EXHIBIT 99.1
PERFORMANCE GUARANTY
December 31, 2002
Wilmington Trust Company, as Trustee
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Re: GE Commercial Distribution Finance Corporation
Ladies and Gentlemen:
Reference is hereby made to (i) the Amended and Restated Pooling and
Servicing Agreement, dated as of April 1, 2000, as amended as of December 31,
2002 (as the same may be further amended, supplemented or modified from time to
time, the "PSA"), among CDF Financing, L.L.C. ("LLC"), as Seller, GE Commercial
Distribution Finance Corporation ("CDF"), as Servicer and Wilmington Trust
Company, as Trustee (in such capacity, together with any successor in such
capacity, the "Trustee") and (ii) the Receivables Contribution and Sale
Agreement, dated as of December 1, 1993, amended and restated as of March 1,
1994, amended as of January 24, 1996, amended and restated as of October 1, 1996
and amended as of December 31, 2002 (as the same may be further amended,
supplemented or modified from time to time, the "Receivables Contribution and
Sale Agreement"), among CDF, as Seller (in such capacity, the "Originator"), and
Deutsche Floorplan Receivables, L.P. ("Limited Partnership"). Unless the context
otherwise requires, capitalized terms used in this performance guaranty
("Performance Guaranty") and not otherwise defined herein shall have the
meanings provided in the PSA or the Receivables Contribution and Sale Agreement,
as applicable.
1. Guaranty. General Electric Capital Corporation ("GECC" or
"Performance Guarantor") hereby unconditionally and irrevocably undertakes and
agrees with and for the benefit of the Trustee to cause the due performance and
observance by the Servicer (for so long as CDF or any Affiliate of GECC is the
Servicer under the PSA) and the Originator of all of the terms, covenants,
agreements and undertakings on the part of the Servicer, to be performed or
observed by the Servicer under the PSA and all of the Supplements, and on the
part of the Originator to be performed and observed by the Originator under the
Receivables Contribution and Sale Agreement (the PSA, the Supplements, and the
Receivables Contribution and Sale Agreement, altogether, the "Agreements"), in
accordance with the terms thereof including any agreement of the Servicer or
Originator to pay any money under the Agreements (such terms, covenants,
agreements and undertakings on the part of the Servicer and the Originator to be
performed or observed by the Servicer and the Originator being collectively
called the "Guaranteed Obligations"). In the event that the Servicer or the
Originator, as the case may be, shall fail in any manner whatsoever to perform
or observe any of their respective Guaranteed Obligations when the same shall be
required to be performed or observed by the Servicer or the Originator, as the
case may be, under the applicable Agreements (after
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giving effect to any cure period), then the Performance Guarantor will itself
duly perform or observe, or cause to be duly performed or observed, such
Guaranteed Obligation, and it shall not be a condition to the accrual of the
obligation of the Performance Guarantor hereunder to perform or observe any
Guaranteed Obligation (or to cause the same to be performed or observed) that
the Trustee shall have first made any request of or demand upon or given any
notice to the Performance Guarantor or to the Servicer or the Originator or
their successors or assigns, or have instituted any action or proceeding against
the Performance Guarantor or the Servicer or the Originator or their successors
or assigns in respect thereof. Notwithstanding anything to the contrary
contained herein, the obligations of the Performance Guarantor hereunder in
respect of the Servicer and the Originator are expressly limited to the
Guaranteed Obligations.
2. Enforcement. The Trustee may proceed to enforce the obligations of
the Performance Guarantor under this Performance Guaranty without first pursuing
or exhausting any right or remedy which the Trustee may have against the
Servicer, the Originator, any other Person or any collateral.
3. Obligations Absolute. To the extent permitted by law, the
Performance Guarantor will perform its obligations under this Performance
Guaranty regardless of any law now or hereafter in effect in any jurisdiction
affecting any of the terms of this Performance Guaranty or the Agreements or any
document delivered in connection with this Performance Guaranty and the
Agreements or the rights of the Trustee with respect thereto. The obligations of
the Performance Guarantor under this Performance Guaranty shall be absolute and
unconditional irrespective of:
(i) any lack of validity or enforceability or the discharge or
disaffirmance (by any Person, including a trustee in bankruptcy) of the
Guaranteed Obligations, this Performance Guaranty, the Agreements or any
Receivable or any document or any other agreement or instrument relating
thereto;
(ii) any exchange, release or non-perfection of any collateral or any
release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Guaranteed Obligations;
(iii) any failure to obtain any authorization or approval from or other
action by, or to notify or file with, any Governmental Authority or regulatory
body required in connection with the performance of such obligations by the
Servicer or the Originator; or
(iv) any impossibility or impracticality of performance, illegality,
force majeure, any act of any governmental or any other circumstance which might
constitute a legal or equitable defense available to, or a discharge of, the
Servicer, the Originator or the Performance Guarantor, or any other
circumstance, event or happening whatsoever, whether foreseen or unforeseen and
whether similar or dissimilar to anything referred to above in this Performance
Guaranty.
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The Performance Guarantor further agrees that its obligations under
this Performance Guaranty shall not be limited by any valuation or estimation
made in connection with any proceedings involving the Servicer, the Originator
or the Performance Guarantor filed under Title 11 of the United States Code, as
amended (the "Bankruptcy Code"), whether pursuant to Section 502 of the
Bankruptcy Code or any other Section thereof. The Performance Guarantor further
agrees that the Trustee shall not be under any obligation to xxxxxxxx any assets
in favor of or against or in payment of any or all of the Guaranteed
Obligations. The Performance Guarantor further agrees that, to the extent that a
payment or payments are made by or on behalf of the Servicer or the Originator,
which payment or payments or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to the Servicer, the Originator, or the estate, trustee, receiver or any
other party relating to the Servicer or the Originator, including the
Performance Guarantor, under any bankruptcy law, state or federal law, common
law or equitable cause then to the extent of such payment or repayment, the
Guaranteed Obligations or part thereof which had been paid, reduced or satisfied
by such amount shall be reinstated and continued in full force and effect an of
the date such initial payments, reduction or satisfaction occurred. The
obligations of the Performance Guarantor under this Performance Guaranty shall
not be discharged except by performance as provided herein.
4. Irrevocability. The Performance Guarantor agrees that its
obligations under this Performance Guaranty shall be irrevocable. In the event
that under applicable law (notwithstanding the Performance Guarantor's agreement
regarding the irrevocable nature of its obligations hereunder) the Performance
Guarantor shall have the right to revoke this Performance Guaranty, this
Performance Guaranty shall continue in full force and effect until a written
revocation hereof specifically referring hereto, signed by the Performance
Guarantor, is actually received by the Trustee at the applicable address
determined in accordance with the PSA. Any such revocation shall not affect the
right of the Trustee to enforce its respective rights under this Performance
Guaranty with respect of any Guaranteed Obligation (including any Guaranteed
Obligation that is contingent or unmatured) which arose on or prior to the date
the aforementioned revocation was received by the Trustee. Without limiting the
foregoing, this Performance Guaranty may not be revoked at any time until the
Termination Date for the last outstanding Series occurs.
5. Waiver. The Performance Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations, this Performance Guaranty, the Agreements, and any other
document related thereto and any requirement that the Trustee exhaust any right
or take any action against the Servicer, any other Person or any collateral.
6. Subrogation. The Performance Guarantor will not exercise or assert
any rights which it may acquire by way of subrogation under this Performance
Guaranty unless and until all of the Guaranteed Obligations shall have been paid
and performed in full. If any payment shall be made to the Performance Guarantor
on account of any subrogation rights at any time when all of the Guaranteed
Obligations shall not have been paid and
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performed in full each and every amount so paid will be held in trust for the
benefit of the Trustee and forthwith be paid to the Trustee, in accordance with
this Performance Guaranty and the Agreements, to be credited and applied to the
Guaranteed Obligations to the extent then unsatisfied, in accordance with the
terms of the Agreements. In the event (i) the Performance Guarantor shall have
satisfied any of the Guaranteed Obligations and (ii) all of the Guaranteed
Obligations shall have been paid and performed in full, the Trustee will at the
Performance Guarantor's request and expense, execute and deliver to the
Performance Guarantor appropriate documents, without recourse and without
representation or warranty of any kind, necessary to evidence or confirm the
transfer by way of subrogation to the Performance Guarantor of the rights of the
Trustee with respect to the Guaranteed Obligations to which the Performance
Guarantor shall have become entitled by way of subrogation.
7. Governing Law; Submission to Jurisdiction. (a) THIS PERFORMANCE
GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW
PROVISIONS OF THE STATE OF NEW YORK).
(b) THE PERFORMANCE GUARANTOR 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
PERTAINING TO THIS PERFORMANCE GUARANTY OR TO ANY MATTER ARISING OUT OF OR
RELATING TO THIS PERFORMANCE GUARANTY; PROVIDED, THAT THE PERFORMANCE GUARANTOR
ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED, FURTHER,
THAT NOTHING IN THIS PERFORMANCE GUARANTY SHALL BE DEEMED OR OPERATE TO PRECLUDE
THE TRUSTEE FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER
JURISDICTION TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE TRUSTEE.
THE PERFORMANCE GUARANTOR SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION
IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND THE PERFORMANCE GUARANTOR
HEREBY WAIVES ANY OBJECTION THAT IT 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. THE PERFORMANCE GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS,
COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT
SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED
OR CERTIFIED MAIL ADDRESSED TO THE PERFORMANCE GUARANTOR AND THAT SERVICE SO
MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF THE PERFORMANCE GUARANTOR'S
ACTUAL RECEIPT
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THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE
PREPAID. NOTHING IN THIS PARAGRAPH SHALL AFFECT THE RIGHT OF THE PERFORMANCE
GUARANTOR TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
8. Counterparts. This Performance Guaranty may be executed in two or
more counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
[SIGNATURE FOLLOWS]
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IN WITNESS WHEREOF, the Performance Guarantor has caused this
Performance Guaranty to be duly executed as of the day and year first above
written.
GENERAL ELECTRIC CAPITAL CORPORATION,
as Performance Guarantor
By: ______________________________________
Name: ________________________________
Title: _______________________________
