EX-4.5



 






Exhibit 4.5




AMENDMENT NO. 1 TO



SERVICING AGREEMENT




     THIS AMENDMENT NO. 1 TO SERVICING AGREEMENT, dated as of as of May 5, 2005 (this
“Amendment”), is between General Electric Capital Corporation, a Delaware corporation in
its capacity as master servicer (the “Master Servicer”), and GE Dealer Floorplan Master
Note Trust, a Delaware statutory trust (“Owner”).



BACKGROUND




     The parties hereto are parties to a servicing agreement, dated as of August 12, 2004 (as
amended, modified or supplemented, the “Servicing Agreement”), between the Master Servicer
and Owner; and



     the parties hereto desire to amend the Servicing Agreement as set forth herein.



     NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:



     SECTION 1. Definitions. Capitalized terms defined in the Servicing Agreement and used
but not otherwise defined herein have the meanings given to them in the Servicing Agreement.



     SECTION 2. Amendments to the Servicing Agreement. The Servicing Agreement is hereby
amended as set forth in this Section 2.



     (a) Section 1.1. Section 1.1 of the Servicing Agreement is hereby amended by:



                (i) amending and restating the following definitions in their entirety as follows:




‘“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.”;




‘“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,
net of losses and investment expenses; (d) payments by Dealers of
Manufacturer Discount Amounts; (e) payments by manufacturers of Manufacturer
Subsidy Amounts; and (f) to the extent allocable to the Note Trust



 









 






Certificate, “Non-Principal Collections” (as defined in the Pooling and
Servicing Agreement)”; and




‘“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.”;



                 (ii) amending the definition of “Collections” by deleting the phrase “in respect of
the Receivables” immediately preceding the parenthetical in the first sentence thereof and
replacing such phrase with the words “in respect of the Transferred Receivables” in substitution
therefor; and



                 (iii) inserting, in correct alphabetical order, the following defined terms:




‘“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 (or pays at a reduced rate) in respect of such Receivable.”; and




‘“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 at a reduced rate) in respect of such Receivable.”.



     (b) Section 2.4. Section 2.4 of the Servicing Agreement is hereby amended by:



                 (i) deleting the phrase “after a Transferred Receivable becomes delinquent ...” at the
beginning of clause (b) thereof and substituting the following therefor:




“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



                 (ii) adding the following immediately after the final sentence of such section:




“Upon the request of a Dealer, and consistent with the Credit and Collection
Policies, the 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



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“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 3. Representations and Warranties. In order to induce the parties hereto to
enter into this Amendment, each of the parties hereto represents and warrants unto the other
parties hereto as set forth in this Section 3:



     (a) Due Authorization, Non Contravention, etc. The execution, delivery and
performance by such party of the Amendment are within its powers, have been duly authorized by all
necessary action, and do not (i) contravene its organizational documents; or (ii) contravene any
contractual restriction, law or governmental regulation or court decree or order binding on or
affecting it; and



     (b) Validity, etc. This Amendment constitutes the legal, valid and binding obligation
of such party enforceable against such party in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights and general equitable
principles.



     SECTION 4. Binding Effect; Ratification.



     (a) This Amendment shall become effective, as of the date first set forth above, when
counterparts hereof shall have been executed and delivered by the parties hereto, and thereafter
shall be binding on the parties hereto and their respective successors and assigns.



     (b) The Servicing Agreement, as amended hereby, remains in full force and effect. Any
reference to the Servicing Agreement from and after the date hereof shall be deemed to refer to the
Servicing Agreement as amended hereby, unless otherwise expressly stated.



     (c) Except as expressly amended hereby, the Servicing Agreement shall remain in full force and
effect and is hereby ratified and confirmed by the parties hereto.



     SECTION 5. Miscellaneous.



     (a) THIS AMENDMENT 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.



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     (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 CLAIM OR DISPUTES BETWEEN THEM PERTAINING TO THIS AMENDMENT OR TO ANY MATTER ARISING OUT OF OR
RELATED TO THIS AMENDMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEAL
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 WAIVES ANY OBJECTION THAT SUCH
PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM
NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE
OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED
TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 8.1 OF THE SERVICING AGREEMENT
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 AMENDMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.



     (d) Headings used herein are for convenience of reference only and shall not affect the
meaning of this Amendment or any provision hereof.



     (e) This Amendment may be executed in any number of counterparts, and by the parties hereto on
separate counterparts, each of which when executed and delivered shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.



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     (f) Executed counterparts of this Amendment may be delivered electronically.



[SIGNATURES FOLLOW]




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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the date and year 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:	 	/s/ Kristine K. Gullo
	

	 	 	 	 	 	 
	

	 	Name:	 	Kristine K. Gullo	 	 
	

	 	 	 	 	 	 
	

	 	Title:	 	Asst. Vice President	 	 
	

	 	 	 	 	 	 






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	 	 	GENERAL ELECTRIC CAPITAL CORPORATION, as the Master Servicer	 	 
	 
	 	 	 	 	 	 
	

	 	By:	 	/s/ Mark Hutchinson
	

	 	 	 	 	 	 
	

	 	Name:	 	Mark Hutchinson	 	 
	

	 	 	 	 	 	 
	

	 	Title:	 	Vice President	 	 
	

	 	 	 	 	 	 







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