
between
GE DEALER FLOORPLAN MASTER NOTE TRUST
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Master Servicer
Amended and Restated Servicing Agreement
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions................................................. 1
SECTION 1.2 Other Interpretive Matters.................................. 10
ARTICLE II
APPOINTMENT OF MASTER SERVICER; CERTAIN DUTIES AND
RESPONSIBILITIES OF MASTER SERVICER
SECTION 2.1 Appointment of Master Servicer.............................. 10
SECTION 2.2 Duties and Responsibilities of Master Servicer.............. 11
SECTION 2.3 Unrelated Amounts........................................... 11
SECTION 2.4 Authorization of Master Servicer............................ 11
SECTION 2.5 Servicing Fees.............................................. 12
SECTION 2.6 Covenants of Master Servicer................................ 13
SECTION 2.7 Reporting Requirements...................................... 14
SECTION 2.8 Annual Master Servicer's Certificate........................ 14
SECTION 2.9 Annual Independent Public Accountants' Servicing Report..... 14
SECTION 2.10 Notices to Transferor....................................... 15
SECTION 2.11 Collections................................................. 15
SECTION 2.12 Allocations and Disbursements............................... 15
SECTION 2.13 New Series.................................................. 16
SECTION 2.14 Servicer Advances........................................... 16
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of Master Servicer........... 17
ARTICLE IV
ADDITIONAL MATTERS RELATING TO MASTER SERVICER
SECTION 4.1 Covenants of Master Servicer Regarding the Transferred
Receivables................................................. 18
SECTION 4.2 Merger or Consolidation of, or Assumption of the Obligations
of Master Servicer.......................................... 19
SECTION 4.3 Access to Certain Documentation and Information Regarding
the Receivables............................................. 20
ARTICLE V
SERVICER DEFAULTS
SECTION 5.1 Servicer Defaults........................................... 20
ARTICLE VI
SUCCESSOR MASTER SERVICER
SECTION 6.1 Resignation of Master Servicer.............................. 21
SECTION 6.2 Appointment of the Successor Master Servicer................ 22
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TABLE OF CONTENTS
(continued)
PAGE
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SECTION 6.3 Duties of Master Servicer................................... 22
SECTION 6.4 Effect of Termination or Resignation........................ 23
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 Indemnities by Master Servicer.............................. 23
SECTION 7.2 Limitation of Damages; Indemnified Persons.................. 23
SECTION 7.3 Limitation on Liability of Master Servicer and Others....... 23
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Notices..................................................... 24
SECTION 8.2 Binding Effect; Assignability............................... 25
SECTION 8.3 Termination; Survival of Obligations........................ 25
SECTION 8.4 No Proceedings.............................................. 25
SECTION 8.5 Complete Agreement; Modification of Agreement............... 25
SECTION 8.6 Amendments and Waivers...................................... 25
SECTION 8.7 No Waiver; Remedies......................................... 26
SECTION 8.8 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL....................................................... 26
SECTION 8.9 Counterparts................................................ 27
SECTION 8.10 Severability................................................ 27
SECTION 8.11 Section Titles.............................................. 27
SECTION 8.12 Limited Recourse............................................ 27
SECTION 8.13 Further Assurances.......................................... 28
SECTION 8.14 Pledge of Assets............................................ 28
SECTION 8.15 Waiver of Setoff............................................ 28
SECTION 8.16 Limitation of Liability of the Trustee...................... 28
SECTION 8.17 Continued Effectiveness of the Existing Servicing
Agreement................................................... 29
Schedule 2.7 Reporting Requirements
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This AMENDED AND RESTATED SERVICING AGREEMENT, dated as of [_____], 2006
(this "Agreement"), is entered into between GENERAL ELECTRIC CAPITAL
CORPORATION, in its capacity as the Master Servicer (as defined below), and GE
DEALER FLOORPLAN MASTER NOTE TRUST, a Delaware statutory trust ("Owner").
WHEREAS, the parties hereto executed a servicing agreement, dated as of
August 14, 2004 (the "Existing Servicing Agreement"), and now wish to amend and
restate the Existing Servicing Agreement; and
NOW THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree to amend and restate the Existing Servicing Agreement as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions.
"Account" means each Initial Account and, from and after the related
Addition Date, each Additional Account. The term "Account" shall not include any
Removed Accounts.
"Account Schedule" is defined in the First Tier Agreement.
"Addition Date" is defined in the First Tier Agreement.
"Additional Accounts" means each individual revolving credit arrangement
established by an Originator with a Dealer in connection with the Floorplan
Business or the Asset Based Lending Business, which account is designated
pursuant to the First Tier Agreement to be included as an Account and is
identified in an Account Schedule delivered to the Indenture Trustee.
"Accounts Receivable" means, with respect to any Dealer, all amounts shown
on such Dealer's records as amounts payable by a customer (which may be a
Dealer) in respect of goods or services sold by such Dealer to such customer.
"Accounts Receivable Business" means the extensions of credit made by an
Originator to Dealers in order to finance the Accounts Receivable of such
Dealers.
"Accounts Receivable Financing Agreement" means an accounts receivable
financing agreement or accounts receivable purchase agreement entered into by an
Originator with a Dealer in connection with the Accounts Receivable Business.
"Administration Agreement" means the Administration Agreement, dated as of
August 12, 2004, among the Administrator, the Trustee and the Owner.
"Administrator" means GE Capital, in its capacity as Administrator under
the Administration Agreement, or any other Person designated as Administrator
under the Administration Agreement.
"Affiliate" means, with respect to any Person, (a) each Person that,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, five percent (5%) or more of the securities having
ordinary voting power in the election of directors of such Person, (b) each
Person that controls, is controlled by or is under common control with such
Person or (c) each of such Person's officers, directors, joint venturers and
partners. For the purposes of this definition, "control" of a Person means the
possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement" is defined in the preamble.
"Asset Based Lending Business" means the extensions of credit made by an
Originator to Dealers in order to provide loans based on the value of certain
assets of such Dealers.
"Asset Based Lending Financing Agreement" means an asset based lending
financing agreement entered into by an Originator and a Dealer in connection
with the Asset Based Lending Business.
"Authorized Officer" means (a) with respect to any bank, corporation or
statutory trust, the Chairman or Vice-Chairman of the Board, the President, any
Vice President, the Secretary, the Treasurer, any Assistant Secretary, any
Assistant Treasurer and each other officer or employee of such corporation or
trustee of such trust specifically authorized in resolutions of the Board of
Directors of such corporation or trustee of such trust to sign agreements,
instruments or other documents on behalf of such corporation or statutory trust
in connection with the transactions contemplated by the Servicing Agreement and
the other Related Documents, and (b) with respect to a limited liability
company, any officer or manager of such limited liability company; provided,
that any Authorized Officer of the Transferor shall be considered to be an
Authorized Officer of Owner.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which banks are required or permitted to be closed in the State of New York, the
State of Illinois or the State of Connecticut (or, with respect to any Series,
any additional city specified by the related Indenture Supplement).
"Class" means any class of Notes of any Series.
"Closing Date" means August 12, 2004.
"Collateral Security" means, with respect to any Receivable, (i) the
security interest, if any, granted by or on behalf of the related Dealer in the
related Products or Accounts Receivable that, in each case, constitute the
primary collateral for such Receivable but does not include secondary collateral
such as personal property, personal guarantees, mortgages on real estate,
assignments of certificates of deposit or letters of credit and (ii) all Records
in respect of such Receivable.
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"Collection Account" means the deposit account designated as such in the
Indenture.
"Collections" means, without duplication, all payments by or on behalf of
Dealers received by the Master Servicer in respect of the Transferred
Receivables (including proceeds from the realization upon any Collateral
Security), in the form of cash, checks, wire transfers or any other form of
payment. Collections of Non-Principal Receivables shall include all Recoveries.
Amounts paid by Transferor pursuant to Section 2.5 of the Second Tier Agreement
shall be deemed to be Principal Collections. Amounts paid by Transferor pursuant
to Section 6.1(e) of the Second Tier Agreement shall be deemed to be Principal
Collections to the extent that they represent the purchase price of Principal
Receivables. Amounts paid by the Master Servicer pursuant to Section 2.6 shall
be deemed to be Principal Collections.
"Commission" means the Securities and Exchange Commission.
"Credit and Collection Policies" means the credit and collection policies
adopted by Owner pursuant to the Credit and Collection Policies Resolution, as
such credit and collection policies may be amended or modified from time to
time.
"Credit and Collection Policies Resolution" means a resolution adopted by
the Owner on or prior to the Closing Date.
"Custodian" means Wilmington Trust Company, as custodian under the Custody
and Control Agreement.
"Custody and Control Agreement" means the Custody and Control Agreement
dated as of August 12, 2004, among Owner, the Custodian and the Indenture
Trustee.
"Dealer" means a Person engaged generally in the business of purchasing
consumer or commercial goods from a manufacturer or distributor thereof and
holding such goods for sale or lease in the ordinary course of business or a
Person engaged generally in the business of manufacturing or distributing
consumer or commercial goods for sale to Dealers in the ordinary course of
business.
"Debtor Relief Laws" means Title 11 of the United States Code and all other
applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, suspension of payments, readjustment
of debt, marshalling of assets or similar debtor relief laws of the United
States, any state or any foreign country from time to time in effect, affecting
the rights of creditors generally.
"Defaulted Receivable" is defined in the First Tier Agreement.
"Delinquent Receivable" is defined in Section 2.14.
"Determination Date" means, unless otherwise specified in any Indenture
Supplement with respect to the related Series, the second Business Day preceding
each Payment Date.
"Eligible Servicer" means the Indenture Trustee, a wholly owned subsidiary
of the Indenture Trustee or an entity that, at the time of its appointment as
Servicer: (a) is servicing a
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portfolio of dealer floorplan loans (or is a successor to an entity that was
engaged and continues to be engaged in such servicing); (b) is legally qualified
and has the capacity to service the Accounts; (c) is qualified (or licensed) to
use the software that is then being used to service the Accounts or obtains the
right to use, or has its own, software which is adequate to perform its duties
under this Agreement; (d) has the ability to professionally and competently
service a portfolio of similar accounts; and (e) has a net worth of at least
$50,000,000 as of the end of its most recent fiscal quarter.
"Exchange Act" means the Securities Exchange Act of 1934.
"Existing Servicing Agreement" is defined in the recitals.
"Financing Agreement" means any Wholesale Financing Agreement, Accounts
Receivable Financing Agreement or Asset Based Lending Financing Agreement.
"First Tier Agreement" means the Receivables Sale Agreement, dated as of
August 12, 2004, among the Originators and the Transferor.
"Floorplan Agreement" means an agreement entered into by an Originator and
a Manufacturer establishing certain terms and conditions for the financing of
such Manufacturer's Dealers by such Originator, which may include such
Manufacturer's agreement, among other matters, to repurchase from, or remarket
for, such Originator Products sold by such Manufacturer to any of its Dealers
and financed by such Originator under a Wholesale Financing Agreement if such
Originator acquires possession of such Products because of a default by such
Dealer under such Wholesale Financing Agreement, whether by repossession,
voluntary surrender or other circumstances.
"Floorplan Business" means the extensions of credit made by an Originator
to Dealers in order to finance Products purchased by Dealers from Manufacturers
for sale or lease by such Dealers.
"GE Capital" means General Electric Capital Corporation, a Delaware
corporation.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, and any agency, department or other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Indemnified Amounts" means, with respect to any Person, any and all suits,
actions, proceedings, claims, damages, losses, liabilities and expenses
(including reasonable attorneys' fees and disbursements and other costs of
investigation or defense, including those incurred upon any appeal).
"Indenture" means the Master Indenture dated as of August 12, 2004, between
Owner and the Indenture Trustee.
"Indenture Supplement" means, with respect to any Series, a supplement to
the Indenture, executed and delivered in connection with the original issuance
of the Notes of such Series.
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"Indenture Trustee" means, at any time, the Person acting as indenture
trustee under the Indenture.
"Initial Account" means each individual revolving credit arrangement
established by an Originator with a Dealer which was identified in the Account
Schedule delivered to the Indenture Trustee on or prior to the Closing Date.
"Instructions" is defined in the Custody and Control Agreement.
"Insurance Proceeds" with respect to an Account means any amounts received
by the Master Servicer pursuant to any policy of insurance which are required to
be paid to an Originator pursuant to a Wholesale Financing Agreement, Accounts
Receivable Financing Agreement or Asset Based Lending Financing Agreement.
"Lien" means any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any lease
or title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of, or agreement to
give, any financing statement perfecting a security interest under the UCC or
comparable law of any jurisdiction).
"Litigation" means, with respect to any Person, any action, claim, lawsuit,
demand, investigation or proceeding pending or threatened against such Person
before any court, board, commission, agency or instrumentality of any federal,
state, local or foreign government or of any agency or subdivision thereof or
before any arbitrator or panel of arbitrators.
"Manufacturer" means a Person engaged generally in the business of
manufacturing or distributing Products for sale or lease to Dealers in the
ordinary course of business.
"Manufacturer Discount Amount", with respect to a Receivable, means an
amount equal to the excess, if any, of (a) the invoice price of the related
Product over (b) the amount that the applicable Manufacturer agrees to accept
from an Originator in order to permit the applicable Dealer to obtain a "free
flooring" period during which such Dealer is not required to pay interest (or
pays interest at a reduced rate) in respect of such Receivable.
"Manufacturer Subsidy Amount", with respect to a Receivable, means an
amount that the applicable Manufacturer has agreed to pay in respect of such
Receivable (at any time or from time to time) after such Receivable has been
originated in order to permit the applicable Dealer to obtain a "free flooring"
period during which such Dealer is not required to pay interest (or pays
interest at a reduced rate) in respect of such Receivable.
"Master Servicer" means GE Capital or any other Person designated as a
Successor Master Servicer.
"Material Adverse Effect" means a material adverse effect on (a) the
ability of Master Servicer to perform any of its obligations under the Related
Documents in accordance with the terms thereof, (b) the validity or
enforceability of any Related Document or the rights and
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remedies of Owner under any Related Document or (c) the Transferred Receivables
(including the collectibility of the Transferred Receivables and the security
and other rights securing and supporting the payment of the Transferred
Receivables), the Financing Agreements or the ownership interests or Liens of
Owner thereon or the priority of such interests or Liens.
"Monthly Period" means each calendar month.
"Monthly Servicing Fee" is defined in Section 2.5.
"Moody's" means Xxxxx'x Investors Service, Inc.
"New Issuance" is defined in Section 2.13.
"Non-Principal Collections" means the sum of (a) Collections of interest
and all other non-principal charges (including insurance service fees and
handling fees) on the Receivables; (b) all Recoveries; (c) all interest and
earnings on investments included in the Excess Funding Account (as defined in
the Indenture), net of losses and investment expenses; (d) payments by Dealers
of Manufacturer Discount Amounts; and (e) payments by Manufacturers of
Manufacturer Subsidy Amounts.
"Non-Principal Receivables" with respect to any Account means (i) all
amounts billed to the related Dealer in respect of interest and all other
non-principal charges and (ii) without duplication, all amounts owed in respect
of Manufacturer Discount Amounts and Manufacturer Subsidy Amounts.
"Noteholder" is defined in the Indenture.
"Notes" means all notes issued by the Owner pursuant to the Indenture and
the applicable Indenture Supplements.
"Officer's Certificate" means, with respect to any Person, a certificate
signed by an Authorized Officer of such Person.
"Opinion of Counsel" is defined in the Indenture.
"Originator" means a Person that is party from time to time to the First
Tier Agreement as a "Seller".
"Outstanding" is defined in the Indenture.
"Owner" is defined in the preamble.
"Participation Interest" is defined in the First Tier Agreement.
"Payment Date" means, except as otherwise specified for any Series in the
related Indenture Supplement, the twentieth (20th) day of each calendar month,
or if the twentieth (20th) day is not a Business Day, the next Business Day.
"Payment Date Shortfall" is defined in Section 2.14.
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"Permitted Investments" is defined in the Custody and Control Agreement.
"Person" means any individual, sole proprietorship, partnership, joint
venture, unincorporated organization, trust (including a business trust),
association, corporation, limited liability company, institution, public benefit
corporation, joint stock company, Governmental Authority or any other entity of
whatever nature.
"Principal Collections" means all Collections other than Non-Principal
Collections. Amounts paid by an Originator pursuant to Section 2.5 of the First
Tier Agreement shall be deemed to be Principal Collections. To the extent not
duplicative of the preceding sentence, amounts paid by Transferor pursuant to
Section 2.5 of the Second Tier Agreement shall be deemed to be Principal
Collections. Amounts paid by Transferor pursuant to Section 6.1(e) of the Second
Tier Agreement shall be deemed to be Principal Collections to the extent that
they represent the purchase price of Principal Receivables. Amounts paid by the
Master Servicer pursuant to Section 2.6 shall be deemed to be Principal
Collections.
"Principal Receivable" with respect to an Account means amounts shown on
Owner's records as Receivables (other than such amounts which represent
Non-Principal Receivables due from the related Dealer).
"Products" means the commercial and consumer goods held or to be held by
Dealers for sale or lease and financed by an Originator.
"Rating Agency" is defined in the Indenture.
"Rating Agency Condition" is defined in the Indenture.
"Receivable" means, with respect to an Account, all amounts payable
(including interest, finance charges and other charges), and the obligation to
pay such amounts, by the related Dealer from time to time in respect of advances
made by an Originator to or on behalf of such Dealer in connection with the
Floorplan Business, the Accounts Receivable Business or the Asset Based Lending
Business, as the case may be, together with the group of writings evidencing
such amounts and the security interest created in connection therewith and all
of the rights, remedies, powers and privileges thereunder (including under the
related Financing Agreement); provided that if a Participation Interest has been
created in respect of such Account, whether before or after that Account has
been designated as an Account, the amounts so payable by the related Dealer that
are allocable to such Participation Interest shall not be part of the
"Receivables" in respect of such Account. A Receivable that, prior to its
transfer to the Transferor, was subject to a participation from an Originator in
favor of another Originator shall be considered a Receivable.
"Records" means all Financing Agreements and other documents, books,
records and other information (including computer programs, tapes, disks, data
processing software and related property and rights) prepared and maintained by
Transferor, an Originator, Master Servicer, any Sub-Servicer or Owner with
respect to the Transferred Receivables and the Dealers thereunder.
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"Recoveries" on any Determination Date shall mean all amounts received,
including Insurance Proceeds, during the Monthly Period immediately preceding
such Determination Date with respect to Receivables which have previously become
Defaulted Receivables.
"Related Documents" means this Agreement, the Indenture, the Indenture
Supplements and all other pledges, powers of attorney, consents, assignments,
contracts, notices and all other written matter whether heretofore, now or
hereafter executed by or on behalf of Master Servicer, or any employee of Master
Servicer, and delivered in connection with any of the foregoing or the
transactions contemplated thereby.
"Removed Accounts" is defined in the First Tier Agreement.
"Requirements of Law" means, as to any Person, the certificate of
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether federal, state or local.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"S&P Condition" is defined in the Indenture.
"Securities Act" means the Securities Act of 1933.
"Second Tier Agreement" means the Receivables Purchase and Contribution
Agreement dated as of August 12, 2004, between the Transferor and Owner.
"Series" means any series of Notes, which may include within any such
Series a Class or Classes of Notes subordinate to another such Class or Classes
of Notes of the same Series.
"Series Account" means any deposit, trust, escrow or similar account
maintained for the benefit of the Noteholders of any Series or class, as
specified in any Indenture Supplement.
"Series Closing Date" means, with respect to any Series, the date of
issuance of such Series.
"Servicer Advance" is defined in Section 2.14.
"Servicer Default" is defined in Section 5.1.
"Servicer Indemnified Person" is defined in Section 7.1.
"Servicer Termination Notice" means any notice by the Indenture Trustee or
holders of Notes representing more than fifty percent (50%) of the Outstanding
Principal Balance (as defined in the Indenture) to Master Servicer and the
Indenture Trustee, respectively, that (a) a Servicer Default has occurred and
(b) Master Servicer's appointment under this Agreement has been terminated.
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"Servicing Records" means all documents, books, Records and other
information (including computer programs, tapes, disks, data processing software
and related property and rights) prepared and maintained by Master Servicer with
respect to the Transferred Receivables and the Dealers thereunder.
"Sub-Servicer" means any Person with whom Master Servicer enters into a
Sub-Servicing Agreement.
"Sub-Servicing Agreement" means any written contract entered into between
Master Servicer and any Sub-Servicer pursuant to and in accordance with Section
2.1 relating to the servicing, administration or collection of the Transferred
Receivables.
"Successor Master Servicer" is defined in Section 6.2.
"Transfer Date" means the Business Day preceding each Payment Date.
"Transferor" means CDF Funding, Inc., a Delaware corporation.
"Transferred Receivable" means each Receivable purchased or otherwise
acquired by Owner pursuant to the Second Tier Agreement, but excluding
Receivables that have been repurchased by an Originator pursuant to the First
Tier Agreement or assigned to Master Servicer pursuant to this Agreement.
"Trust Accounts" is defined in the Custody and Control Agreement.
"Trust Agreement" means the Amended and Restated Trust Agreement relating
to Owner, dated as of August 12, 2004, between Transferor and the Trustee.
"Trustee" means The Bank of New York (Delaware), not in its individual
capacity but as Trustee under the Trust Agreement, its successors in interest
and any successor Trustee under the Trust Agreement.
"UCC" means, with respect to any jurisdiction, the Uniform Commercial Code
as the same may, from time to time, be enacted and in effect in such
jurisdiction.
"Unrelated Amounts" is defined in Section 2.3.
"Wholesale Financing Agreement" means a wholesale financing agreement
entered into by an Originator and a Dealer in order to finance Products
purchased by such Dealer from a Manufacturer.
SECTION 1.2 Other Interpretive Matters. All terms defined directly or by
incorporation in this Agreement shall have the defined meanings when used in any
certificate or other document delivered pursuant thereto unless otherwise
defined therein. For purposes of this Agreement and all such certificates and
other documents, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in this
Agreement to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles; (b) references to any
month, quarter or
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year refer to a calendar month, quarter or year; (c) terms defined in Article 9
of the UCC and not otherwise defined in this Agreement are used as defined in
that Article; (d) references to any amount as on deposit or outstanding on any
particular date means such amount at the close of business on such day; (e) the
words "hereof," "herein" and "hereunder" and words of similar import refer to
this Agreement (or the certificate or other document in which they are used) as
a whole and not to any particular provision of this Agreement (or such
certificate or document); (f) references to any Section, Schedule or Exhibit are
references to Sections, Schedules and Exhibits in or to this Agreement (or the
certificate or other document in which the reference is made), and references to
any paragraph, subsection, clause or other subdivision within any Section or
definition refer to such paragraph, subsection, clause or other subdivision of
such Section or definition; (g) the term "including" means "including without
limitation"; (h) references to any law or regulation refer to that law or
regulation as amended from time to time and include any successor law or
regulation; (i) references to any agreement refer to that agreement as from time
to time amended or supplemented or as the terms of such agreement are waived or
modified in accordance with its terms; and (j) references to any Person include
that Person's successors and assigns.
ARTICLE II
APPOINTMENT OF MASTER SERVICER; CERTAIN DUTIES
AND RESPONSIBILITIES OF MASTER SERVICER.
SECTION 2.1 Appointment of Master Servicer. Owner hereby appoints Master
Servicer as its agent to service the Transferred Receivables and enforce its
rights and interests in and under the Transferred Receivables and to serve in
such capacity until the termination of its responsibilities pursuant to Sections
5.1 or 6.1. In connection therewith, Master Servicer hereby accepts such
appointment and agrees to perform the duties and obligations set forth herein.
Master Servicer may delegate any duties to any of its Affiliates without further
action or subcontract with a Sub-Servicer for the collection, servicing or
administration of the Transferred Receivables or any portion thereof; provided,
that (a) Master Servicer shall remain liable and responsible for the performance
of the duties and obligations of any such Affiliate or Sub-Servicer pursuant to
the terms hereof and (b) any Sub-Servicing Agreement that may be entered into
with, and any other transactions or services relating to the Transferred
Receivables involving, a Sub-Servicer shall be deemed to be between the
Sub-Servicer and Master Servicer alone, and Owner shall not be deemed party
thereto and shall have no obligations, duties or liabilities with respect to the
Sub-Servicer.
SECTION 2.2 Duties and Responsibilities of Master Servicer.
(a) Subject to the provisions of this Agreement, Master Servicer shall
conduct the servicing, administration and collection of the Transferred
Receivables with reasonable care and diligence and in accordance with the
Financing Agreements and the Credit and Collection Policies.
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(b) Owner shall provide Master Servicer not less than five (5)
Business Days' prior notice of (i) any designation of additional or removed
Accounts and (ii) any designation of any additional Originator contemplated
pursuant to the First Tier Agreement. Any such designation, removal or
change shall be effective for purposes of this Agreement on the date the
designation, removal or change is given effect under the First Tier
Agreement or the Second Tier Agreement, as specified by Owner to Master
Servicer.
(c) Following receipt of notice of any designation of additional or
removed Accounts or an additional Originator pursuant to Section 2.2(b),
Master Servicer shall assist Owner in producing any information required by
Owner in connection with such designation or change.
(d) Master Servicer shall not be obligated to use separate servicing
procedures, offices, employees or accounts for servicing the Transferred
Receivables from the procedures, offices, employees and accounts used by
Master Servicer in connection with servicing other receivables.
(e) Master Servicer shall maintain fidelity bond or other appropriate
insurance coverage insuring against losses through wrongdoing of its
officers and employees who are involved in the servicing of receivables
covering such actions and in such amounts as Master Servicer believes to be
reasonable from time to time.
(f) Master Servicer shall deliver Instruments and shall direct the
Custodian as to the investment of funds credited to the Trust Accounts.
SECTION 2.3 Unrelated Amounts. If Master Servicer determines that amounts
which are not property of Owner ("Unrelated Amounts") have been deposited in the
Collection Account, then Master Servicer shall provide evidence thereof to Owner
no later than the first Business Day following the day on which Master Servicer
had actual knowledge thereof. Upon receipt of any such notice, Master Servicer
shall withdraw the Unrelated Amounts from the Collection Account, and the same
shall not be treated as Collections on Transferred Receivables and shall not be
subject to the provisions of Section 2.11.
SECTION 2.4 Authorization of Master Servicer. Master Servicer is hereby
authorized to take any and all reasonable steps necessary or desirable and
consistent with the ownership of the Transferred Receivables by Owner and the
pledge of the Transferred Receivables to the Indenture Trustee, in the
determination of Master Servicer, to (a) collect all amounts due under each
Transferred Receivable, including endorsing its name on checks and other
instruments representing Collections on such Transferred Receivable, and
executing and delivering any and all instruments of satisfaction or cancellation
or of partial or full release or discharge and all other comparable instruments
with respect to such Transferred Receivable, and (b) after a Transferred
Receivable is at risk of imminently becoming delinquent or after a Transferred
Receivable becomes delinquent (or if a Transferred Receivable is at risk of
imminently becoming a Defaulted Receivable or after a Transferred Receivable
becomes a Defaulted Receivable) and to the extent permitted under and in
compliance with applicable law and regulations, (i) commence proceedings with
respect to the enforcement of payment of such
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Transferred Receivable and the related Financing Agreement, (ii) adjust, settle
or compromise any payments due thereunder, and (iii) initiate proceedings
against any Collateral Security securing the obligations due under such
Transferred Receivable, and otherwise enforce and exercise rights with respect
to such Collateral Security and the related Financing Agreements, in each case,
consistent with the Credit and Collection Policies, (c) to make withdrawals from
the Collection Account and any Series Account, as set forth in this Agreement,
the Indenture or any Indenture Supplement, (d) to take any action required or
permitted under any enhancement for any Series or class of Notes, as set forth
in this Agreement, the Indenture or any Indenture Supplement and (e) deliver
Instructions and other directions as to the investment of funds credited to the
Trust Accounts on behalf of Owner; provided that such directions will limit the
investment of funds only to Permitted Investments. Owner shall furnish (or cause
to be furnished) Master Servicer with any powers of attorney and other documents
necessary or appropriate to enable Master Servicer to carry out its servicing
and administrative duties hereunder, and Owner shall assist Master Servicer to
the fullest extent to enable Master Servicer to collect the Transferred
Receivables and otherwise discharge its duties hereunder. Upon the request of a
Dealer, and consistent with the Credit and Collection Policies, Master Servicer,
on behalf of Owner, shall permit such Dealer to terminate any agreement
(including any invoice) pursuant to, or under which, such Dealer is obligated to
make payments with respect to any Receivable (a "Contract"); provided, that the
Dealer shall have paid the Termination Amount, which shall constitute and be
treated like Collections in respect of the related Receivable. "Termination
Amount" means, with respect to a Contract, as of any date, the amount that the
related Dealer owes under such Contract on such date, which shall not be less
than, with respect to a (i) a Contract with prepayment rights, one hundred
percent (100%) of the principal and accrued interest thereunder plus any premium
set forth in such Contract, and (ii) a Contract without prepayment rights, one
hundred percent (100%) of the principal and accrued interest thereunder plus any
premium set forth in the related Credit and Collection Policies.
SECTION 2.5 Servicing Fees. As compensation for its servicing activities
and as reimbursement for its reasonable expenses in connection therewith, Master
Servicer shall be entitled to receive a monthly servicing fee in respect of any
Monthly Period (or portion thereof) prior to the termination of Master
Servicer's obligations under this Agreement (the "Monthly Servicing Fee"). The
Monthly Servicing Fee for each Monthly Period shall equal one-twelfth of the
product of (a) the total outstanding balance of Transferred Receivables that are
Principal Receivables as of the beginning of the prior Monthly Period and (b)
two percent (2%). The share of the Monthly Servicing Fee allocable to each
Series of Notes shall be payable on the dates and in the amounts specified in
the related Indenture Supplement. Owner shall be obligated to pay the excess of
the Monthly Servicing Fee over the portions allocated as specified above. Master
Servicer shall be required to pay for all expenses incurred by it in connection
with its activities hereunder (including any payments to accountants, counsel or
any other Person, but not including federal, state, local income or franchise
taxes of Owner) and shall not be entitled to any payment or reimbursement of
those expenses other than the Monthly Servicing Fees.
SECTION 2.6 Covenants of Master Servicer. Master Servicer covenants and
agrees that from and after the Closing Date and until the date on which the
outstanding balances of all Transferred Receivables have been reduced to zero:
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(a) Ownership of Transferred Receivables. Master Servicer shall
identify the Transferred Receivables clearly and unambiguously in its
Servicing Records to reflect that the Transferred Receivables are owned by
Owner.
(b) Compliance with Requirements of Law. Master Servicer shall duly
satisfy all obligations on its part to be fulfilled under or in connection
with the Transferred Receivables and the related Accounts, will maintain in
effect all qualifications required under Requirements of Law in order to
properly service the Transferred Receivables and the related Accounts and
will comply in all material respects with all other Requirements of Law in
connection with servicing the Transferred Receivables and the related
Accounts, the failure to comply with which would have a Material Adverse
Effect.
(c) No Rescission or Cancellation. Master Servicer shall not permit
any rescission or cancellation of a Transferred Receivable except as
ordered by a court of competent jurisdiction or other Governmental
Authority or in the ordinary course of its business and in accordance with
the Credit and Collection Policies. Master Servicer shall reflect any such
rescission or cancellation in its computer file related to the Accounts.
If Master Servicer breaches either of the covenants contained in paragraph
(b) or (c) with respect to any Transferred Receivable or the related Account,
and as a result thereof, Owner's rights in, to or under any Transferred
Receivable(s) in the related Account or the proceeds of such Transferred
Receivable are materially impaired or such proceeds are not available for any
reason to Owner free and clear of any Lien, then no later than the expiration of
sixty (60) days from the earlier to occur of the discovery of such event by
Master Servicer, or receipt by Master Servicer of notice of such event given by
Owner, all Transferred Receivables in the Account or Accounts to which such
event relates shall be assigned to Master Servicer as set forth below; provided
that such Transferred Receivables will not be assigned to Master Servicer if, on
any day prior to the end of such sixty (60) day period, (i) the relevant breach
shall have been cured and the covenant shall have been complied with in all
material respects and (ii) Master Servicer shall have delivered an Officer's
Certificate describing the nature of such breach and the manner in which such
breach was cured.
Master Servicer shall effect such assignment by paying Owner in immediately
available funds prior to the related Payment Date in an amount equal to the
amount of such Transferred Receivables, which deposit shall be considered a
Collection with respect to such Receivables.
Upon each such assignment to Master Servicer, Owner shall automatically and
without further action be deemed to transfer, assign, set over and otherwise
convey to Master Servicer, without recourse, representation or warranty all
right, title and interest of Owner in and to such Transferred Receivables, all
moneys due or to become due and all amounts received with respect thereto and
all proceeds thereof. Owner shall execute such documents and instruments of
transfer or assignment and take such other actions as shall be reasonably
requested by Master Servicer to effect the conveyance of any such Transferred
Receivables pursuant to this Section.
SECTION 2.7 Reporting Requirements.
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(a) Master Servicer hereby agrees that, from and after the Closing
Date and until the date on which the outstanding balances of all
Transferred Receivables have been reduced to zero, it shall deliver or
cause to be delivered financial statements, notices, and other information
(including the reports required by Sections 2.8 and 2.9) at the times, to
the Persons and S&P and in a manner set forth in Schedule 2.7.
(b) Master Servicer shall deliver Instructions on behalf of Owner, and
shall direct Custodian as to the investment of funds credited to the Trust
Accounts; provided that Servicer will direct Custodian to invest only in
Permitted Investments.
SECTION 2.8 Annual Master Servicer's Certificate.
(a) Master Servicer shall deliver to Owner on or before the 90th day
following the end of each fiscal year of the Servicer, an Officer's
Certificate of Master Servicer providing such information as is required
under Item 1123 of Regulation AB of the Securities Act and the Exchange
Act.
(b) Master Servicer shall deliver to Owner on or before the 90th day
following the end of each fiscal year of Master Servicer a report regarding
Master Servicer's assessment of compliance with the applicable servicing
criteria specified in Item 1122 of Regulation AB during the immediately
preceding fiscal year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act.
SECTION 2.9 Annual Independent Public Accountants' Servicing Report. On or
before the 90th day following the end of each fiscal year of Master Servicer,
Master Servicer shall cause a firm of nationally recognized independent public
accountants (who may also render other services to Master Servicer) to furnish a
report to the Owner that attests to, and reports on, the Servicer's assessment
delivered pursuant to Section 2.8, which attestation report shall be made in
accordance with the requirements of Rule 15d-18 of the Exchange Act. The
certification required by this paragraph may be replaced, at Master Servicer's
option, by any similar certification using standards which are now or in the
future in use by servicers of comparable assets and which in any event comply
with any rule, regulation, "no-action" letter or similar guidance promulgated by
the Securities and Exchange Commission.
SECTION 2.10 Notices to Transferor. If GE Capital is no longer acting as
Master Servicer, any Successor Master Servicer appointed pursuant to Section 6.2
shall deliver or make available to Owner each certificate and report required to
be prepared, forwarded or delivered thereafter pursuant to Sections 2.7, 2.8 and
2.9.
SECTION 2.11 Collections. Master Servicer shall apply all Collections for
each Monthly Period as described in the Indenture and each Indenture Supplement.
SECTION 2.12 Allocations and Disbursements. With respect to each Series,
Master Servicer shall make the allocations and disbursements for such Series on
behalf of the Owner as is required to be made by the Owner under the terms of
the Indenture and the Indenture Supplement for such Series.
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SECTION 2.13 New Series. Pursuant to one or more Indenture Supplements,
Owner may issue one or more new Series of Notes (a "New Issuance"), as more
fully described in the Indenture. To enable Master Servicer to perform its
obligations pursuant to Sections 2.11 and 2.12, Owner shall give reasonable
prior notice to Master Servicer of each New Issuance and shall provide Master
Servicer an opportunity to review and comment upon each Indenture Supplement.
All outstanding Series shall be equally and ratably entitled as provided herein
to the benefits of this Agreement without preference, priority or distinction,
all in accordance with the terms and provisions of this Agreement except, with
respect to any Series, as provided in the related Indenture Supplement.
SECTION 2.14 Servicer Advances. On each Transfer Date, the Master Servicer
shall have the right, but not the obligation, to make an advance to the
Collection Account (each such advance, a "Servicer Advance") in an amount equal
to the lesser of (a) the amount of principal and interest payable but not paid
during the preceding Monthly Period by Dealers in respect of Delinquent
Receivables owned by the Issuer and (b) the Payment Date Shortfall for the
related Payment Date. The Master Servicer shall not make a Servicer Advance in
respect of a Delinquent Receivable if the Master Servicer does not reasonably
believe that future collections on such Delinquent Receivable shall equal or
exceed the amount of such Servicer Advance (and interest on such Servicer
Advance). Each Servicer Advance shall bear interest on each day until repaid in
full at a rate per annum equal to the weighted average interest rate on the
Notes that are Outstanding on such day. Servicer Advances shall be reimbursed
after the Issuer has paid amounts owing to the Indenture Trustee (up to $25,000
for each calendar year), the Trustee (up to $25,000 for each calendar year) and
the Administrator (up to $25,000 for each calendar year), but prior to payments
of principal and interest on the Notes.
As used in this Section 2.14, the following terms shall have the meanings
set forth below:
"Delinquent Receivable" shall mean a Receivable for which any payment of
principal or interest by the related Dealer is more than one (1) day past due
and less than thirty (30) days past due; provided that no Defaulted Receivable,
Ineligible Receivable (as defined in the First Tier Agreement) or Designated
Ineligible Receivable (as defined in the First Tier Agreement) shall be
considered to be a Delinquent Receivable for purposes of this definition.
"Payment Date Shortfall" means, on any Payment Date (determined as of the
preceding Transfer Date) the sum, for all Indenture Supplements, of the excess,
if any, of (a) the amount that is payable, from Series Accounts established
under such Indenture Supplement on such Payment Date, to the Indenture Trustee,
the Trustee, the Administrator and the Noteholders, over (b) the amount of funds
that are available pursuant to such Indenture Supplements (without giving effect
to any Servicer Advance) to make the payments contemplated by clause (a) of this
sentence.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of Master Servicer. Master
Servicer represents and warrants to Owner as of the date hereof and as of each
Series Closing Date:
(a) It is duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation and is duly qualified to do
business, and is in good standing, in each jurisdiction in which the
servicing of the Transferred Receivables hereunder requires it to be so
qualified, except where the failure to comply would not reasonably be
expected to have a Material Adverse Effect.
(b) It has the power and authority to execute and deliver this
Agreement and to perform its obligations contemplated hereby.
(c) This Agreement has been duly authorized, executed and delivered by
Master Servicer and constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms, subject to any
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the
enforceability of creditors' rights generally and general equitable
principles, whether applied in a proceeding at law or in equity.
(d) No consent of, notice to, filing with or permits, qualifications
or other action by any Governmental Authority or any other party is
required for the due execution, delivery and performance by Master Servicer
of this Agreement, other than consents, notices, filings and other actions
which have been obtained or made or where the failure to obtain such
consent or take such action, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.
(e) There is no pending or, to its actual knowledge, threatened
Litigation of a material nature against or affecting it in any court or
tribunal, before any arbitrator of any kind or before or by any
Governmental Authority (i) asserting the invalidity of this Agreement, or
(ii) seeking any determination or ruling that might materially and
adversely affect the validity or enforceability of this Agreement.
(f) Master Servicer (or a Sub-Servicer on its behalf) has in its
possession all original copies of the Financing Agreements that evidence
the Receivables. Such Financing Agreements do not have any marks or
notations indicating that they have been pledged, assigned or otherwise
conveyed to any Person, other than pursuant to the Related Documents.
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ARTICLE IV
ADDITIONAL MATTERS RELATING TO MASTER SERVICER
SECTION 4.1 Covenants of Master Servicer Regarding the Transferred
Receivables.
(a) Maintenance of Records and Books of Account. Master Servicer shall
maintain and implement administrative and operating procedures (including
the ability to recreate records evidencing the Transferred Receivables in
the event of the destruction of the originals thereof), and keep and
maintain all documents, books, computer records and other information,
reasonably necessary or advisable for the collection of all the Transferred
Receivables. Such documents, books and computer records shall reflect all
facts giving rise to the Transferred Receivables, all payments and credits
with respect thereto, and such documents, books and computer records shall
indicate the interests of Owner in the Transferred Receivables.
(b) Servicer Default. If a Servicer Default shall have occurred and be
continuing, promptly upon request therefor, Master Servicer shall deliver
to Owner records reflecting activity through the close of business on the
Business Day immediately preceding the Servicer Default. Upon the
occurrence and during the continuation of a Servicer Default, Master
Servicer shall (i) deliver and turn over to Owner or to its
representatives, or at the option of Owner shall provide Owner its
representatives with access to, at any time, on demand of Owner, all of
Master Servicer's facilities, personnel, books and records pertaining to
the Transferred Receivables, including all Records, and (ii) allow Owner to
occupy the premises of Master Servicer where such books, records and
Records are maintained, and utilize such premises, the equipment thereon
and any personnel of Master Servicer Owner may wish to employ to
administer, service and collect the Transferred Receivables.
(c) Notice of Adverse Claim. Master Servicer shall advise Owner
promptly, in reasonable detail, (i) of any Lien (other than a "Permitted
Encumbrance" as such term is defined in the Indenture) known to it made or
asserted against any Transferred Receivable, and (ii) of the occurrence of
any event known to it which would have a material adverse effect on the
aggregate value of the Transferred Receivables.
(d) Further Assurances. Master Servicer shall furnish to Owner from
time to time such statements and schedules further identifying and
describing the Transferred Receivables and such other reports in connection
with the Transferred Receivables as Owner may reasonably request, all in
reasonable detail.
(e) Maintenance of Perfection and Priority. Master Servicer shall take
such action, or execute and deliver such instruments as may be necessary or
advisable to maintain and perfect, as a first priority interest, Owner's
interests in the Transferred Receivables.
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SECTION 4.2 Merger or Consolidation of, or Assumption of the Obligations of
Master Servicer.
(a) Master Servicer shall not consolidate with or merge into any other
Person or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(i) Master Servicer shall have provided prior written notice of
such proposed consolidation or merger to Owner (and, if Owner has not
notified each Rating Agency thereof, Master Servicer shall do so);
(ii) the Person formed by such consolidation or into which Master
Servicer is merged or the Person which acquires by conveyance or
transfer the properties and assets of Master Servicer substantially as
an entirety shall be a corporation or other entity organized and
existing under the laws of the United States of America or any State
or the District of Columbia and, if Master Servicer is not the
surviving entity, shall expressly assume, by an agreement supplemental
hereto, executed and delivered to Owner in form satisfactory to Owner,
the performance of every covenant and obligation of Master Servicer
hereunder;
(iii) Master Servicer has delivered to Owner (A) an Officer's
Certificate stating that such consolidation, merger, conveyance or
transfer and such supplemental agreement comply with this Section and
that all conditions precedent herein provided for relating to such
transaction have been complied with, and (B) an Opinion of Counsel to
the effect that such supplemental agreement is a valid and binding
obligation of such surviving entity enforceable against such surviving
entity in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
from time to time in effect and except as such enforceability may be
limited by general principles of equity (whether considered in a suit
at law or in equity); and
(iv) either (x) the Person formed by such consolidation or into
which Master Servicer is merged or the Person which acquired by
conveyance or transfer the properties and assets of Master Servicer
substantially as an entirety shall be an Eligible Servicer (taking
into account, in making such determination, the experience and
operations of the predecessor Master Servicer) or (y) upon the
effectiveness of such consolidation, merger, conveyance or transfer, a
Successor Master Servicer shall have assumed the obligations of Master
Servicer in accordance with this Agreement.
(b) This Section 4.2 shall not be construed to prohibit or in any way
limit Master Servicer's ability to effectuate any consolidation or merger
pursuant to which Master Servicer would be the surviving entity.
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SECTION 4.3 Access to Certain Documentation and Information Regarding the
Receivables. Master Servicer shall provide to Owner or its designees access to
the documentation regarding the Accounts and the Transferred Receivables in such
cases where Owner or such designee is required in connection with the
enforcement of the rights of Owner or any of its creditors, or by applicable
statutes or regulations to review such documentation, such access being afforded
without charge but only (i) upon reasonable request, (ii) during normal business
hours, (iii) subject to Master Servicer's normal security and confidentiality
procedures and (iv) at offices designated by Master Servicer. Nothing in this
Section 4.3 shall derogate from the obligation of any Person to observe any
applicable law prohibiting disclosure of information regarding the Dealers (or
customers of Dealers), and the failure of Master Servicer to provide access as
provided in this Section 4.3 as a result of such obligation shall not constitute
a breach of this Section 4.3.
ARTICLE V
SERVICER DEFAULTS
SECTION 5.1 Servicer Defaults. If any of the following events (each, a
"Servicer Default") shall occur (regardless of the reason therefor) with respect
to Master Servicer:
(a) any failure by Master Servicer to make any payment, transfer or
deposit on or before the date occurring five (5) Business Days after the
date such payment, transfer or deposit is required to be made or given by
Master Servicer, as the case may be; provided, that, if such failure could
not have been prevented by the exercise of reasonable due diligence by
Master Servicer and such failure was caused by an act of God or other
similar occurrence, then a Servicer Default shall not be deemed to have
occurred under this Section 5.1(a) until thirty-five (35) Business Days
after the date of such failure;
(b) failure on the part of Master Servicer duly to observe or perform
in any material respect any other covenants or agreements of Master
Servicer set forth in this Agreement which has a material adverse effect on
Owner, 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 Master Servicer by Owner; provided, that,
if such failure could not have been prevented by the exercise of reasonable
due diligence by Master Servicer and such failure was caused by an act of
God or other similar occurrence, then a Servicer Default shall not be
deemed to have occurred under this Section 5.1(b) until one hundred twenty
(120) days after the date of such failure;
(c) Master Servicer delegates its duties, except as specifically
permitted under Section 2.1, and such delegation continues for fifteen (15)
days after written notice to Master Servicer by Owner;
(d) any representation, warranty or certification made by Master
Servicer in this Agreement or in any certificate delivered pursuant to this
Agreement shall prove to have been incorrect when made, which has a
material adverse effect on Owner and which
19
continues to be incorrect in any material respect for a period of sixty
(60) days after the date on which written notice of such error or defect,
requiring the same to be corrected or remedied, shall have been given to
Master Servicer by Owner; provided, that, if the error or defect could not
have been prevented by the exercise of reasonable due diligence by Master
Servicer and such error or defect was caused by an act of God or other
similar occurrence, then Master Servicer shall have an additional sixty
(60) days to cure the default; or
(e) Master Servicer shall fail generally to, or admit in writing its
inability to, pay its debts as they become due; or a proceeding shall have
been instituted in a court having jurisdiction in the premises seeking a
decree or order for relief in respect of Master Servicer in an involuntary
case under any Debtor Relief Law, or for the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator, conservator or
other similar official of Master Servicer or for any substantial part of
its property, or for the winding-up or liquidation of its affairs and, if
instituted against Master Servicer, any such proceeding shall continue
undismissed or unstayed and in effect, for a period of sixty (60)
consecutive days, or any of the actions sought in such proceeding shall
occur; or the commencement by Master Servicer, of a voluntary case under
any Debtor Relief Law, or such Person's consent to the entry of an order
for relief in an involuntary case under any Debtor Relief Law, or consent
to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator, conservator or other similar
official of such Person or for any substantial part of its property, or any
general assignment for the benefit of creditors; or Master Servicer shall
have taken any corporate action in furtherance of any of the foregoing
actions;
then, in any such event, Owner may, by delivery of a Servicer Termination Notice
to Master Servicer, terminate the servicing responsibilities of Master Servicer
hereunder, without demand, protest or further notice of any kind, all of which
are hereby waived by Master Servicer. Upon the delivery of any such notice, all
authority and power of Master Servicer under this Agreement shall pass to and be
vested in the Successor Master Servicer acting pursuant to Section 6.2,
provided, that notwithstanding anything to the contrary herein, Master Servicer
agrees to act as Master Servicer and to continue to follow the procedures set
forth in this Agreement with respect to Collections on the Transferred
Receivables under this Agreement until a Successor Master Servicer has assumed
the responsibilities and obligations of Master Servicer in accordance with
Section 6.2. Master Servicer shall send written notice to Owner and Owner shall
forward such notice to S&P promptly after becoming aware of the occurrence of
any Servicer Default or any event that, with notice or lapse of time or both,
would become a Servicer Default.
ARTICLE VI
SUCCESSOR MASTER SERVICER
SECTION 6.1 Resignation of Master Servicer. Master Servicer may resign only
in the circumstances set forth in clause (a) or (b) of this Section 6.1.
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(a) Master Servicer may resign from its obligations and duties
hereunder upon the written consent of Owner if it finds a replacement
servicer satisfying the eligibility criteria set forth in Section 6.2. No
such resignation shall become effective until the replacement servicer
shall have obtained Owner's approval and appointment pursuant to Section
6.2.
(b) Master Servicer may resign from the obligations and duties hereby
imposed on it upon determination that (i) in the determination of Master
Servicer, the performance of its duties hereunder has become impermissible
under applicable law, and (ii) there is no commercially reasonable action
which Master Servicer could take to make the performance of its duties
hereunder permissible under applicable law. No such resignation shall
become effective until a Successor Master Servicer shall have assumed the
responsibilities and obligations of Master Servicer in accordance with
Section 6.2.
SECTION 6.2 Appointment of the Successor Master Servicer. In connection
with the termination of Master Servicer's responsibilities under this Agreement
pursuant to Section 5.1 or 6.1, Owner shall appoint a successor master servicer
that shall have a long-term debt rating of at least "Baa3" by Xxxxx'x and "BBB-"
by S&P. The successor master servicer shall succeed to all rights and assume all
of the responsibilities, duties and liabilities of Master Servicer under this
Agreement (such successor master servicer being referred to as the "Successor
Master Servicer"); provided, that the Successor Master Servicer shall have no
responsibility for any actions of Master Servicer prior to the date of its
appointment as Successor Master Servicer. The Successor Master Servicer shall
accept its appointment by executing, acknowledging and delivering to Owner an
instrument in form and substance acceptable to Owner. Owner shall provide prior
written notice of such appointment to the Rating Agencies and the Indenture
Trustee.
SECTION 6.3 Duties of Master Servicer. At any time following the
appointment of a Successor Master Servicer:
(a) Master Servicer agrees that it shall terminate its activities as
Master Servicer hereunder in a manner acceptable to Owner so as to
facilitate the transfer of servicing to the Successor Master Servicer,
including timely delivery (i) to Owner of any funds that were required to
be deposited in the Collection Account, and (ii) to the Successor Master
Servicer, at a place selected by the Successor Master Servicer, of all
Servicing Records and other information with respect to the Transferred
Receivables. Master Servicer shall account for all funds and shall execute
and deliver such instruments and do such other things as may reasonably be
required to more fully and definitely vest and confirm in the Successor
Master Servicer all rights, powers, duties, responsibilities, obligations
and liabilities of Master Servicer; and
(b) Master Servicer shall terminate each Sub-Servicing Agreement that
may have been entered into by it and the Successor Master Servicer shall
not be deemed to have assumed any of Master Servicer's interest therein or
to have replaced Master Servicer as a party to any such Sub-Servicing
Agreement.
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SECTION 6.4 Effect of Termination or Resignation. Any termination or
resignation of Master Servicer under this Agreement shall not affect any claims
that Owner may have against Master Servicer for events or actions taken or not
taken by Master Servicer arising prior to any such termination or resignation.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 Indemnities by Master Servicer. Without limiting any other
rights that Owner or its Affiliates or any director, officer, employee, trustee
or agent or incorporator thereof (each a "Servicer Indemnified Person") may have
hereunder or under applicable law, Master Servicer hereby agrees to indemnify
each Servicer Indemnified Person from and against any and all Indemnified
Amounts which may be imposed on, incurred by or asserted against a Servicer
Indemnified Person to the extent arising out of or relating to any material
breach of Master Servicer's obligations under this Agreement; excluding,
however, Indemnified Amounts to the extent resulting from (i) bad faith, gross
negligence or willful misconduct on the part of a Servicer Indemnified Person or
(ii) uncollectible Receivables. Any Indemnified Amounts subject to the
indemnification provisions of this Section 7.1 shall be paid to Servicer
Indemnified Person within ten (10) Business Days following demand therefor.
SECTION 7.2 Limitation of Damages; Indemnified Persons. NO PARTY TO THIS
AGREEMENT SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS AGREEMENT,
ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER
PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF ANY
TRANSACTION CONTEMPLATED HEREUNDER.
SECTION 7.3 Limitation on Liability of Master Servicer and Others. Except
as provided in Section 7.1, neither Master Servicer nor any of the directors,
officers, employees or agents of Master Servicer, in its capacity as Master
Servicer (each a "Master Servicer Related Party") shall be under any liability
to Owner or any other Person for any action taken or for refraining from the
taking of any action in good faith in its capacity as Master Servicer pursuant
to this Agreement; provided, that this provision shall not protect Master
Servicer or any Master Servicer Related Party against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. Master Servicer and any Master Servicer
Related Party may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person (other than Master Servicer)
respecting any matters arising hereunder. Master Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties as Master Servicer in accordance with this Agreement
and which in its reasonable judgment may involve it in any expense or liability.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other parties, or whenever any of the parties desires to give or
serve upon any other parties any communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and shall be deemed to have been validly
served, given or delivered (a) upon the earlier of actual receipt and three (3)
Business Days after deposit in the United States Mail, registered or certified
mail, return receipt requested, with proper postage prepaid, (b) upon
transmission, when sent by facsimile or other electronic transmission (with such
transmission promptly confirmed by delivery of a copy by personal delivery or
United States Mail as otherwise provided in this Section 8.1), (c) one (1)
Business Day after deposit with a reputable overnight courier with all charges
prepaid or (d) when delivered, if hand-delivered by messenger, all of which
shall be addressed to the party to be notified and sent to the address or
facsimile number indicated below or to such other address (or facsimile number)
as may be substituted by notice given as herein provided. The giving of any
notice required hereunder may be waived in writing by the party entitled to
receive such notice. Failure or delay in delivering copies of any notice,
demand, request, consent, approval, declaration or other communication to any
Person designated in any written notice provided hereunder to receive copies
shall in no way adversely affect the effectiveness of such notice, demand,
request, consent, approval, declaration or other communication. Notwithstanding
the foregoing, whenever it is provided herein that a notice is to be given to
any other party hereto by a specific time, such notice shall only be effective
if actually received by such party prior to such time, and if such notice is
received after such time or on a day other than a Business Day, such notice
shall only be effective on the immediately succeeding Business Day.
If to Master Servicer:
General Electric Capital Corporation
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx XX 00000
Attn: Capital Market, Operations
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Owner:
GE Dealer Floorplan Master Note Trust
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx, Xxxxx 8 West (ABS Unit)
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000 or 3883
23
with a copy to:
General Electric Capital Corporation, as Administrator
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Capital Market, Operations
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SECTION 8.2 Binding Effect; Assignability. This Agreement shall be binding
upon and inure to the benefit of Owner and Master Servicer and their respective
successors and permitted assigns. Except as set forth in Section 2.1, or Article
VI, Master Servicer may not assign, transfer, hypothecate or otherwise convey
any of its rights or obligations hereunder or interests herein without the
express prior written consent of Owner and satisfaction of the S&P Condition.
Any such purported assignment, transfer, hypothecation or other conveyance by
Master Servicer without the prior express written consent of Owner shall be
void. Owner may, at any time, assign any of its rights and obligations under
this Agreement to any Person and any such assignee may further assign at any
time its rights and obligations under this Agreement, in each case, without the
consent of Master Servicer. Each of Owner and Master Servicer acknowledges and
agrees that, upon any such assignment, the assignee thereof may enforce
directly, all of the obligations of Owner or Master Servicer hereunder, as
applicable.
SECTION 8.3 Termination; Survival of Obligations. This Agreement shall
create and constitute the continuing obligations of the parties hereto in
accordance with its terms, and shall remain in full force and effect until the
date on which the outstanding balances of all Transferred Receivables have been
reduced to zero; provided, that the rights and remedies provided for herein with
respect to any breach of any representation or warranty made by Master Servicer
pursuant to Article III, the indemnification and payment provisions of Article
VII and Sections 8.4 and 8.12 shall be continuing and shall survive such
reduction.
SECTION 8.4 No Proceedings. Master Servicer hereby agrees that, from and
after the Closing Date and until the date one year plus one day following the
date on which the outstanding balances of all Transferred Receivables have been
reduced to zero, it will not, directly or indirectly, institute or cause to be
instituted against Owner any proceeding of the type referred to in Section
5.1(e); provided that the foregoing shall not in any way limit Master Servicer's
right to pursue any other creditor rights or remedies that Master Servicer may
have for claims against Owner.
SECTION 8.5 Complete Agreement; Modification of Agreement. This Agreement
constitutes the complete agreement among the parties hereto with respect to the
subject matter hereof, supersedes all prior agreements and understandings
relating to the subject matter hereof, and may not be modified, altered or
amended except as set forth in Section 8.6.
SECTION 8.6 Amendments and Waivers. No amendment, modification, termination
or waiver of any provision of this Agreement, or any consent to any departure by
any party hereto therefrom, shall in any event be effective unless the same
shall be in writing and signed by each of the parties hereto and the S&P
Condition shall have been satisfied.
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SECTION 8.7 No Waiver; Remedies. The failure by Owner, at any time or
times, to require strict performance by Master Servicer of any provision of this
Agreement shall not waive, affect or diminish any right of Owner thereafter to
demand strict compliance and performance herewith. Any suspension or waiver of
any breach or default hereunder shall not suspend, waive or affect any other
breach or default whether the same is prior or subsequent thereto and whether
the same or of a different type. None of the undertakings, agreements,
warranties, covenants and representations of Master Servicer contained in this
Agreement and no breach or default by Master Servicer hereunder, shall be deemed
to have been suspended or waived by Owner unless such waiver or suspension is by
an instrument in writing signed by an officer or other duly authorized signatory
of Owner and directed to Master Servicer specifying such suspension or waiver
and the S&P Condition shall have been satisfied. The rights and remedies of
Owner under this Agreement shall be cumulative and nonexclusive of any other
rights and remedies that Owner may have under any other agreement, including the
other Related Documents, by operation of law or otherwise.
SECTION 8.8 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL
RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK (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 AGREEMENT OR TO ANY MATTER ARISING OUT OF
OR RELATING TO THIS AGREEMENT; PROVIDED, THAT EACH PARTY HERETO
ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY. 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
25
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS
DETERMINED IN ACCORDANCE WITH SECTION 8.1 AND THAT SERVICE SO MADE SHALL BE
DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR
THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID.
NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED
AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO
APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND
OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 8.9 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement. Executed counterparts of this Agreement may be
delivered electronically.
SECTION 8.10 Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
SECTION 8.11 Section Titles. The section titles and table of contents
contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the
parties hereto.
SECTION 8.12 Limited Recourse.
(a) The obligations of Owner under this Agreement are solely the
obligations of Owner. No recourse shall be had for any obligation or claim
arising out of or based upon this Agreement against any incorporator,
shareholder, officer, manager, member or director, past, present or future,
of Owner or of any successor or of its constituent members or its other
Affiliates, either directly or through Owner or any successor, whether by
virtue of any constitution, statute or rule of law or by the enforcement of
any
26
assessment or penalty or otherwise, all such liability being, by acceptance
hereof and as part of the consideration for the acceptance hereof,
expressly waived and released. Any accrued obligations owing by Owner under
this Agreement shall be payable by Owner solely to the extent that funds
are available therefor from time to time in accordance with the provisions
of Section 2.11 and the priority of payments in the applicable Indenture
Supplement (provided that such accrued obligations shall not be
extinguished until paid in full).
(b) The obligations of Master Servicer under this Agreement are solely
the obligations of Master Servicer. No recourse shall be had for the
payment of any amount owing hereunder or any other obligation or claim
arising out of or based upon this Agreement, against any shareholder,
employee, officer, manager, member or director, agent or organizer, past,
present or future, of Master Servicer or of any successor thereto, either
directly or through Master Servicer or any successor thereto, whether by
virtue of any constitution, statute or rule of law or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by
acceptance hereof and as part of the consideration for the acceptance
hereof, expressly waived and released.
SECTION 8.13 Further Assurances. Master Servicer shall, at its sole cost
and expense, promptly and duly execute and deliver any and all further
instruments and documents, and take such further action, that may be necessary
or desirable or that Owner may request to enable Owner to exercise and enforce
its rights under this Agreement or otherwise carry out more effectively the
provisions and purposes of this Agreement.
SECTION 8.14 Pledge of Assets. Master Servicer hereby acknowledges that the
Owner has granted a security interest in the Transferred Receivables to the
Indenture Trustee under the Indenture, and hereby waives any defenses it may
have against the Indenture Trustee for the enforcement of this Agreement in the
event of foreclosure by the Indenture Trustee. Accordingly, the parties hereto
agree that, in the event of foreclosure by the Indenture Trustee, the Indenture
Trustee shall have the right to enforce this Agreement and the full performance
by the parties hereto of their obligations and undertakings set forth herein.
Master Servicer hereby agrees to deliver to the Indenture Trustee a copy of all
notices to be delivered by Master Servicer to Owner hereunder.
SECTION 8.15 Waiver of Setoff. Master Servicer hereby waives any right of
setoff that it may have for amounts owing to it under or in connection with this
Agreement.
SECTION 8.16 Limitation of Liability of the Trustee. Notwithstanding
anything contained herein to the contrary, this instrument has been signed by
The Bank of New York (Delaware), not in its individual capacity but solely in
its capacity as Trustee of Owner, and in no event shall The Bank of New York
(Delaware), in its individual capacity, or any beneficial owner of Owner have
any liability for the representations, warranties, covenants, agreements or
other obligations of Owner hereunder, as to all of which recourse shall be had
solely to the assets of Owner. For all purposes of this Agreement, in the
performance of any duties or obligations of Owner thereunder, the Trustee shall
be subject to, and entitled to the benefits of, the terms and provisions of the
Trust Agreement.
27
SECTION 8.17 Continued Effectiveness of the Existing Servicing Agreement.
As amended and restated hereby, the Existing Servicing Agreement shall continue
to be in full force and effect and is hereby ratified and confirmed in all
respects.
[Signatures Follow]
28
IN WITNESS WHEREOF, the parties have caused this Servicing Agreement to be
executed as of the date first above written.
GE DEALER FLOORPLAN MASTER NOTE TRUST,
as Owner
By: The Bank of New York (Delaware),
not in its individual capacity, but
solely as Trustee on behalf of Owner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-1
GENERAL ELECTRIC CAPITAL CORPORATION,
as Master Servicer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-2
SCHEDULE 2.7
REPORTING REQUIREMENTS
Master Servicer shall prepare a monthly report on behalf of Owner for each
Series that is outstanding in the manner described in the Indenture Supplement
for such Series. Master Servicer shall also provide the Indenture Trustee with
an electronic or written form of such report for each such Series for delivery
as set forth in the Indenture Supplement for such Series.
2.7
