Exhibit 4.3
TRUST AGREEMENT
OF
GE DEALER FLOORPLAN MASTER NOTE TRUST
THIS TRUST AGREEMENT, is made and entered into as of April 20, 2004 by and
between CDF Funding, Inc., a Delaware corporation (the "Depositor") and The Bank
of New York (Delaware), a Delaware banking corporation, as Owner Trustee (acting
hereunder not in its individual capacity but solely as the "Owner Trustee"). The
Depositor and the Owner Trustee hereby agree as follows:
1. The trust created hereby shall be known as "GE Dealer Floorplan
Master Note Trust" (the "Issuer"), in which name the Owner Trustee may conduct
the business of the Issuer, make and execute contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Owner Trustee the sum of $1.00. The Owner Trustee hereby acknowledges
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Owner Trustee hereby declares that it
will hold the trust estate in trust for the Depositor. It is the intention of
the parties hereto that the Issuer created hereby constitute a statutory trust
under Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code Section 3801 et
seq. and that this document constitute the governing instrument of the Issuer.
The Owner Trustee is hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State substantially in the
form attached hereto as Exhibit A.
3. The Depositor and the Owner Trustee will enter into an amended and
restated Trust Agreement in form and substance satisfactory to each such party
to provide for, among other things, the contemplated operation of the Issuer.
Prior to the execution and delivery of such an amended and restated Trust
Agreement, (i) the Owner Trustee shall not have any duty or obligation hereunder
or with respect to the Issuer or the trust estate, except as expressly set forth
herein and (ii) the Depositor shall take any and all action as may be necessary,
prior to such execution and delivery, including but not limited to, executing
any licenses, consents, approvals or filings on behalf of the Issuer as may be
required by applicable law or otherwise; provided, however, the Owner Trustee
shall not be required to take any action (i) if the Owner Trustee shall
determine, or shall be advised by counsel, that such action is likely to result
in personal liability or is contrary to applicable law or any agreement to which
the Owner Trustee is a party and (ii) unless the Owner Trustee has been provided
indemnity satisfactory to it in its sole discretion. Notwithstanding the
foregoing, the Owner Trustee shall have the power and authority, and is hereby
authorized and empowered, in the name and on behalf of the Issuer, to take all
actions necessary, appropriate, or convenient to effect the transactions
contemplated herein, including but not limited to, executing such licenses,
consents or approvals as are presented to the Owner Trustee by the Depositor in
execution form.
4. (a) Except as otherwise expressly required by Section 3 of this
Trust Agreement, the Owner Trustee shall not have any duty or liability with
respect to the
Trust Agreement
administration of the Issuer, the investment of the Issuer's property or the
payment of dividends or other distributions of income or principal to the
Issuer's beneficiaries, and no implied obligations shall be inferred from this
Trust Agreement on the part of the Owner Trustee. The Owner Trustee shall not be
liable for the acts or omissions of the Depositor or any other person who acts
on behalf of the Issuer nor shall the Owner Trustee be liable for any act or
omission by it in good faith in accordance with the directions of the Depositor.
(b) The Owner Trustee accepts the trusts hereby created and agrees
to perform its duties hereunder with respect to the same but only upon the terms
of this Trust Agreement. The Owner Trustee shall not be personally liable under
any circumstances, except for its own willful misconduct or gross negligence. In
particular, but not by way of limitation:
(i) The Owner Trustee shall not be personally liable for any
error of judgment made in good faith and in the absence of gross negligence by
an officer or employee of the Owner Trustee;
(ii) No provision of this Trust Agreement shall require the
Owner Trustee to expend or risk its personal funds or otherwise incur any
financial liability in the performance of its rights or duties hereunder, if the
Owner Trustee shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured or provided to it;
(iii) Under no circumstance shall the Owner Trustee be
personally liable for any representation, warranty, covenant or indebtedness of
the Issuer;
(iv) The Owner Trustee shall not be personally responsible
for or in respect of the genuineness, form or value of the Trust property, the
validity or sufficiency of this Trust Agreement or for the due execution hereof
by the Depositor;
(v) In the event that the Owner Trustee is unsure of the
course of action to be taken by it hereunder, the Owner Trustee may request
instructions from the Depositor and to the extent the Owner Trustee follows such
instructions in good faith it shall not be liable to any person. In the event
that no instructions are provided within the time requested by the Owner
Trustee, it shall have no duty or liability for its failure to take any action
or for any action it takes in good faith;
(vi) All funds deposited with the Owner Trustee hereunder may
be held in a non-interest bearing trust account and the Owner Trustee shall not
be liable for any interest thereon or for any loss as a result of the investment
thereof at the direction of the Depositor; and
(vii) To the extent that, at law or in equity, the Owner
Trustee has duties and liabilities relating thereto to the Depositor or the
Issuer, the Depositor agrees that such duties and liabilities are replaced by
the terms of this Trust Agreement.
(c) The Owner Trustee shall incur no liability to anyone in acting
upon any document reasonably believed by it to be genuine and reasonably
believed by it to be signed by
2 Trust Agreement
the proper party or parties. The Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter the
manner of ascertainment of which is not specifically prescribed herein, the
Owner Trustee may for all purposes hereof rely on a certificate, signed by the
Depositor, as to such fact or matter, and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
(d) In the exercise or administration of the trusts hereunder, the
Owner Trustee (i) may act directly or, at the expense of the Trust, through
agents or attorneys, and the Owner Trustee shall not be liable for the default
or misconduct of such agents or attorneys if such agents or attorneys shall have
been selected by the Owner Trustee in good faith and in the absence of gross
negligence, and (ii) may, at the expense of the Trust, consult with counsel,
accountants and other experts, and it shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the advice or opinion
of any such counsel, accountants or other experts.
(e) Notwithstanding anything contained herein to the contrary,
neither The Bank of New York (Delaware) nor the Owner Trustee shall be required
to take any action in any jurisdiction other than the State of Delaware if the
taking of such action will (i) require the consent or approval or authorization
or order of or the giving of notice to, or the registration with or the taking
of any other action in respect of, any state or other governmental authority or
agency of any jurisdiction other than the State of Delaware, (ii) result in any
fee, tax or other governmental charge under the laws of any jurisdiction or any
political subdivision thereof in existence becoming payable by The Bank of New
York (Delaware), or (iii) subject The Bank of New York (Delaware) to personal
jurisdiction in any jurisdiction other than the State of Delaware for causes of
action arising from acts unrelated to the consummation of the transactions by
The Bank of New York (Delaware) or the Owner Trustee, as the case may be,
contemplated hereby.
(f) Except as expressly provided in this Section 4, in accepting
and performing the trusts hereby created, the Owner Trustee acts solely as Owner
Trustee hereunder and not in its individual capacity, and all persons having any
claim against the Owner Trustee by reason of the transactions contemplated by
this Trust Agreement shall look only to the Issuer's property for payment or
satisfaction thereof.
5. The Issuer shall (i) compensate the Owner Trustee in accordance with
a separate fee agreement with the Owner Trustee, (ii) reimburse the Owner
Trustee for all reasonable expenses (including reasonable fees and expenses of
counsel and other experts) and (iii) indemnify, defend and hold harmless the
Owner Trustee and any of the officers, directors, employees and agents of the
Owner Trustee (the "Indemnified Persons") from and against any and all losses,
damages, liabilities, claims, actions, suits, costs, expenses, disbursements
(including the reasonable fees and expenses of counsel), taxes and penalties of
any kind and nature whatsoever (collectively, "Expenses"), to the extent that
such Expenses arise out of or are imposed upon or asserted at any time against
such Indemnified Persons with respect to the performance of this Trust
Agreement, the creation, operation or termination of the Issuer or the
3 Trust Agreement
transactions contemplated hereby; provided, however, that the Issuer shall not
be required to indemnify any Indemnified Person for any Expenses which are a
result of the willful misconduct, bad faith or gross negligence of such
Indemnified Person.
6. The Owner Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor. If no
successor has been appointed within thirty days after the giving of notice, the
Owner Trustee may, at the expense of the Issuer, petition a court of competent
jurisdiction to appoint a successor trustee.
7. Upon and in accordance with written instructions from the Depositor
the Owner Trustee shall dissolve, wind-up and terminate the Issuer and file in
accordance with 12 Del. Code ss. 3810 a Certificate of Cancellation.
8. THIS TRUST AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
9. This Trust Agreement may be executed in one or more counterparts,
each of which when so executed shall be an original and all of which when taken
together shall constitute but one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
4 Trust Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
CDF FUNDING, INC., as Depositor
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Trust Agreement
THE BANK OF NEW YORK (DELAWARE),
as Owner Trustee
By: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Sr. Vice President
Trust Agreement
EXHIBIT A
FORM OF CERTIFICATE OF TRUST
OF
GE DEALER FLOORPLAN MASTER NOTE TRUST
THIS CERTIFICATE OF TRUST of GE Dealer Floorplan Master Note Trust (the
"Trust") is being duly executed and filed on behalf of the Trust by the
undersigned, as owner trustee, to form a statutory trust under the Delaware
Statutory Trust Act (12 Del. Code ss. 3801 et. seq.) (the "Act").
1. Name. The name of the statutory trust formed hereby is "GE Dealer
Floorplan Master Note Trust".
2. Delaware Trustee. The name and business address of the owner trustee
of the Trust in the State of Delaware is The Bank of New York (Delaware), Xxxxx
Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Administration.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
THE BANK OF NEW YORK (DELAWARE),
as owner trustee
By:______________________________________
Name:
Title:
