Exhibit
4.16


 


AMENDED
AND RESTATED SERVICE AGREEMENT


 


This Service Agreement (“Agreement”)
is made by and between GE Money Bank, a federal savings bank (“Bank”),  and General Electric Capital Corporation, a
Delaware corporation (“Provider”).


 


WITNESSETH


 


WHEREAS,
Bank is engaged in the business of extending credit to customers under various
credit programs; and


 


WHEREAS,
Provider, directly and through its subsidiaries, has many years of experience
in servicing credit programs of the type engaged in by Bank, and has personnel
and existing computer and other facilities necessary to service such programs;
and


 


WHEREAS,
Bank has established a nationwide consumer mortgage lending program; and


 


WHEREAS,
Provider, directly and through its subsidiaries, is engaged in the business of
providing mortgage lending services, and has personnel and existing computer
and other facilities necessary to provide services for such programs, including
marketing, processing, funding and servicing, and


 


WHEREAS,
Bank is engaged in check cashing, prepaid card, and bill payment; and


 


WHEREAS,
Provider, directly and through its subsidiaries, has
expertise in establishing and operating Fee-Based Services programs of the type
engaged in by Bank, and has existing computer and other facilities necessary to
provide services for such programs; and


 


WHEREAS,
the Bank has requested that Provider provides services for Bank’s credit
programs, mortgage programs and fee-based programs (“Programs”) and Provider
has agreed to do so for appropriate compensation;


 


WHEREAS,
the Bank and Provider have entered into a Service Agreement, dated as of January 1,
2005 (the “Prior Service Agreement”) regarding services provided for all
Programs now or hereafter offered by the Bank (“ Products”) and the Bank and Provider
desire to amend and restate the Prior
Service Agreement on the terms set forth herein;


 


NOW, THEREFORE,
in consideration of the mutual covenants contained in this Agreement, the Prior
Service Agreement is amended and restated to read in its entirety, and Bank and
Provider agree, as follows:


 


1

















 


ARTICLE I


SERVICES


 


1.1                                 Services  Provider agrees to provide various services
as requested by the Bank that are usual and customary for the operation of the
Bank’s products (the “Services”), including some or all of the services listed
on Exhibit “A” hereto. If the Bank sells receivables or mortgage loans
arising from the Bank’s Programs, Provider agrees to perform such Services
in connection with any such sale and such continuing Services in connection
with the receivables or loans as the Bank shall request from time to time.


 


1.2                                 Performance
Standards  Provider shall provide the
Services at a level of performance, including timeliness and accuracy, that are
equal to the industry standard for the Services provided and no less favorable
than the level at which it provides comparable services for comparable
portfolios.


 


1.3                                 Regulation  It is understood and agreed by the parties
hereto that the performance of the Services is subject to regulation or
examination by the Office of Thrift Supervision (“OTS”). Provider shall submit
and furnish to the OTS such reports or other data as shall be required under
applicable law and regulation. Provider shall, upon receipt of any such
request, notify Bank, and prior to submission of any such reports or data shall
provide Bank with copies of such submissions, unless otherwise provided by law
or court order. Any transfer of customer information among Bank, Provider and
other affiliates of Provider shall comply with applicable federal and state law
and regulation.


 


1.4                                 Data
Protection and Recovery


 


(a)                                  Provider shall maintain in accordance
with the back-up procedures maintained by Provider and approved by the Bank,
duplicate copies of all records and data, except current work in process,
necessary to enable the reconstruction of the data maintained by Provider in
connection with the Programs (“Program Data”), and to permit Bank to continue
its operations in the event of damage to or destruction of Provider’s data
processing facilities. Provider shall maintain any other safeguards against the
destruction, loss or alteration of any such Program Data or the interruption of
data processing services which it employs in connection with its own data
processing, or which shall be required under law or regulation applicable to
Bank or Provider.


 


(b)                                 Provider shall have in place a disaster
recovery plan (“Disaster Recover Plan” or “Plan”) in relation to the Services
rendered by Provider. The Disaster Recovery Plan shall comply in all respects
with all federal, state and local laws applicable to the Bank and shall
include, but not be limited to, the following:


 


(i)                                     A brief description of the applications
and components included in the Services that would likely be affected by a
disaster that results in disruption of Services (“Disaster”) and any back-up or
alternate capabilities;


 


(ii)                                  The resources which Provider would
utilize to perform the Services in the event of any Disaster and the
emergency service levels or the performance


 


2

















 


standards
to be adhered by Provider in relation to the affected Services upon occurrence
of any such Disaster;


 


(iii)                               The locations of the recovery center that Provider would
utilize for provision of Services in the event of such Disaster (the “Primary
Recovery Center”) and the location of an alternate recovery center (the “Secondary
Recovery Center”) that Provider would use if the Primary Recovery Center is not
available;


 


(iv)                              (a) Provider’s recovery
responsibilities; (b) contact listings of key personnel; (c) identification
of recovery teams; (d) recovery scenarios; (e) criteria for disaster
recovery; vi) names of individuals authorized by each party to act on its
behalf in the event of Disaster; (f) calendar for testing of the Disaster
Recovery Plan; and (g) notification and escalation procedures; and


 


(v)                                 Procedures entailing transfer of Services
to one or more designated Customer contact sites.


 


(c)                                  Provider
shall make necessary arrangements and provide requisite infrastructure to test
the Disaster Recovery Plan periodically. Provider, in coordination with the
Bank , shall review and, if necessary, update the Plan on an annual basis or
upon request of Bank. No changes will be made to the Plan unless such changes
are approved in writing by both Provider and Bank. Provider shall provide a
representative (“Disaster Recovery Coordinator”) knowledgeable about disaster
recovery planning and the Plan to serve as a single point of contact for
Disaster-recovery-related communications and activities of Bank. The Disaster
Recovery Coordinator shall be responsible for the maintenance of the Plan and
shall ensure safe storage and distribution of copies thereof to the following
locations and individuals:  (A) off-site
vital record storage and (B) designated personnel of Bank.


 


(d)                                 Provider,
in cooperation with Bank, shall test and evaluate the Disaster Recovery Plan at
mutually agreed intervals to ensure that it remains predictable, effective and
current. All disaster recovery testing and evaluation shall be conducted by
Provider in consultation with Bank and Provider shall provide Bank with at
least fourteen (14) days’ prior written notice before conducting any test in
relation to the Plan. Without limiting the foregoing, Bank shall have the right
but not the obligation to have its employees, agents and representatives
present at, and monitoring, each such test of the Plan. Provider shall provide
Bank with a preliminary report of results following each Disaster recovery test
within twenty-four (24) hours, and a detailed report within forty-eight (48)
hours following the completion of such test. If the preliminary report or the
detailed report identifies any problems or issues, Provider shall conduct such
additional tests and/or investigation as Bank may request.


 


(e)                                  In
the event of a Disaster, in addition to performing Disaster recovery in
accordance with the Disaster Recovery Plan, Provider shall immediately (X)
notify Bank of the nature and extent of the Disaster and the location of the
Primary Location Center; (Y) if the actual recovery center is a center other
than the Primary Recovery Center, immediately notify Bank by telephone of the
reasons why the Primary Recovery Center is not available; and (Z) take action
to transfer the affected Services to the Primary Location Center/Secondary
Recovery Center in accordance with the Disaster Recovery Plan.


 


3

















 


(f)                                    Except
as may be provided in a Disaster Recovery Plan and Section 7.13, the
occurrence of a Disaster shall not relieve Provider of its obligation to perform the
Services in accordance with the terms hereof.


 


1.5                                 Risk
of Data Loss  Should any Program Data
be lost or destroyed due to any negligent act or omission of Provider or any
other breach of the security obligations of this Agreement, Provider will be
responsible at its own expense for the prompt reconstruction of such Program
Data with high priority allocation of time and resources to complete the
regeneration as quickly as possible.


 


1.6                                 Record
Security


 


(a)                                  Provider
shall not use any information  received
from Bank or obtained as a result of Services performed for Bank except as
necessary in the ordinary course of business to perform Services hereunder.
Provider shall implement appropriate administrative, technical, and physical
safeguards and other appropriate measures to protect the security,
confidentiality and integrity of information received from Bank or in
connection with the Services provided for Bank. These measures shall be
designed to ensure the security and confidentiality of such information,
protect against any anticipated threats or hazards to the security or integrity
of such information, and protect against unauthorized access to or use of such
information that could result in substantial harm or inconvenience to any
consumer.


 


(b)                                 Provider
shall keep and maintain originals or duplicates of all necessary records
relating to all Services performed and shall provide such records to the Bank
upon request. Provider shall provide Bank with access to the Program Data
during all such times as the Program Data is available to Provider and to all
documents and records maintained by Provider for Bank pursuant to the
performance of the Services.


 


(c)                                  Provider
agrees to comply with vendor security requirements (the “Bank Security
Requirements”) issued and updated from time to time under Bank’s information
security program. However, if Provider does not or cannot comply with any
provision contained in any update to the Bank Security Requirements other than
because of lack of an agreement to share any additional expenses to be incurred
by Provider to meet or comply with such update, then Bank shall have the option
to terminate this Agreement in accordance with Section 4.3 below.


 


(d)                                 Provider
shall notify Bank immediately following discovery or notification of any actual
or threatened breach of security of the systems maintained by Provider or any
subcontractor that maintain information  received
from Bank or obtained as a result of Services performed for Bank. Provider
agrees to take, or cause the applicable subcontractor to take, action
immediately, at its own expense, to investigate the actual or threatened
breach, to identify and mitigate the effects of any such breach and to
implement reasonable and appropriate measures in response to such breach. Provider
also will provide Bank with all available information regarding such breach so
that it may assist Bank in implementing its information security response
program and, if applicable, in notifying affected consumers. For the purposes
of this subsection (d), the term “breach of security” or “breach” means
the unauthorized access to


 


4

















 


or acquisition of any
record containing personally identifiable information relating to a consumer
who is a customer of Bank, whether in paper, electronic, or other form, in a
manner that renders misuse of the information reasonably possible or that
otherwise compromises the security, confidentiality, or integrity of the
information.


 


(e)                                  Provider
will use reasonable measures designed to properly dispose of all records
containing personally identifiable information relating to consumers who are
customers of Bank, whether in paper, electronic, or other form, including
adhering to policies and procedures that require the destruction or erasure of
electronic media containing such personally identifiable information so that
the information cannot practicably be read or reconstructed.


 


1.7                                 Cooperation
With Inspections  Provider shall
permit the inspection of the records and Program Data of Bank maintained by
Provider at all reasonable times during business hours of Provider, by Bank or
its representatives, including, without limitation, independent certified
public accountants engaged by Bank, or by state or federal regulatory agencies
with jurisdiction over Bank, to permit compliance with reporting and disclosure
requirements of federal and state regulatory agencies and federal and state
laws. Provider shall cooperate fully with the Bank to enable the Bank and its
representatives to audit the activities, records and accounts of Provider in
connection with the Services provided under this Agreement. Provider shall also
cooperate fully with any governmental agencies auditing or examining the Bank
and shall make available to such agencies its records and accounts in
connection with Services provided under this Agreement.


 


1.8                                 Reporting Requirements. Provider will provide to Bank all
requested reports including, but not limited to accounting of expenses,
performance of portfolios including, but not limited to, volume, approval
rates, delinquency, yield and other financial reporting, as required.


 


1.9                                 Limitation on Decision Making Authority. Bank shall retain all decision making
authority with respect to all items having an economic impact to any Program,
including but not limited to underwriting, credit decisions, finance charge
adjustments and strategies.


 


1.10                           Covenants
of Provider  Provider hereby
covenants to do the following during the term of this Agreement:


 


(a)                                  Provider shall perform its
obligations hereunder in a timely manner and with due care.


 


(b)                                 Provider shall comply with all applicable
federal, state and local laws, rules and regulations, including, but not
limited to, Office of Thrift Supervision regulations, state banking laws and
regulations, insurance laws, the Truth in Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Reporting Act, the Fair Credit Billing Act and
the Fair Debt Collection Practices Act.


 


(c)                                  Provider shall cooperate with the Bank
and any retailers, dealers, associations and manufacturers for whom the Bank
establishes programs and shall use its best


 


5

















 


efforts
promptly to resolve all disputes with customers of the Bank that may arise
in the course of performing the Services.


 


(d)                                 To the extent that Provider is required
to perform Services in accordance with specific directions, guidelines,
and criteria established by the Bank, Provider shall perform such Services
in accordance with the specific directions, guidelines, and criteria
established by the Bank and shall have no discretion in applying or waiving
such directions, guidelines, and criteria.


 


(e)                                  Provider
shall have no authority hereunder or implied to contract on behalf of the Bank
with any third parties and shall not hold itself out as having such powers or
authority. Provider shall forward all offers made to the Bank by third parties
to officers or employees of the Bank for acceptance or rejection.


 


(f)                                    When performing Services in connection
with collecting debts owed the Bank, Provider shall not hold itself out as an
agent of the Bank, but rather shall hold itself out as an independent
contractor collecting debts owed to the Bank.


 


(g)                                 Provider shall comply with the GE
Integrity, Spirit and Letter Policy.


 


1.11                           Securitization Cooperation   Provider acknowledges that Bank may from time to
time (i) enter into one or more financing transactions or securities
offerings that are payable from or secured, directly or indirectly, by all or a
portion of the receivables or mortgage loans arising from Bank’s Programs, (ii) sell
or otherwise transfer of all or a portion of the receivables or mortgage loans
arising from Bank’s Programs or (iii) enter into other securitization,
secured loan, financing or similar transaction involving all or a portion of
the receivables or mortgage loans arising from Bank’s Programs (any of the
foregoing transactions, a “Securitization”). Provider agrees to take such
actions to assist Bank in connection with any Securitization of the such
receivables or mortgage loans as Bank may reasonably request, including
the preparation of any servicer statements, reports to security holders or
other reports as may be required to be delivered by Bank pursuant to any
servicing agreement entered into by Bank in connection with a Securitization. Without
limiting the generality of the foregoing, Provider shall promptly furnish to Bank
or any of its affiliates participating in a Securitization of such receivables
or mortgage loans, from time to time, any and all reports, certifications,
records, attestations and any other information necessary in the good faith
determination of Bank, to permit Bank or any of its affiliates participating in
a Securitization to comply with the provisions of Regulation AB under the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), including without limitation, such reports,
assessments and attestations as may be required to be delivered in
accordance with Rules 13a-18 and 15d-18 of the Exchange Act and
Items 1122 and 1123 of Regulation AB.


 


ARTICLE II


REPRESENTATIONS
AND WARRANTIES


 


2.1                                 Representations
and Warranties of Bank  Bank hereby
represents and warrants to Provider, as of the date hereof:


 


6

















 


(a)                                  Bank is a federal savings association,
duly organized, and validly existing in good standing under the laws of the
United States of America and has full corporate power and authority to execute,
deliver, and perform its obligations under this Agreement; the execution,
delivery, and performance of this Agreement have been duly authorized, and are
not in conflict with and do not violate any law or regulation applicable to
Bank, or the terms of the charter or bylaws of Bank and will not result in a
breach of or constitute a default under or require any consent under any
indenture, loan, or agreement to which Bank is a party;


 


(b)                                 All approvals, authorizations, licensees,
registrations, consents, and other actions by, and notices to, and filings with
any person that may be required in connection with the execution,
delivery, and performance of this Agreement by Bank, have been obtained;


 


(c)                                  There is no material claim nor any
material litigation, proceeding, arbitration, investigation, or controversy
pending, to which Bank is a party, that would adversely affect this Agreement;
no such claim, litigation, proceeding arbitration, investigation, or
controversy has, to Bank’s knowledge, been threatened or is contemplated; to
Bank’s knowledge, no facts exist which would provide a basis for any such
claim, litigation, proceeding, arbitration, investigation, or controversy; and
Bank is not subject to any agreement with any regulatory authority with respect
to its operations adversely affecting this Agreement.


 


(d)                                 Bank is not insolvent.


 


2.2                                 Representations
and Warranties of Provider . Provider hereby represents and warrants to
Bank, as of the date hereof:


 


(a)                                  Provider is duly organized, and validly
existing in good standing under the laws of its State of incorporation and has
full power and authority to execute, deliver, and perform its obligations
under this Agreement; the execution, delivery, and performance of this
Agreement have been duly authorized, and are not in conflict with and do not
violate any law or regulation applicable to Provider, or the terms of the
articles of organization, operating agreement or bylaws of Provider and will
not result in a breach of or constitute a default under or require any consent
under any indenture, loan, or agreement to which Provider is a party;


 


(b)                                 All approvals, authorizations, licensees,
registrations, consents, and other actions by, and notices to, and filings
with, any person that may be required in connection with the execution,
delivery, and performance of this Agreement by Provider, have been obtained;


 


(c)                                  There is no material claim nor any
material litigation, proceeding, arbitration, investigation, or controversy
pending to which Provider is a party, that would adversely affect this
Agreement; no such claim, litigation, proceeding arbitration, investigation, or
controversy has, to Provider’s knowledge, been threatened or is contemplated;
to Provider’s knowledge, no facts exist which would provide a basis for any
such claim, litigation, proceeding, arbitration, investigation, or controversy;
and Provider is not subject to any agreement with any regulatory authority with
respect to its operations adversely affecting this Agreement.


 


(d)                                 Provider
is not insolvent.


 


7

















 


ARTICLE III


INDEMNIFICATIONS


 


3.1                                 Indemnification
of Provider  Bank shall indemnify
Provider and its directors, officers, employees and agents (“Provider
Indemnified Parties”) and hold each of them harmless from and against and
defend against, any and all claims, damages, losses, penalties, expenses, costs
and/or liabilities (including attorneys’ fees and court costs) that are caused
by or result from any negligent or willful act or omission of Bank in the
course of or related to Bank’s performance or obligations hereunder and, to the
extent they are not caused by or the result of the willful misconduct or gross negligence
of Provider or any violation of applicable law by Provider. Bank’s obligation
to indemnify any Provider Indemnified Party will survive the expiration or
termination of this Agreement by either party for any reason.


 


3.2                                 Indemnification
of Bank  Provider shall indemnify
Bank and its directors, officers, employees and agents (“Bank Indemnified
Parties”) and hold each of them harmless from and against and defend against,
any and all claims, damages, losses, penalties, expenses, costs and/or liabilities
(including attorneys’ fees and court costs) that are caused by or result from
any negligent or willful act or omission of Provider in the course of or
related to Provider’s performance or obligations hereunder and, to the extent
they are not caused by or the result of the willful misconduct or gross
negligence, violation of applicable law by Bank. Provider’s obligation to
indemnify any Bank Indemnified Party will survive the expiration or termination
of this Agreement by either party for any reason.


 


3.3                                 Indemnification
Process. Bank, on behalf of the Bank Indemnified Parties, and Provider, on
behalf of the Provider Indemnified Parties, (each, an “Indemnified Party”)
shall (i) promptly notify the party obligated to provide indemnification
(the “Indemnifying Party”) of any matters in respect of which the indemnity may apply
and of which the Indemnified Party has knowledge; (ii) give the
Indemnifying Party full opportunity to control the response thereto and the
defense thereof, including any agreement relating to the settlement thereof,
provided that the Indemnifying Party shall not settle any such claim or action
without the prior written consent of the Indemnified Party (which shall not be
unreasonably withheld or delayed); and (iii) cooperate with the Indemnifying
Party, at the Indemnifying Party’s cost and expense in the defense or
settlement thereof. The Indemnified Party may participate, at its own
expense, in such defense and in any settlement discussions directly or through
counsel of its choice on a monitoring, non-controlling basis. Notwithstanding
the foregoing, the Indemnifying Party may not agree on the Indemnified
Party’s behalf to a settlement involving anything other than the payment of
money.


 


ARTICLE IV


TERM AND
TERMINATION


 


4.1                                 Term  This Agreement shall become effective,
without further action, as of [ ], 2006(the “Effective Date”). This Agreement
shall remain in effect until January 1, 2007, and shall thereupon be
automatically renewed for successive one-year terms until terminated in accordance
with this Article IV.


 


8

















 


4.2                                 Termination
by Mutual Agreement; Termination Without Cause  This Agreement shall be terminated:


 


(a)                                  Immediately
upon mutual written agreement of the parties, or if Bank is instructed to
terminate the Agreement by the Office of Thrift Supervision; or


 


(b)                                 By either party without cause upon sixty
(60) days’ written notice to the other party.


 


4.3                                 Termination
Upon Default  The breach by either
party of a material term or condition of this Agreement shall constitute an
event of default (“Event of Default”). If such Event of Default is not cured by
the defaulting party within thirty (30) days after delivery of written notice
describing the Event of Default, then the nondefaulting party shall be
entitled, at its sole election, to terminate this Agreement upon not less than
thirty (30) days written notice to the other party.


 


4.4                                 Termination
by Reason of Bankruptcy  In the event
of the occurrence of any of the following events, each party shall have the
right to terminate this Agreement immediately upon providing written notice to
the other party:


 


(a)                                  The commencement of any bankruptcy,
insolvency, reorganization, dissolution, liquidation of debt, receivership or
conservatorship proceeding or other similar proceeding under federal or state
bankruptcy, debtors relief, bank regulatory or other law by or against the
other party; or


 


(b)                                 The suspension or termination of business
or dissolution of, or the appointment of a receiver, conservator, trustee or
similar officer to take charge of, a substantial part of the property of
the other party.


 


4.5                                 Survival
of Certain Obligations; Post-Termination Issues  Expiration or earlier termination of this
Agreement for any reason shall not terminate the obligations described in this Section 4.5
or in Sections 1.7, 3.1, 3.2, 3.3, 6.1, 6.2 or 7.1.


 


(a)                                  Transfer
of Data and Cooperation in Transfer 
Upon the expiration or earlier termination of this Agreement for any
reason, Provider shall immediately deliver to Bank all files, records, and
documents maintained by Provider relating to the performance of Services for
the Bank under this Agreement, and shall fully cooperate in the transfer of any
servicing functions performed pursuant to this Agreement to a third party. Bank
shall compensate Provider for such services to the same extent as if such
services had been performed during the terms of this Agreement, and Provider
shall perform such services according to such standards, including
confidentiality, security, and accuracy, as were in effect during the term of
this Agreement.


 


(b)                                 Continued
Servicing upon Termination  If this
Agreement is terminated pursuant to Section 4.2, Provider shall continue
to provide the Services until such time as such servicing functions are
transferred. The Bank shall pay Provider such reasonable fees with


 


9

















 


respect to any services
provided by Provider pursuant to this Section 4.5(b) as are mutually
agreed upon by the parties at the time.


 


(c)                                  Costs
of Conversion Paid by Defaulting Party 
If this Agreement is terminated pursuant to Section 4.3, the
defaulting party shall be obligated to pay all costs associated with the
transfer of any servicing function from Provider to a third party or to Bank.


 


(d)                                 Destruction
of Files  Upon the expiration or
earlier termination of this Agreement for any reason, Provider will destroy all
duplicates of all files, records and documents maintained by Provider relating
to the performance of Services for the Bank under this Agreement which are not
transferred to Bank pursuant to Section 4.5(a) and which Provider is
not required to maintain pursuant to applicable law or regulation.


 


4.6                                 Assistance
with Conversion  Upon any termination
of this Agreement, Provider shall provide to the Bank all assistance reasonably
necessary to enable the Bank to convert the accounts serviced hereunder to the
processing system designated by the Bank and shall cooperate with the Bank in
its efforts to effect such conversion at the earliest practicable date.


 


ARTICLE V


CONSIDERATION


 


5.1                                 Specific
Fees  Bank shall pay Provider for
Services at a rate equal to the Service Fee Rate multiplied by the amount of
loan receivables outstanding at the end of the previous month


 


5.2                                 Service
Fee Rate  Provider will determine the
cost to perform services for the Bank that will be equal to Provider’s
estimated annual cost plus five percent (5%). Service Fee Rate will be
determined by dividing estimated annual costs plus five percent (5%) divided by
estimated assets serviced. This rate will be calculated based on the Provider’s
operating plan for the services documented on attached Exhibit A and
adjusted on an annual basis. The Provider will send the Bank an annual
notification of the rate and basis for the calculation that will be acceptable
to both the Provider and the Bank on an annual basis.


 


5.3                                 Other
Fees  By a writing signed by each
party hereto, Bank and Provider may agree to the payment by Bank of
additional fees to Provider in consideration of additional services to be
performed by Provider from time to time for which no compensation has been
previously established.


 


5.4                                 Out-of-Pocket
Expenses  Bank shall reimburse
Provider for all reasonable out-of-pocket expenses incurred by Provider in the
provision of the Services as mutually agreed upon in advance by the parties.


 


5. 5                              Price
Guarantee  Provider and Bank
acknowledge that it is the intent of each party that the Services shall be
provided on terms and conditions and under circumstances that are at least as
favorable to Bank as those Provider offers or would offer to nonaffiliated
companies and as Bank could obtain from nonaffiliated companies. The parties
therefore agree that if Bank at any time provides written evidence that the Services
are available to Bank from a third party at a


 


10

















 


price offered in good
faith that is lower than the price provided hereunder, Provider shall reduce
the charge for such service or services to Bank to the price offered in good
faith by such third party.


 


5.6                                 Payment  Within thirty (30) days after the end of each
calendar month, or other period agreed between the parties, Provider shall
provide Bank with an itemized report (in a form reasonably satisfactory to
Bank), setting forth for that period all fees incurred pursuant to Section 5.1,
5.2, 5.3 and 5.4. All payments due pursuant to such report shall be remitted by
Bank within thirty (30) days of receipt by Bank of such report.


 


ARTICLE VI


CONFIDENTIALITY


 


6.1                                 Confidentiality  It is understood that, in the performance by
Provider of the Services, Provider may have access to private or
confidential information of Bank and Bank’s employees and customers, and that
Bank may have access to confidential information regarding the operation
of Provider’s computer systems. The parties agree that Bank’s confidential
information includes all non-public personal information regarding Bank’s
customers. Each party shall use that degree of care it exercises to protect its
own private or confidential information to keep, and to have its employees and
representatives keep, any and all private or confidential information of the
other party strictly confidential and to use such information only for the
purpose providing the Services or as otherwise agreed to by the other party. Each
party acknowledges and agrees that in the event of a breach or threatened
breach by it of the provisions of this Section, the other party will have no
adequate remedy in money or damages and, accordingly, shall be entitled to an
injunction against such breach. However, no specification in this Agreement of
a specific legal or equitable remedy shall be construed as a waiver or
prohibition against any other legal or equitable remedies in the event of a
breach of any provision of this Agreement. Neither party shall provide any
private or confidential information of the other party to third parties
pursuant to an administrative or judicial subpoena, summons, search warrant or
other governmental order without providing prior notice to such other party,
unless otherwise provided by law or court order.


 


6.2                                 Limit
of Confidentiality Obligations 
Provider’s and Bank’s obligations and agreements under Section 6.1
hereof shall not apply to any information supplied that:


 


(a)                                  Was
known to the receiving party prior to the disclosure by the other;


 


(b)                                 Is or becomes generally available to the
public other than by breach of this Agreement; or


 


(c)                                  Otherwise becomes lawfully available on a
nonconfidential basis from a third party who is not under an obligation of
confidence to the other party.


 


11

















 


ARTICLE VII


MISCELLANEOUS


 


7.1                                 Notices  Any written notice required or permitted to
be given to the parties hereunder shall be addressed as follows:


 


If to Bank:


 


GE
Money Bank


4246
S. Riverboat Road, Suite 200

Salt Lake City, UT 84123


Attn:  Chief Financial Officer


 


If to Provider:


 


General Electric Capital
Corporation


777 Long Ridge Road,
Building B


Stamford, CT  06927


Attn.:  Chief Financial Officer


 


All
written notices shall be delivered in person or shall be sent by registered or
certified mail, return receipt requested, and shall be deemed effective,
seventy-two (72) hours after the same is mailed as provided above with postage
prepaid. Notice sent by any other method shall be effective only upon actual
receipt. The parties to this Agreement, by notice in writing, may designate
another to whom notices shall be given pursuant to this Agreement.


 


7.2                                 Independent
Contractor Status of Provider  The
relationship of Provider to Bank under this Agreement is that of independent
contractor. Provider shall perform the Services on a non-exclusive basis
and nothing herein contained shall be construed as constituting a partnership,
joint venture or agency between the parties hereto.


 


7.3                                 Assignment;
Subcontracting  This Agreement shall
not be assignable in whole or in part by Provider or Bank without the
other party’s prior written consent, which shall not unreasonably be withheld,
and any attempted assignment without such consent shall be void; except that
Provider may assign this Agreement or delegate any obligation of Provider
under this Agreement or subcontract for the performance of the Services to any
parent, subsidiary or affiliate of Provider with the capacity to provide any of
the Services at a level of quality at least equal to that provided by Provider.
Notwithstanding any such assignment, delegation or subcontract, Provider shall
remain primarily liable for all of its obligations under this Agreement which
are so assigned, delegated or subcontracted.


 


7.4                                 Waiver  No term or provision hereof will be deemed
waived, and no variation of terms or provisions hereof shall be deemed
consented to, unless such waiver or consent shall be in writing and signed by
the party against whom such waiver or consent is sought to be enforced. Any
delay, waiver or omission by Provider or Bank to exercise any right or power
arising from any breach or default of the other party in any of the terms, provisions
or covenants of this


 


12

















 


Agreement shall not be
construed to be a waiver by Provider or Bank of any subsequent breach or
default of the same or other terms, provisions or covenants on the part of
the other party.


 


7.5                                 Successors  Subject to the restrictions on assignment
contained herein, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.


 


7.6                                 Compliance
With Laws and Regulations  Each party
agrees that it will obtain all licenses and other governmental authorizations
and approvals required for the performance of its obligations under this
Agreement and will perform its obligations hereunder in accordance with
all applicable federal, state and local laws, rules and regulations now or
hereafter in effect.


 


7.7                                 Governing
Law  This Agreement shall be governed
by and construed in accordance with the internal laws of the State in which the
Bank maintains its home office, without giving effect to choice-of-law
principles, and applicable federal law.


 


7.8                                 Headings
Not Controlling  Headings used in
this Agreement are for reference purposes only and shall not be deemed a part of
this Agreement.


 


7.9                                 Entire
Agreement  This Agreement constitutes
the only agreement between the parties hereto relating to the subject matter
hereof, except where expressly noted herein, and all prior negotiations,
agreements and understandings, whether oral or written are superseded or
canceled hereby.


 


7.10                           Arm’s-Length
Agreement  The parties hereto
acknowledge that the terms of this Agreement are substantially the same as, or
at least as favorable to Bank, as those prevailing as of the Effective Date for
comparable transactions with or involving other nonaffiliated companies and, in
the absence of comparable transactions, on terms at least as favorable to Bank
as Provider in good faith would offer to nonaffiliated companies.


 


7.11                           Modification  This Agreement may not be amended or
modified except in a written document signed by both parties.


 


7.12                           Severability  If any provision of this Agreement is
declared or found to be illegal, unenforceable or void, this Agreement shall be
construed as if not containing that provision, the rest of the Agreement shall
remain in full force and effect, and the rights and obligations of the parties
hereto shall be construed and enforced accordingly.


 


7.13                           Force
Majeure  Neither party shall be
liable for any loss, injury, damages, delay in performance or failure to perform any
obligation under this Agreement to the extent such loss, injury, damages, delay
or failure to perform is the result of causes beyond the control of that
party and is without its fault or negligence, including, but not limited to,
acts of God, labor disputes, governmental regulations or orders, civil
disturbance, war conditions, terrorist acts, riots, explosions, fires or the
result of a failure by the other party to satisfy its obligations under this
Agreement, except to the extent such loss, injury, damages, delay or non-performance
is the result of any failure of Provider to comply with its obligations set
forth in the Disaster Recovery Plan.


 


13

















 


Upon occurrence of any force majeure event, Provider
shall render the Services in accordance with the emergency service levels and
other conditions as detailed in the Disaster Recovery Plan. If Provider is
unable to render the Services in accordance with the emergency levels or
performance standards detailed in the Disaster Recovery Plan for a period
greater than ten (10) days, Bank shall be entitled to terminate the
affected Services of this Agreement, by giving seven (7) days prior
written notice to Provider before performance has resumed. In such event
neither party shall have any liability to the other, other than Bank’s
liability to pay for Services rendered prior to the effective date of
termination.


 


7.14                           Power
of Attorney  For the sole purpose of
allowing Provider to perform the Services hereunder for the Bank, the Bank
hereby appoints Provider as the Bank’s true and lawful attorney-in-fact with
full power of substitution to take control in any manner of any cash or
non-cash items of payment arising from or out of the Programs and to invest,
reinvest and pay as directed by the Bank any funds held by it for the Bank. For
the sole purpose of allowing Provider to perform the Services hereunder
for the Bank, the Bank authorizes Provider to endorse the Bank’s name upon any
or all checks, drafts and money orders received by Provider in connection with
the Programs. Provider agrees that it will hold all funds of the Bank in trust
and as a fiduciary and will promptly account for such funds. Provider will
deliver such funds to the Bank upon demand and generally each business day, and
in any event no less frequently than weekly.


 


7.15                           Insurance.
Provider shall obtain and maintain all insurance coverage of types and in the
amounts required by applicable law and dictated by prudent business practices
in connection with the performance of this Agreement and will provide a
certificate of insurance to Bank for any such policy upon request. Provider
shall notify Bank promptly in writing of any material changes in the insurance
coverage obtained and maintained by Provider in accordance with this Section 7.15.


 


7.16.                        Customer
Complaints. Unless otherwise instructed by Bank, Provider shall forward all
complaints it receives from Bank’s customers to Bank.


 


7.17                           Counterparts  This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of which
together shall be deemed to constitute but one and the same instrument.


 


14

















 


IN WITNESS WHEREOF, the Bank and Provider have hereunto set their hands as
of the 25th day of May, 2006.


 


	
  GE MONEY BANK

  
	
   

  
	
  By:

  	
  /s/ John J. McElligott

  	
   

  
	
  Title: Chief Financial
  Officer

  
	
   

  
	
  GENERAL ELECTRIC
  CAPITAL CORPORATION

  
	
   

  
	
  By:

  	
  /s/ Robert C. Green

  	
   

  
	
  Title: Vice President

  



 


15

















 


Exhibit A


Services


 


	
   

  	
   

  	
  ACTIVITY (as applicable)

  
	
   

  	
   

  	
   

  
	
  Portfolio Servicing

  	
   

  	
  Account
  Inquiry/Research

  
	
   

  	
   

  	
  Provide, prepare and
  retain loan documents

  
	
   

  	
   

  	
  Appraisal (as program
  requires)

  
	
   

  	
   

  	
  Audit/Review Processes
  as directed by Management

  
	
   

  	
   

  	
  Collateral Security Filing
  — Initial Filing (as program requires)

  
	
   

  	
   

  	
  Credit Line Increases

  
	
   

  	
   

  	
  HI Contractor Work
  Estimate

  
	
   

  	
   

  	
  HMDA Reporting

  
	
   

  	
   

  	
  Inspection Report

  
	
   

  	
   

  	
  Mail-in/Fax App Input

  
	
   

  	
   

  	
  Monitoring Calls

  
	
   

  	
   

  	
  Obtain &
  Evaluate Credit Report

  
	
   

  	
   

  	
  OFAC Screening

  
	
   

  	
   

  	
  Phone-in App Input

  
	
   

  	
   

  	
  Provide Account Numbers

  
	
   

  	
   

  	
  Provide Credit
  Limit/Loan Amount

  
	
   

  	
   

  	
  Provide Credit Decision
  Systems

  
	
   

  	
   

  	
  Review/Accept
  stipulations requested by Underwriting

  
	
   

  	
   

  	
  Review/Update of loan
  documents & documentation

  
	
   

  	
   

  	
  Screen Mail-in
  Applications

  
	
   

  	
   

  	
  Screen Preapprovals

  
	
   

  	
   

  	
  Title Examination and
  Insurance (as required by program)

  
	
   

  	
   

  	
  Verification of
  Mortgage

  
	
   

  	
   

  	
  VOE/VOI as required by
  program guidelines

  
	
   

  	
   

  	
   

  
	
  Customer/Loan Servicing

  	
   

  	
  Audit/Review Processes

  
	
   

  	
   

  	
  Autopays

  
	
   

  	
   

  	
  Balance Pmts &
  Rejects

  
	
   

  	
   

  	
  Collateral (Security) Filing
  follow up & Release

  
	
   

  	
   

  	
  Credit Bureau Reporting

  
	
   

  	
   

  	
  Customer Care Calls

  
	
   

  	
   

  	
  Deferral/Waiver of
  Servicing fees (e.g. late fees, NSF fees, etc.)

  
	
   

  	
   

  	
  Deposit Returns

  
	
   

  	
   

  	
  Dispute Resolution
  Processing (e.g. read letter, make decision, send letter, close dispute

  
	
   

  	
   

  	
  Imaging of loan files

  
	
   

  	
   

  	
  Insurance Settlement &
  Claims

  
	
   

  	
   

  	
  Investigate Fraud
  Accounts

  
	
   

  	
   

  	
  Itemize Account History

  
	
   

  	
   

  	
  Key Entry

  
	
   

  	
   

  	
  Key/Maintain Cardholder
  Database

  
	
   

  	
   

  	
  Logging in DB

  
	
   

  	
   

  	
  Lost/Stolen Account
  Transfer

  
	
   

  	
   

  	
  Mail C/H Statement

  
	
   

  	
   

  	
  Make Copies

  
	
   

  	
   

  	
  Management of off-site
  storage of Loan files

  
	
   

  	
   

  	
  Order Checks

  



 


16

















 


	
   

  	
   

  	
  Order Statements

  
	
   

  	
   

  	
  Payment Preparation

  
	
   

  	
   

  	
  Payment Processing

  
	
   

  	
   

  	
  Payment Research

  
	
   

  	
   

  	
  Plastics Processing

  
	
   

  	
   

  	
  Process Dispute

  
	
   

  	
   

  	
  Process Mail-in
  Requests for Information

  
	
   

  	
   

  	
  Process Microfiche

  
	
   

  	
   

  	
  Process Microfilm

  
	
   

  	
   

  	
  Process NSF Checks

  
	
   

  	
   

  	
  Process Pay-by-Phone
  Payments

  
	
   

  	
   

  	
  Process prepaid finance
  charge refunds

  
	
   

  	
   

  	
  Process Refund Credit
  Balances

  
	
   

  	
   

  	
  Process Ret. Plastics &
  Stmts.

  
	
   

  	
   

  	
  Process Returns from
  Accounting

  
	
   

  	
   

  	
  Processing of
  Prepayment Penalties

  
	
   

  	
   

  	
  Promo Adjustments –
  Batch

  
	
   

  	
   

  	
  Promo Adjustments –
  Online

  
	
   

  	
   

  	
  Promo Changes

  
	
   

  	
   

  	
  Provide &
  Process Payoff Requests

  
	
   

  	
   

  	
  Provide &
  Process Verification of Mortgage requests

  
	
   

  	
   

  	
  Provide Amortization
  Schedules

  
	
   

  	
   

  	
  Reading/Proofing/Typing
  Letters

  
	
   

  	
   

  	
  Reallocating Payments

  
	
   

  	
   

  	
  SAR Reporting

  
	
   

  	
   

  	
  Screen Incoming Fraud
  Cases

  
	
   

  	
   

  	
  Send System Merchant.
  Letters

  
	
   

  	
   

  	
  Service Account holder
  Calls

  
	
   

  	
   

  	
  Sort &
  Distribute Mail

  
	
   

  	
   

  	
  Validate ACDV

  
	
   

  	
   

  	
  VRU Call System

  
	
   

  	
   

  	
   

  
	
  Collections/ Recovery

  	
   

  	
  Answer
  Voicemail/Telephone

  
	
   

  	
   

  	
  Audit Reages

  
	
   

  	
   

  	
  Audit/Bill Agencies

  
	
   

  	
   

  	
  Audit/Review Processes

  
	
   

  	
   

  	
  Bankruptcy Reporting

  
	
   

  	
   

  	
  CCCS Proposals and
  Drops

  
	
   

  	
   

  	
  Charge off Reporting

  
	
   

  	
   

  	
  Collect Charge off
  Accounts

  
	
   

  	
   

  	
  Delinquency Reporting

  
	
   

  	
   

  	
  Drop Accounts from Hardship

  
	
   

  	
   

  	
  Early Outs

  
	
   

  	
   

  	
  Early Stage Delinquency
  Account Management

  
	
   

  	
   

  	
  Evaluate Collateral

  
	
   

  	
   

  	
  Hardship Correspondence

  
	
   

  	
   

  	
  Late Stage Delinquency
  Account Management

  
	
   

  	
   

  	
  Maintain Agency
  Accounts

  
	
   

  	
   

  	
  Monitor Sold Accounts

  
	
   

  	
   

  	
  Process Loan Account
  Modifications (e.g. deferrals, extensions, rate mod, etc.) pursuant to Bank
  policy guidelines

  
	
   

  	
   

  	
  Process Bankrupt
  Accounts, including Reaffirmations

  
	
   

  	
   

  	
  Process Charge offs

  
	
   

  	
   

  	
  Process Collateral
  Repossessions

  



 


17

















 


	
   

  	
   

  	
  Process Deceased
  Accounts

  
	
   

  	
   

  	
  Process Foreclosures

  
	
   

  	
   

  	
  Process Settlements

  
	
   

  	
   

  	
  Process/Accept ACH
  payments

  
	
   

  	
   

  	
  Process/Accept
  Pay-by-Phone payments

  
	
   

  	
   

  	
  Provide, prepare per
  Bank’s policies, remit & retain default notices

  
	
   

  	
   

  	
  Provide, prepare per
  Bank’s policies, remit & retain other notices & letters as
  required by program, state & federal law

  
	
   

  	
   

  	
  Reage Accounts

  
	
   

  	
   

  	
  Refund Fees/FC

  
	
   

  	
   

  	
  Research/Review – Non
  Phone

  
	
   

  	
   

  	
  Research/Review on
  Phone

  
	
   

  	
   

  	
  Skip Tracing

  
	
   

  	
   

  	
  Take Inbound Calls

  
	
   

  	
   

  	
   

  
	
  General Management

  	
   

  	
  Acct. – Line of Credit

  
	
   

  	
   

  	
  Business Development
  Support

  
	
   

  	
   

  	
  FDR Conversions

  
	
   

  	
   

  	
  LOS ongoing development &
  maintenance (HI & CI)

  
	
   

  	
   

  	
  Marketing Research &
  Client Supp

  
	
   

  	
   

  	
  Monitor GL Accounts

  
	
   

  	
   

  	
  POS Credit

  
	
   

  	
   

  	
  Process Accounts
  Payable

  
	
   

  	
   

  	
  Reconcile Accounts

  
	
   

  	
   

  	
  Wires

  
	
   

  	
   

  	
   

  
	
  Merchant/Dealer Servicing

  	
   

  	
  ACH Returns

  
	
   

  	
   

  	
  Audit/Review Processes

  
	
   

  	
   

  	
  Customer/Dealer Dispute
  Resolution Process

  
	
   

  	
   

  	
  Decision
  Merchant/Dealer Apps

  
	
   

  	
   

  	
  Distribute Mail

  
	
   

  	
   

  	
  File Merchant/Dealer
  Folders

  
	
   

  	
   

  	
  Fill Out Paperwork/Fax
  Forms

  
	
   

  	
   

  	
  Key/Maintain
  Merchant/Dealer Database

  
	
   

  	
   

  	
  Log Applications in
  Database

  
	
   

  	
   

  	
  Mail Merchant/Dealer
  Statements

  
	
   

  	
   

  	
  Maintenance
  Merchant/Dealer Accounts

  
	
   

  	
   

  	
  Make Outbound
  Merchant/Dealer Calls

  
	
   

  	
   

  	
  Monitor Watch List

  
	
   

  	
   

  	
  New Merchant/Dealer
  Enrollment

  
	
   

  	
   

  	
  Order Verifone
  Equipment/Supplies

  
	
   

  	
   

  	
  Perform Annual
  Dealer Review

  
	
   

  	
   

  	
  Prepare/Send/Receive
  Survey Card

  
	
   

  	
   

  	
  Process F-Cycle
  Acquisitions

  
	
   

  	
   

  	
  Retrieve Sales Drafts

  
	
   

  	
   

  	
  Retrieve
  Statements/Docs

  
	
   

  	
   

  	
  Service Merchant/Dealer
  Calls

  
	
   

  	
   

  	
  Work Cancellation
  Report

  
	
   

  	
   

  	
  Work Overlimit Queue

  
	
   

  	
   

  	
   

  
	
  Transaction Servicing

  	
   

  	
  Give Authorizations

  
	
   

  	
   

  	
  Prepare &
  Balance Edit Sheets

  



 


18

















 


	
   

  	
   

  	
  Process Issuing
  Chargebacks/Retr

  
	
   

  	
   

  	
  Process Visa/MC
  Acquiring Chargebacks

  
	
   

  	
   

  	
  Provisional Account

  
	
   

  	
   

  	
  Reject Reports

  
	
   

  	
   

  	
  Review Cardholder Accts &
  Trans

  
	
   

  	
   

  	
  Review Merchant
  Activity

  
	
   

  	
   

  	
  Review Visa Accts &
  Trans

  
	
   

  	
   

  	
  Savers Account for CPU
  Sales

  
	
   

  	
   

  	
  Take Merchant Calls

  
	
   

  	
   

  	
   

  
	
  Mortgage
  Lending Services

  	
   

  	
  Transaction

  
	
   

  	
   

  	
  Advise on program
  marketing and solicitation strategy

  
	
   

  	
   

  	
  Interface with prospect
  database

  
	
   

  	
   

  	
  Initiate out-bound
  solicitation calls

  
	
   

  	
   

  	
  Operate Call Center for
  loan applicant inquiries

  
	
   

  	
   

  	
  Receive and input loan
  application data

  
	
   

  	
   

  	
  Process loan
  applications

  
	
   

  	
   

  	
  Collect documentation
  related to loan processing

  
	
   

  	
   

  	
  Arrange loan closings

  
	
   

  	
   

  	
  Supervise third-party
  vendor relationships

  
	
   

  	
   

  	
  Provide processes and
  procedures for compliance

  
	
   

  	
   

  	
  Support periodic loan
  sales

  
	
   

  	
   

  	
  Reporting as requested

  
	
   

  	
   

  	
  Hire, train and
  maintain staff

  
	
   

  	
   

  	
   

  
	
  Securitization Services

  	
   

  	
  Addition and Removal of
  Accounts

  
	
   

  	
   

  	
  Produce and distribute
  investor and SEC reporting

  
	
   

  	
   

  	
  Produce and disburse
  investor funds

  
	
   

  	
   

  	
  Calculate and settle
  swaps

  
	
   

  	
   

  	
   

  
	
  General Services

  	
   

  	
  Legal

  
	
   

  	
   

  	
  Accounting

  
	
   

  	
   

  	
  Treasury

  
	
   

  	
   

  	
  Administrative

  
	
   

  	
   

  	
  Operational Assistance

  
	
   

  	
   

  	
  Office furnishings and
  equipment

  
	
   

  	
   

  	
  Compliance

  
	
   

  	
   

  	
  Audit

  
	
   

  	
   

  	
  Information Technology
  Support, including hardware, software and application hosting

  
	
   

  	
   

  	
  Training

  
	
   

  	
   

  	
  Telecommunications,
  including equipment and systems

  
	
   

  	
   

  	
  Human Resources

  



 


19