EXHIBIT 4.15


 


 


SERVICER PERFORMANCE GUARANTY


 


 


Dated as of
June 27, 2003


 


 


by


 


 


GENERAL ELECTRIC
CAPITAL CORPORATION,


 


as Servicer
Performance Guarantor


 

















 


TABLE
OF CONTENTS


 


	
  ARTICLE I

  	
  DEFINITIONS AND
  INTERPRETATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 1.1

  	
   

  	
  Definitions

  	
   

  
	
   

  	
  Section 1.2

  	
   

  	
  Rules of Construction

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  SERVICER PERFORMANCE
  GUARANTY

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.1

  	
   

  	
  Servicer Performance
  Guaranty

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.1

  	
   

  	
  Notices

  	
   

  
	
   

  	
  Section 3.2

  	
   

  	
  Binding Effect;
  Assignability

  	
   

  
	
   

  	
  Section 3.3

  	
   

  	
  Costs, Expenses and Taxes

  	
   

  
	
   

  	
  Section 3.4

  	
   

  	
  No Waiver; Remedies

  	
   

  
	
   

  	
  Section 3.5

  	
   

  	
  GOVERNING
  LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL

  	
   

  
	
   

  	
  Section 3.6

  	
   

  	
  Counterparts

  	
   

  
	
   

  	
  Section 3.7

  	
   

  	
  Severability

  	
   

  
	
   

  	
  Section 3.8

  	
   

  	
  Section Titles

  	
   

  



 

















 


SERVICER PERFORMANCE GUARANTY,
dated as of June 27, 2003 (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 “Servicer Performance Guarantor”).


 


ARTICLE I


 


DEFINITIONS AND INTERPRETATION


 


Section 1.1                                      Definitions.


 


“Administration
Agreement” means that certain Administration Agreement dated as of the
Conversion Restatement Date, among the Administrator, the Borrower 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.


 


“Bankruptcy Code”
means the provisions of title II of the United States Code, 11 U.S.C.
§§ 101, et  seq.


 


“Borrower” means
RFC, in its capacity as the Borrower under the Funding Agreement.


 


“Borrower Collateral”
is defined in Section 7.1 of the Funding Agreement.


 


“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 or the State of
Georgia.


 


“Collateral Agent”
means GE Capital, in its capacity as collateral agent for the Lender and the
Lender Secured Parties under the Related Documents.


 


“Collateral Agent
Agreement” means that certain Collateral Agent and Security Agreement dated
as of September 22, 1997, among Edison, the Depositary and GE Capital, in
its capacities as (a) the Collateral Agent, (b) the Operating Agent, (c) the
Liquidity Agent and (d) the Letter of Credit Provider.


 


“Commercial Paper”
means the short-term promissory notes of the Lender issued and sold from time
to time in the U.S. commercial paper market and other similar short-term debt
instruments from time to time issued by the Lender in other markets.


 


“Conversion
Restatement Date” means December 30, 2002.


 


“Depositary” means
Deutsche Bank Trust Company Americas (successor to Bankers Trust Company), or
any other Person designated as the successor Depositary pursuant to and in
accordance with the terms of the Depositary Agreement, in its capacity as
issuing and paying agent or trustee in connection with the issuance of
Commercial Paper.


 

















 


“Depositary Agreement”
means that certain Depositary Agreement dated September 22, 1997 by and
between Edison and the Depositary and consented to by the Liquidity Agent.


 


“Edison” means
Edison Asset Securitization, L.L.C., a limited liability company organized
under the laws of the State of Delaware.


 


“Funding Agreement”
means that certain Receivables Funding Agreement dated as of June 27,
2003, by and between the Borrower and the Lender which amends and restates that
certain Third Amended and Restated Receivables Funding and Servicing Agreement
dated as of September 25, 1997 and amended and restated as of
July 22, 1998, as of March 22, 2001, and as of December 30,
2002, among the Borrower, the Lender, the Servicer, the Operating Agent and the
Collateral Agent.


 


“GE Capital” is
defined in the preamble.


 


“GECS” means
General Electric Capital Services, Inc., a Delaware corporation.


 


“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 Servicer
Obligations” is defined in Section 2.1.


 


“Guaranty” is
defined in the preamble.


 


“Indenture” means
the master indenture to be entered into between the Trust and an indenture
trustee.


 


“Indenture Trustee”
means, at any time, the Person acting as indenture trustee under the Indenture.


 


“Initial Owner”
means the Trust, in its capacity as Initial Owner under the Servicing
Agreement.


 


“Interest Rate Swap”
means the ISDA Master Agreement, together with any schedules thereto and
confirmations thereof, between RFC and the Swap Counterparty, each dated as of
March 24, 1997 and amended and restated as of June 26, 2001, and any
other schedules thereto and confirmations thereof entered into thereafter, as
each of the foregoing has been and may in the future be amended, modified or
replaced.


 


“Issuer” means GE
Capital Credit Card Master Note Trust, a Delaware statutory trust.


 


“Lender” means
Edison, in its capacity as the Lender under the Funding Agreement.


 


“Lender Secured
Obligations” means the obligations of the Lender secured pursuant to the
Collateral Agent Agreement.


 


2

















 


“Lender Secured
Parties” means the holders of Lender Secured Obligations.


 


“Letter of Credit”
means that certain Irrevocable Letter of Credit No. EASLOC1 dated September 22,
1997, issued by the Letter of Credit Providers at the request of Edison in
favor of the Collateral Agent pursuant to the Letter of Credit Agreement.


 


“Letter of Credit
Agreement” means that certain Letter of Credit Reimbursement Agreement
dated as of September 22, 1997, among Edison, the Letter of Credit
Providers and the Collateral Agent.


 


“Letter of Credit
Providers” means, initially, GE Capital, in its capacity as issuer of the
Letter of Credit under the Letter of Credit Agreement, and thereafter its
successors and permitted assigns in such capacity.


 


“Liquidity Agent”
means GE Capital, in its capacity as agent for the Liquidity Lenders pursuant
to the Liquidity Loan Agreement.


 


“Liquidity Lenders”
means, collectively, GE Capital and any other provider of Liquidity Loans under
the Liquidity Loan Agreement.


 


“Liquidity Loan
Agreement” means that certain Amended and Restated  Liquidity Loan Agreement dated as of
September 25, 1997, among Edison and GE Capital, in its capacities as (a)
the Operating Agent, (b) the Collateral Agent, (c) the initial Liquidity Lender
and (d) the Liquidity Agent.


 


“Liquidity Loans”
means any and all borrowings by Edison under the Liquidity Loan Agreement.


 


“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.


 


“Monogram” means
Monogram Credit Card Bank of Georgia, a Bank organized under the laws of the
State of Georgia.


 


“Moody’s” means
Moody’s Investors Service, Inc. or any successor thereto.


 


“Note” is defined
in Section 2.5(a) of the Funding Agreement.


 


“Operating Agent”
means GE Capital, in its capacity as operating agent for the Lender under the
Related Documents.


 


“Originator” means
Monogram.


 


“Originator
Performance Guaranty” means that certain Originator Performance Guaranty
dated as of June 27, 2003, by GE Capital, as Originator Performance
Guarantor.


 


3

















 


“Owner” means,
when only a single “Owner” is referenced: 
before the date of dissolution of the Initial Owner, the Initial Owner,
and on the date of dissolution of the Initial Owner and thereafter, the
Successor Owner.  The phrase “either
Owner” means, either the Initial Owner (so long as it has not dissolved) or
the Successor Owner, and “Owners” means both the Initial Owner (so long
as it has not dissolved) and the Successor Owner.


 


“Person” means any
individual, sole proprietorship, partnership, joint venture, unincorporated
organization, trust, association, corporation (including a business trust),
limited liability company, institution, public benefit corporation, joint stock
company, Governmental Authority or any other entity of whatever nature.


 


“Rating Agency”
means Moody’s or S&P.


 


“Rating Agency
Condition” means, with respect to any action, that each Rating Agency has
notified the Lender and the Operating Agent that such action will not result in
a reduction or withdrawal of the rating of any outstanding Commercial Paper.


 


“Related Documents”
means the Funding Agreement, the Trust Receivables Purchase Agreement, the
Note, the Interest Rate Swap, the Trust Agreement, the Administration
Agreement, the RFS Holding, Inc. Letter of Credit, the Servicing Agreement,
this Guaranty, the Originator Performance Guaranty, the Indenture 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 the Funding Agreement 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.


 


“Restatement Date”
means June 27, 2003.


 


“RFC” means RFS
Funding Trust, a Delaware statutory trust and successor to RFS Funding
Incorporated, a Delaware corporation.


 


“RFS Holding, Inc.
Letter of Credit” is defined in the RFS Holding, Inc. Letter of Credit
Agreement.


 


“RFS Holding, Inc.
Letter of Credit Agreement” means that certain RFS Holding, Inc. Letter of
Credit Agreement dated as of June 27, 2003 among RFS Holding, Inc., the
Borrower and Edison.


 


“RFS Holding, L.L.C.”
means RFS Holding, L.L.C., a limited liability company organized under
the laws of the State of Delaware.


 


“S&P” means
Standard & Poor’s Ratings Services, a division of the McGraw-Hill
Companies, Inc., or any successor thereto.


 


4

















 


“Servicer” means
the Originator, in its capacity as the Servicer under the Servicing Agreement,
or any other Person designated as a successor servicer, pursuant to the
Servicing Agreement.


 


“Servicer Performance
Guarantor’ is defined in the preamble.


 


“Servicing Agreement”
means that certain Servicing Agreement dated as of June 27, 2003, among
Monogram, as Servicer, the Initial Owner and, upon its accession in accordance
with the terms thereof, the Successor Owner.


 


“Successor Owner”
means the Issuer, in its capacity as Successor Owner under the Servicing
Agreement.


 


“Swap Counterparty”
means General Electric Capital Corporation.


 


“Termination Event”
is defined in Section 8.2 of the Funding Agreement.


 


“Transferred
Receivable” is defined in the Funding Agreement.


 


“Trust” means the
Borrower.


 


“Trust Agreement”
means that certain Trust Agreement dated as of December 19, 2002 among RFS
Holding, L.L.C., General Electric Capital Services, Inc., and Trustee, as
amended and restated on June 27, 2003 among RFS Holding, L.L.C., RFS
Holding, Inc. (as assignee of General Electric Capital Services, Inc.) and
Trustee.


 


“Trustee”
means  Deutsche Bank Trust Company
Delaware, not in its individual capacity but solely as trustee pursuant to the
Trust Agreement.


 


“Trust Receivables
Purchase Agreement” means that certain Receivables Purchase and
Contribution Agreement dated as of June 27, 2003, between RFS Holding,
L.L.C. and the Trust.


 


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; and references to any
month, quarter or year refer to a fiscal month, quarter or year as determined
in accordance with the GE Capital fiscal calendar; (b) terms defined in
Article 9 of the UCC and not otherwise defined in herein are used as
defined in that Article; (c) references to any amount as on deposit or
outstanding on any particular date means such amount at the close of business
on such day; (d) 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 such
Agreement (or such certificate or document); (e) references to any Section,
Schedule or Exhibit are references to Sections, Schedules and


 


5

















 


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; (f) the term “including”
means “including without limitation”; (g) 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; (h) 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; (i) references
to any Person include that Person’s successors and assigns; and (j) headings
are for purposes of reference only and shall not otherwise affect the meaning
or interpretation of any provision hereof.


 


ARTICLE II


 


SERVICER PERFORMANCE GUARANTY


 


Section 2.1                                      Servicer
Performance Guaranty.  (a)  Unconditional Undertaking; Enforcement.  The Servicer Performance Guarantor hereby
unconditionally and irrevocably undertakes and agrees with and for the benefit
of the Owners and their respective permitted assignees to cause the due
performance and observance by the Servicer (for so long as Monogram or any
Affiliate of GE Capital is the Servicer under the Servicing Agreement) and its
assigns of all of the terms, covenants, conditions, agreements and undertakings
on the part of the Servicer, to be performed or observed under the Servicing
Agreement or any document delivered in connection with the Servicing Agreement
in accordance with the terms hereof and thereof including any agreement of the
Servicer to pay any money under the Servicing Agreement or any such other
document (all such terms, covenants, conditions, agreements and undertakings on
the part of the Servicer to be performed or observed by the Servicer being
collectively called the “Guaranteed Servicer Obligations”).  In the event that the Servicer shall fail in
any manner whatsoever to perform or observe any of the Guaranteed Servicer
Obligations when the same shall be required to be performed or observed under
the Servicing Agreement or any such other document (after giving effect to any
cure period), then the Servicer Performance Guarantor will itself duly perform
or observe, or cause to be duly performed or observed, such Guaranteed Servicer
Obligation, and it shall not be a condition to the accrual of the obligation of
the Servicer Performance Guarantor hereunder to perform or observe any
Guaranteed Servicer Obligation (or to cause the same to be performed or
observed) that either Owner or its permitted assignees shall have first made
any request of or demand upon or given any notice to the Servicer Performance
Guarantor or to the Servicer or its successors or assigns, or have instituted
any action or proceeding against the Servicer Performance Guarantor or the
Servicer or its successors or assigns in respect thereof.  Notwithstanding anything to the contrary
contained in this Guaranty, the obligations of the Servicer Performance
Guarantor hereunder in respect of the Servicer are expressly limited to the
Guaranteed Servicer Obligations.  The obligations
of the Servicer Performance Guarantor hereunder shall rank pari passu with the senior
unsecured debt of the Servicer Performance Guarantor.


 


(b)                                 Enforcement.  The Owners and their respective permitted
assignees may proceed to enforce the obligations of the Servicer Performance
Guarantor under this Guaranty without first pursuing or exhausting any right or
remedy which the Owners or their respective permitted assignees may have
against the Servicer any other Person or any collateral.


 


6

















 


(c)                                  Obligations
Absolute.  To the extent permitted
by law, the Servicer 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 Owners or their
respective permitted assignees with respect thereto.  The obligations of the Servicer 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 Guaranteed Servicer
Obligations, the Servicing Agreement 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 Servicer Obligations;


 


(iii)                               the
existence of any claim, setoff or other rights that the Servicer Performance
Guarantor may have at any time against the Servicer 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 the Servicer; or


 


(v)                                 any
impossibility or impracticality of performance, illegality, force majeure, any
act of any governmental or any other circumstance which might constitute a
legal or equitable defense available to, or a discharge of, the Servicer or the
Servicer 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 Servicer 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 the Servicer or the Servicer Performance Guarantor filed under the
Bankruptcy Code, whether pursuant to Section 502 of the Bankruptcy Code or
any other Section thereof.  The
Servicer Performance Guarantor further agrees that neither of the Owners shall
be under any obligation to marshall any assets in favor of or against or in
payment of any or all of the Guaranteed Servicer Obligations.  The Servicer Performance Guarantor further
agrees that, to the extent that a payment or payments are made by or on behalf
of the Servicer, which payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to the Servicer or the estate, trustee, receiver or any
other party relating to the Servicer, including the Servicer 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
Servicer 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 Servicer


 


7

















 


Performance Guarantor
under this Guaranty shall not be discharged except by performance as provided
herein.


 


(d)                                 Irrevocability.  The Servicer Performance Guarantor agrees
that its obligations under this Guaranty shall be irrevocable.  In the event that under applicable Law
(notwithstanding the Servicer Performance Guarantor’s agreement regarding the
irrevocable nature of its obligations hereunder) the Servicer Performance
Guarantor shall have the right to revoke this Guaranty, this Guaranty shall
continue in full force and effect until a written revocation hereof
specifically referring hereto, signed by the Servicer Performance Guarantor, is
actually received by the Owners at the address set forth on the signature page
hereto.  Any such revocation shall not
affect the right of the Owners or their respective permitted assignees to
enforce their respective rights under this Performance Guaranty with respect of
(i) any Guaranteed Servicer Obligation (including any Guaranteed Servicer
Obligation that is contingent or unmatured) which arose on or prior to the date
the aforementioned revocation was received by the Owners or (ii) any
Transferred Receivable which was purchased or otherwise acquired by the
Borrower or its respective permitted assignees on or prior to the date the
aforementioned revocation was received by the Owners.  For purposes of the preceding sentence, all Guaranteed Servicer
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 Owners, shall be covered by this Guaranty notwithstanding
such revocation.  If the Borrower or its
respective permitted assignees acquires an ownership interest in the
Transferred Receivables or takes other action in reliance on this Guaranty
after any such revocation by the Servicer Performance Guarantor but prior to
the receipt by the Owners of said written notice, the rights of the Borrower or
such permitted assignee 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
Termination Date.


 


(e)                                  Waiver.  The Servicer Performance Guarantor hereby
waives promptness, diligence, notice of acceptance and any other notice with
respect to any of the Guaranteed Servicer Obligations and this Guaranty, the
Servicing Agreement and any other document related thereto and any requirement
that either Owner or its respective permitted assignees exhaust any right or
take any action against the Servicer, any other Person or any collateral.


 


(f)                                    Subrogation.  The Servicer 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 Servicer Obligations shall
have been paid and performed in full. 
If any payment shall be made to the Servicer Performance Guarantor on
account of any subrogation rights at any time when all of the Guaranteed
Servicer 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 Lender and
forthwith be paid to the Lender in accordance with the Servicing Agreement and
the Liquidity Loan Agreement, to be credited and applied to the Guaranteed
Servicer Obligations to the extent then unsatisfied, in accordance with the
terms of the Servicing Agreement or any document delivered in connection with
the Servicing Agreement, as the case may be. 
In the event (i) the Servicer Performance Guarantor shall have satisfied
any of the Guaranteed Servicer Obligations and (ii) all of the Guaranteed Servicer
Obligations shall have been paid and performed in full, the Lender will at the
Servicer Performance Guarantor’s request and expense, execute and deliver to
the Servicer Performance Guarantor appropriate documents, without recourse and
without


 


8

















 


representation or
warranty of any kind, necessary to evidence or confirm the transfer by way of
subrogation to the Servicer Performance Guarantor of the rights of the Lender
or any permitted assignee, as the case may be, with respect to the Guaranteed
Servicer Obligations to which the Servicer Performance Guarantor shall have
become entitled by way of subrogation and thereafter the Lender and its
respective permitted assignees shall have no responsibility to the Servicer
Performance Guarantor or any other person with respect thereof.


 


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 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 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 party 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 party
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 Servicer
Performance Guarantor:


 


General Electric Capital
Corporation, as Servicer Performance Guarantor

1600 Summer Street, 6th Floor


Stamford, Connecticut
06927


Attention: Manager of
Finance – Securitization


Telephone:  (203)357-4756


Facsimile:  (203)357-6796


 


Section 3.2                                      Binding
Effect; Assignability.  (a)  This Guaranty shall be binding upon and
inure to the benefit of the Owners and their respective successors and permitted
assigns.  The Servicer 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 Owners and unless the Rating Agency Condition shall have
been satisfied with respect to any such assignment.  Any such purported assignment, transfer, hypothecation or other


 


9

















 


conveyance by the
Servicer Performance Guarantor without the prior express written consent of the
Owners shall be void.  The Owners may,
at any time, assign any of their respective 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 Servicer Performance Guarantor.


 


Section 3.3                                      Costs,
Expenses and Taxes.  (a)  The Servicer Performance Guarantor shall
reimburse the Owners 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, auditors and
the Rating Agencies retained in connection with the transactions contemplated
thereby and advice in connection therewith). The Servicer 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, auditors and the Rating Agencies retained in
connection with the transactions contemplated thereby and advice in connection
therewith). The Servicer Performance Guarantor shall reimburse each Owner 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
their respective rights hereunder or thereunder; and


 


(ii)                                  any
Litigation, contest or dispute (whether instituted by the Servicer Performance
Guarantor, such Owner 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, proceeding or action, and any appeal or review thereof, in
connection with a case commenced by or against the Servicer Performance
Guarantor or any other Person that may be obligated to the Owners by virtue of
this Guaranty, including any such Litigation, contest, dispute, suit,
proceeding or action arising in connection with any work-out or restructuring
of the transactions contemplated hereby during the pendency of one or more
Termination Events.


 


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 3.3,
all of which shall be payable, on demand, by the Servicer Performance Guarantor
to such Owner.  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.


 


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(b)                                 In
addition, the Servicer 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 Servicer Performance Guarantor agrees to
indemnify and save each Lender Indemnified Person 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 3.4                                      No
Waiver; Remedies.  The failure by
either Owner, at any time or times, to require strict performance by the
Servicer Performance Guarantor of any provision of this Guaranty shall not
waive, affect or diminish any right of the Owners 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 Servicer Performance Guarantor
contained in this Guaranty, and no breach or default by the Servicer
Performance Guarantor hereunder or thereunder, shall be deemed to have been
suspended or waived by either Owner unless such waiver or suspension is by an
instrument in writing signed by an officer of or other duly authorized
signatory of such Owner and directed to the Servicer Performance Guarantor, as
applicable, specifying such suspension or waiver.  The rights and remedies of the Owners under this Guaranty shall
be cumulative and nonexclusive of any other rights and remedies that the Owners
may have under any other agreement, including the other Related Documents, by
operation of law or otherwise.  Recourse
to the Borrower Collateral shall not be required.


 


Section 3.5                                      GOVERNING
LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.  (a) 
THIS GUARANTY AND THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER 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 (WITHOUT REGARD TO THE CONFLICT OF LAW
PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.


 


(b)                                  THE SERVICER 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 EACH PARTY
HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY
A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED,
FURTHER, THAT NOTHING IN THIS GUARANTY SHALL BE DEEMED OR OPERATE TO PRECLUDE
EITHER OWNER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER
JURISDICTION TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH
OWNER.  THE SERVICER PERFORMANCE
GUARANTOR SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY


 


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ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND THE SERVICER
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 SERVICER
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 THE ADDRESS SET FORTH BENEATH ITS
NAME ON THE SIGNATURE PAGES HEREOF 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 SERVICER PERFORMANCE
GUARANTOR DESIRES THAT DISPUTES ARISING WITH RESPECT TO THE 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 SERVICER 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, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY.


 


Section 3.6                                      Counterparts.  This Guaranty may be executed in any number
of separate counterparts, each of which shall collectively and separately
constitute one agreement.


 


Section 3.7                                      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 3.8                                      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 the guaranty.


 


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IN WITNESS WHEREOF,
the parties have caused this Servicer Performance Guaranty to be executed by
their respective officers thereunto duly authorized, as of the date first above
written.


 


 


	
   

  	
  GENERAL ELECTRIC CAPITAL

  
	
   

  	
  CORPORATION, as
  Servicer Performance

  
	
   

  	
  Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Iain J. Mackay

  
	
   

  	
   

  	
  Name:

  	
  Iain
  J. Mackay

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
					



 


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