Exhibit 99.5
ORIGINATOR PERFORMANCE GUARANTY
dated as of August 12, 2004
by
GENERAL ELECTRIC CAPITAL CORPORATION,
as Originator Performance Guarantor
Originator Performance Guaranty
TABLE OF CONTENTS
(continued)
PAGE
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ARTICLE I DEFINITIONS AND INTERPRETATION ................................ 1
Section 1.1 Definitions .............................................. 1
Section 1.2 Rules of Construction .................................... 3
ARTICLE II ORIGINATOR PERFORMANCE GUARANTY .............................. 3
Section 2.1 Originator Performance Guaranty .......................... 3
ARTICLE III MISCELLANEOUS ............................................... 7
Section 3.1 Notices .................................................. 7
Section 3.2 Binding Effect; Assignability ............................ 7
Section 3.3 Termination; Survival of Guaranteed Originator Obligations
Upon Facility Termination Date ........................... 8
Section 3.4 Costs, Expenses and Taxes ................................ 8
Section 3.5 No Waiver; Remedies ...................................... 9
Section 3.6 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL .................................................... 9
Section 3.7 Counterparts ............................................. 11
Section 3.8 Severability ............................................. 11
Section 3.9 Section Titles ........................................... ▇▇
-▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, dated as of August 12, 2004 (this
"Guaranty") by GENERAL ELECTRIC CAPITAL CORPORATION ("GE Capital"), a Delaware
corporation, in its capacity as performance guarantor hereunder (in such
capacity, together with its successors and assigns, the "Originator Performance
Guarantor").
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions.
"Administration Agreement" means that certain Administration Agreement
dated as of the August 12, 2004 among the Administrator, the Issuer and the
Trustee.
"Administrator" means GE Capital, in its capacity as Administrator under
the Administration Agreement, or any other Person designated as a successor
Administrator thereunder.
"Bankruptcy Code" means the provisions of Title 11 of the United States
Code, 11 U.S.C. Sections 101, et seq.
"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 Connecticut or the State of Illinois.
"Class" means any class of Notes of any Series.
"Closing Date" means August 12, 2004.
"Collateral" is defined in the Indenture.
"Event of Default" is defined in the Indenture.
"First Tier Agreement" means the Receivables Sale Agreement dated as of
August 12, 2004 among the Originators and the Transferor.
"GE Capital" is defined in the preamble.
"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.
"Guaranteed Originator Obligations" is defined in Section 2.1.
"Guaranty" is defined in the preamble.
"Indenture" means the Master Indenture dated as of August 12, 2004 between
the Trust 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 pursuant to the Indenture.
"Indenture Trustee" means, at any time, the Person acting as indenture
trustee under the Indenture. As of the Closing Date, the Indenture Trustee is
Wilmington Trust Company.
"Issuer" means GE Dealer Floorplan Master Note Trust, a Delaware statutory
trust.
"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.
"Master Servicer" means GE Capital, in its capacity as the master servicer
under the Servicing Agreement, or any other Person designated as a successor
master servicer pursuant to the Servicing Agreement.
"Note" is defined in the Indenture.
"Originator" means each of the Persons from time to time party to the First
Tier Agreement as "Sellers". As of the Closing Date, the only Originators are GE
Commercial Distribution Finance Corporation, Transamerica Commercial Finance
Corporation, and Brunswick Acceptance Company, LLC.
"Originator Performance Guarantor" is defined in the preamble.
"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.
"Related Documents" means, the First Tier Agreement, the Second Tier
Agreement, the Notes, the Trust Agreement, the Administration Agreement, the
Servicing Agreement, this Guaranty, the Indenture, any Indenture Supplement and
including 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 any Person, or any employee of any Person,
and delivered in connection with any of the foregoing or the transactions
contemplated thereby. Any reference in this Guaranty to a Related Document shall
include all Appendices thereto, and all amendments, restatements, supplements or
other modifications thereto, and shall refer to such Related Document as the
same may be in effect at any and all times such reference becomes operative.
"S&P Condition" is defined in the Indenture.
"Second Tier Agreement" means that certain Receivables Purchase and
Contribution Agreement dated as of August 12, 2004, between the Transferor and
the Trust.
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"Series" is defined in the Indenture.
"Series Maturity Date" is defined in the Indenture.
"Servicing Agreement" means that certain Servicing Agreement dated as of
August 12, 2004, between the Master Servicer and the Trust.
"Transferor" means CDF Funding, Inc.
"Transferred Receivable" is defined in the Indenture.
"Trust" means the Issuer.
"Trust Agreement" means that certain Amended and Restated Trust Agreement
dated as August 12, 2004 between the Transferor and the Trustee.
"Trustee" means The Bank of New York (Delaware), not in its individual
capacity but solely as trustee pursuant to the Trust Agreement.
"UCC" means, unless the context otherwise requires, the Uniform Commercial
Code as in effect in the relevant jurisdiction.
Section 1.2 Rules of Construction. All terms defined directly or by
incorporation in this Guaranty shall have the defined meanings when used in any
certificate or other document delivered pursuant hereto unless otherwise defined
therein. For purposes of this Guaranty and all such certificates and other
documents, unless the context otherwise requires: (a) accounting terms not
otherwise defined herein, and accounting terms partly herein 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 year
refer to a calendar month, quarter or year; (c) terms defined in Article 9 of
the UCC and not otherwise defined in herein 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 Guaranty (or
the certificate or other document in which they are used) as a whole and not to
any particular provision of this Guaranty (or such certificate or document); (f)
references to any Section, Schedule or Exhibit are references to Sections,
Schedules and Exhibits in or to this Guaranty (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; (j) references to any Person include that Person's
successors and assigns; and (k) headings are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
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ARTICLE II
ORIGINATOR PERFORMANCE GUARANTY
Section 2.1 Originator Performance Guaranty.
(a) Unconditional Undertaking; Enforcement. The Originator Performance
Guarantor hereby unconditionally and irrevocably undertakes and agrees with
and for the benefit of the Issuer to cause the due performance and
observance by each Originator of all of the terms, covenants, conditions,
agreements and undertakings on the part of such Originator, to be performed
or observed under the First Tier Agreement or any document delivered in
connection with the First Tier Agreement in accordance with the terms
hereof and thereof including any agreement of such Originator to pay any
money under the First Tier Agreement or any such other document (all such
terms, covenants, conditions, agreements and undertakings on the part of
any Originator to be performed or observed by such Originator being
collectively called the "Guaranteed Originator Obligations"). In the event
that any Originator shall fail in any manner whatsoever to perform or
observe any of the Guaranteed Originator Obligations when the same shall be
required to be performed or observed under the First Tier Agreement or any
such other document (after giving effect to any cure period), then the
Originator Performance Guarantor will itself duly perform or observe, or
cause to be duly performed or observed, such Guaranteed Originator
Obligation, and it shall not be a condition to the accrual of the
obligation of the Originator Performance Guarantor hereunder to perform or
observe any Guaranteed Originator Obligation (or to cause the same to be
performed or observed) that the Issuer shall have first made any request of
or demand upon or given any notice to the Originator Performance Guarantor
or to any Originator, or have instituted any action or proceeding against
the Originator Performance Guarantor or any Originator in respect thereof.
Notwithstanding anything to the contrary contained in this Guaranty, the
obligations of the Originator Performance Guarantor hereunder in respect of
the Originators are expressly limited to the Guaranteed Originator
Obligations. The obligations of the Originator Performance Guarantor
hereunder shall rank pari passu with senior unsecured debt of the
Originator Performance Guarantor.
(b) Enforcement. The Issuer, including the Indenture Trustee, may
proceed to enforce the obligations of the Originator Performance Guarantor
under this Guaranty without first pursuing or exhausting any right or
remedy which the Issuer or the Indenture Trustee may have against any
Originator, any other Person or any collateral.
(c) Obligations Absolute. To the extent permitted by law, the
Originator Performance Guarantor will perform its obligations under this
Guaranty regardless of any law now or hereafter in effect in any
jurisdiction affecting any of the terms of this Guaranty or any document
delivered in connection with this Guaranty or the rights of the Issuer with
respect thereto. The obligations of the Originator Performance Guarantor
under this 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
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Guaranteed Originator Obligations, any Related Document or any
Transferred 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 Originator
Obligations;
(iii) the existence of any claim, setoff or other rights that the
Originator Performance Guarantor may have at any time against any
Originator in connection herewith or any unrelated transaction;
(iv) 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 any Originator; or
(v) any impossibility or impracticality of performance,
illegality, force majeure, any act of any Governmental Authority or
any other circumstance which might constitute a legal or equitable
defense available to, or a discharge of, any Originator or the
Originator 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 Guaranty.
The Originator Performance Guarantor further agrees that its obligations under
this Guaranty shall not be limited by any valuation or estimation made in
connection with any proceedings involving any Originator or the Originator
Performance Guarantor filed under the Bankruptcy Code, whether pursuant to
Section 502 of the Bankruptcy Code or any other Section thereof. The Originator
Performance Guarantor further agrees that the Issuer shall not be under any
obligation to ▇▇▇▇▇▇▇▇ any assets in favor of or against or in payment of any or
all of the Guaranteed Originator Obligations. The Originator Performance
Guarantor further agrees that, to the extent that a payment or payments are made
by or on behalf of any 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 such Originator, or the estate, trustee,
receiver or any other party relating to such Originator, including the
Originator 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 Originator Obligations or part thereof which had been
paid, reduced or satisfied by such amount shall be reinstated and continued in
full force and effect as of the date such initial payments, reduction or
satisfaction occurred. The obligations of the Originator Performance Guarantor
under this Guaranty shall not be discharged except by performance as provided
herein.
(d) Irrevocability. The Originator Performance Guarantor agrees that
its obligations under this Guaranty shall be irrevocable. In the event that
under applicable law (notwithstanding the Originator Performance
Guarantor's agreement regarding the irrevocable nature of its obligations
hereunder) the Originator Performance Guarantor shall have the right to
revoke this Guaranty, this Guaranty shall continue in full force and
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effect until a written revocation hereof specifically referring hereto,
signed by the Originator Performance Guarantor, is actually received by the
Issuer at the address determined in accordance with Section 3.1. Any such
revocation shall not affect the right of the Issuer to enforce its rights
under this Guaranty with respect of (i) any Guaranteed Originator
Obligation (including any Guaranteed Originator Obligation that is
contingent or unmatured) which arose on or prior to the date the
aforementioned revocation was received by the Issuer or (ii) any
Transferred Receivable which was purchased or otherwise acquired by the
Issuer on or prior to the date the aforementioned revocation was received
by the Issuer. For purposes of the preceding sentence, all Guaranteed
Originator Obligations that relate to, or arise in connection with, any
Transferred Receivable that existed on or prior to the date the
aforementioned revocation is received by the Issuer, shall be covered by
this Guaranty notwithstanding such revocation. If the Issuer acquires an
ownership interest in the Transferred Receivables or takes other action in
reliance on this Guaranty after any such revocation by the Originator
Performance Guarantor but prior to the receipt by the Issuer of said
written revocation, the rights of the Issuer with respect thereto shall be
the same as if such revocation had not occurred. Without limiting the
foregoing, this Guaranty may not be revoked at any time until the date,
following the Series Maturity Date of each Series, on which the outstanding
balance of the Transferred Receivables has been reduced to zero.
(e) Waiver. The Originator Performance Guarantor hereby waives
promptness, diligence, notice of acceptance and any other notice with
respect to any of the Guaranteed Originator Obligations and any Related
Document and any requirement that the Issuer exhaust any right or take any
action against any Originator, any other Person or any collateral.
(f) Subrogation. The Originator Performance Guarantor will not
exercise or assert any rights which it may acquire by way of subrogation
under this Guaranty unless and until all of the Guaranteed Originator
Obligations shall have been paid and performed in full. If any payment
shall be made to the Originator Performance Guarantor on account of any
subrogation rights at any time when all of the Guaranteed Originator
Obligations shall not have been paid and performed in full, each and every
amount so paid will be held in trust for the benefit of the Issuer and
forthwith be paid to the Issuer, to be credited and applied to the
Guaranteed Originator Obligations to the extent then unsatisfied, in
accordance with the terms of the Second Tier Agreement or any document
delivered in connection with the Second Tier Agreement, as the case may be.
In the event (i) the Originator Performance Guarantor shall have satisfied
any of the Guaranteed Originator Obligations and (ii) all of the Guaranteed
Originator Obligations shall have been paid and performed in full, the
Issuer will at the Originator Performance Guarantor's request and expense,
execute and deliver to the Originator 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 Originator Performance Guarantor of the rights of the Issuer with
respect to the Guaranteed Originator Obligations to which the Originator
Performance Guarantor shall have become entitled by way of subrogation and
thereafter the Issuer shall have no responsibility to the Originator
Performance Guarantor or any other Person with respect thereof.
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ARTICLE III
MISCELLANEOUS
Section 3.1 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 Person, or
whenever any Person desires to give or serve upon any other Person any
communication with respect to this Guaranty, 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 telecopy or other
similar facsimile transmission (with such telecopy or facsimile promptly
confirmed by delivery of a copy by personal delivery or United States mail as
otherwise provided in this Section 3.1), (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 Person 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 Person entitled to receive such notice. Whenever it
is provided herein that a notice is to be given to any Person by a specific
time, such notice shall only be effective if actually received by such Person
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 the Originator Performance Guarantor:
General Electric Capital Corporation,
as Originator Performance Guarantor
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Capital Market, Operations
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Issuer:
GE Dealer Floorplan Master Note Trust
c/o General Electric Capital Corporation
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Securitization
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Section 3.2 Binding Effect; Assignability. This Guaranty shall be binding
upon and inure to the benefit of the Issuer and its successors and permitted
assigns. The Originator
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Performance Guarantor 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 the Issuer and having satisfied the S&P
Condition. Any such purported assignment, transfer, hypothecation or other
conveyance by the Originator Performance Guarantor without the prior express
written consent of the Issuer shall be void. The Issuer may, at any time, assign
any of its rights and obligations hereunder or interests herein to any Person
and any such assignee may further assign at any time its rights and obligations
hereunder or interests herein (including any rights it may have to exercise
remedies hereunder), in each case without the consent of the Originator
Performance Guarantor. If such assignment is made to anyone other than the
Indenture Trustee, the S&P Condition must be satisfied.
Section 3.3 Termination; Survival of Guaranteed Originator Obligations Upon
Facility Termination Date. This Guaranty shall create and constitute the
continuing obligation of the Originator Performance Guarantor in accordance with
its terms, and shall remain in full force and effect until the date, following
the Series Maturity Date of each Series, on which the outstanding balance of the
Transferred Receivables has been reduced to zero.
Section 3.4 Costs, Expenses and Taxes.
(a) The Originator Performance Guarantor shall reimburse the Issuer
for all out-of-pocket expenses incurred in connection with the negotiation
and preparation of this Guaranty (including the reasonable fees and
expenses of all of its special counsel, advisors, consultants and auditors
retained in connection with the transactions contemplated thereby and
advice in connection therewith). The Originator Performance Guarantor is
also liable for all of its own out-of-pocket expenses incurred in
connection with the negotiation, preparation and the carrying out of its
obligations under this Guaranty (including the reasonable fees and expenses
of all of its special counsel, advisors, consultants and auditors retained
in connection with the transactions contemplated thereby and advice in
connection therewith). The Originator Performance Guarantor shall reimburse
the Issuer for all fees, costs and expenses, including the fees, costs and
expenses of counsel or other advisors for advice, assistance, or other
representation in connection with:
(i) any amendment, modification or waiver of, consent with
respect to, or termination of this Guaranty or advice in connection
with the administration thereof or its rights hereunder or thereunder;
and
(ii) any Litigation, contest or dispute (whether instituted by
the Originator Performance Guarantor, the Issuer or any other Person
as a party, witness, or otherwise) in any way relating to this
Guaranty or any other agreement to be executed or delivered in
connection herewith, including any Litigation, contest, dispute, suit,
case or proceeding and any appeal or review thereof, in connection
with a case commenced by or against the Originator Performance
Guarantor or any other Person that may be obligated to the Issuer by
virtue of this Guaranty, including any such Litigation, contest,
dispute, suit or proceeding arising in connection with any work-out or
restructuring of the transactions contemplated hereby during the
pendency of one or more Events of Default;
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including all attorneys' and other professional and service providers' fees
arising from such services, including those in connection with any appellate
proceedings, and all expenses, costs, charges and other fees incurred by such
counsel and others in connection with or relating to any of the events or
actions described in this Section 3.4, all of which shall be payable, on demand,
by the Originator Performance Guarantor to the Issuer. Without limiting the
generality of the foregoing, such expenses, costs, charges and fees may include:
fees, costs and expenses of accountants and paralegals; court costs and
expenses; photocopying and duplication expenses; court reporter fees, costs and
expenses; long distance telephone charges; air express charges; telegram or
telecopy charges; secretarial overtime charges; and expenses for travel, lodging
and food paid or incurred in connection with the performance of such legal or
other advisory services.
(b) In addition, the Originator Performance Guarantor shall pay on
demand any and all stamp, sales, excise and other taxes (excluding income
taxes) and fees payable or determined to be payable in connection with the
execution, delivery, filing or recording of this Guaranty, and the
Originator Performance Guarantor agrees to indemnify and save the Issuer
harmless from and against any and all liabilities with respect to or
resulting from any delay or failure to pay such taxes and fees.
Section 3.5 No Waiver; Remedies. The failure by the Issuer, at any time or
times, to require strict performance by the Originator Performance Guarantor of
any provision of this Guaranty shall not waive, affect or diminish any right of
the Issuer thereafter to demand strict compliance and performance herewith or
therewith. 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 the
Originator Performance Guarantor contained in this Guaranty, and no breach or
default by the Originator Performance Guarantor hereunder, shall be deemed to
have been suspended or waived by the Issuer unless such waiver or suspension is
by an instrument in writing signed by the Issuer and directed to the Originator
Performance Guarantor, as applicable, specifying such suspension or waiver. The
rights and remedies of the Issuer under this Guaranty shall be cumulative and
nonexclusive of any other rights and remedies that the Issuer may have under any
other agreement, including the other Related Documents, by operation of law or
otherwise. Recourse to the Collateral shall not be required.
Section 3.6 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS GUARANTY 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 SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK BUT WITHOUT REGARD TO ANY OTHER
CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED
STATES OF AMERICA.
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(b) THE ORIGINATOR 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 GUARANTY OR TO ANY MATTER ARISING OUT
OF OR RELATING TO THIS GUARANTY; PROVIDED, 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
GUARANTY SHALL BE DEEMED OR OPERATE TO PRECLUDE THE ISSUER FROM BRINGING
SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE ISSUER. THE ORIGINATOR
PERFORMANCE GUARANTOR SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION
IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND THE ORIGINATOR
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 ORIGINATOR 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 SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH
SECTION 3.1 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 PERSON 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 ORIGINATOR PERFORMANCE GUARANTOR
DESIRES THAT DISPUTES ARISING WITH RESPECT TO THIS GUARANTY 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
ORIGINATOR PERFORMANCE GUARANTOR WAIVES 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,
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CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 3.7 Counterparts. This Guaranty may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement.
Section 3.8 Severability. Wherever possible, each provision of this
Guaranty shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Guaranty 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 Guaranty.
Section 3.9 Section Titles. The section titles and table of contents
contained in this Guaranty are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of this Guaranty.
[SIGNATURES FOLLOW]
11
IN WITNESS WHEREOF, the Originator Performance Guarantor has caused this
Originator Performance Guaranty to be executed as of the date first above
written.
GENERAL ELECTRIC CAPITAL CORPORATION,
as Originator Performance Guarantor
By:
------------------------------------
Name:
----------------------------------
Title:
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Accepted as of the date first above written:
GE DEALER FLOORPLAN MASTER NOTE
TRUST,
as Issuer
By: The Bank of New York (Delaware),
not in its individual capacity
but solely on behalf of the
Issuer
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Asst. Vice President
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