Exhibit 4.16
================================================================================
SUB-SERVICING AGREEMENT
Dated as of [ ], 2004
by and between
GENERAL ELECTRIC CAPITAL CORPORATION,
as the Master Servicer,
and
[NAME OF SUB-SERVICER],
as the Sub-Servicer
================================================================================
Sub-Servicing Agreement
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions 1
SECTION 1.2 Other Interpretive Matters 1
ARTICLE II
APPOINTMENT OF THE SUB-SERVICER; CERTAIN DUTIES
AND RESPONSIBILITIES OF THE SUB-SERVICER
SECTION 2.1 Appointment of the Sub-Servicer 1
SECTION 2.2 Duties and Responsibilities of the Sub-Servicer 1
SECTION 2.3 Reporting Requirements 1
SECTION 2.4 Sub-Servicing Fees 1
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of the Sub-Servicer 2
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 Notices 2
SECTION 4.2 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL 3
SECTION 4.3 Counterparts 5
SECTION 4.4 Severability 5
SECTION 4.5 Section Titles 5
SECTION 4.6 Termination 5
SECTION 4.7 Limited Recourse 5
Sub-Servicing Agreement
This SUB-SERVICING AGREEMENT, dated as of [ ], 2004 (this "Agreement"), by
and between GENERAL ELECTRIC CAPITAL CORPORATION ("GE Capital"), in its capacity
as the master servicer (the "Master Servicer") and [NAME OF SUB-SERVICER] ("[
]"), in its capacity as the sub-servicer (the "Sub-Servicer").
In consideration of the premises and the mutual covenants hereinafter
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in Section 1.1 of the Servicing
Agreement, dated as of [ ], 2004 by and between GE Dealer Floorplan Master Note
Trust ("Owner") and the Master Servicer (the "Servicing Agreement") .
SECTION 1.2 Other Interpretive Matters. For purposes of this Agreement,
the other interpretive matters set forth in Section 1.2 of the Servicing
Agreement shall govern.
ARTICLE II
APPOINTMENT OF THE SUB-SERVICER; CERTAIN DUTIES AND
RESPONSIBILITIES OF THE SUB-SERVICER.
SECTION 2.1 Appointment of the Sub-Servicer. The Master Servicer hereby
appoints the Sub-Servicer as its agent to sub-service the Transferred
Receivables originated by [name of Originator] (such assets, the "Sub-Serviced
Assets").
SECTION 2.2 Duties and Responsibilities of the Sub-Servicer. Subject to
the provisions of this Agreement, the Sub-Servicer shall service the
Sub-Serviced Assets under the same terms as the Master Servicer is bound under
the Servicing Agreement and with the same degree of care as required by Section
2.2 thereof. Without limiting the generality of the foregoing, the Sub-Servicer
shall comply with Section 2.6 of the Servicing Agreement as if all references
therein to "Master Servicer" were references to the Sub-Servicer.
SECTION 2.3 Reporting Requirements. The Sub-Servicer agrees that it shall
assist the Master Servicer in preparing and delivering the financial statements,
notices and other information contemplated by Section 2.7 of the Servicing
Agreement.
SECTION 2.4 Sub-Servicing Fees. On each Payment Date, the Master Servicer
will pay to the Sub-Servicer, as compensation for the Sub-Servicer's
subservicing activities hereunder and as reimbursement for the Sub-Servicer's
reasonable expenses in connection therewith, a fee equal to one-twelfth of the
product of (a) [ ] percent ( %) and (b) the total outstanding balance of the
Sub-Serviced Assets as of the beginning of the prior Monthly Period.
Sub-Servicing Agreement
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of the Sub-Servicer. The
Sub-Servicer represents and warrants to the Master Servicer as of the Closing
Date as follows:
(a) It is a corporation, duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation and is
duly qualified to do business, and is in good standing, in each
jurisdiction in which the servicing of the Sub-Serviced Assets hereunder
requires it to be so qualified, except where the failure to comply would
not reasonably be expected to have a [material adverse effect on the
ability of the Sub-Servicer to service the Sub-Serviced Assets].
(b) It has the power and authority to execute and deliver this
Agreement and to perform the transactions contemplated hereby.
(c) This Agreement has been duly authorized, executed and
delivered by the Sub-Servicer and constitutes its legal, valid and binding
obligation enforceable against it in accordance with its terms, subject to
any applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the
enforceability of creditors' rights generally and general equitable
principles, whether applied in a proceeding at law or in equity.
(d) No consent of, notice to, filing with or permits,
qualifications or other action by any Governmental Authority or any other
party is required for the due execution, delivery and performance by the
Sub-Servicer of this Agreement, other than consents, notices, filings and
other actions which have been obtained or made or where the failure to
obtain such consent or take such action, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
(e) There is no pending or, to its actual knowledge, threatened
Litigation of a material nature against or affecting it, its officers or
directors, or its property, in any court or tribunal, before any
arbitrator of any kind or before or by any Governmental Authority (i)
asserting the invalidity of this Agreement, or (ii) seeking any
determination or ruling that might materially and adversely affect the
validity or enforceability of this Agreement.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 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 party hereto
by any other party hereto, or whenever any party hereto desires to give or serve
upon any other party hereto any communication with respect to this Agreement,
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
Sub-Servicing Agreement
2
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 facsimile or other electronic transmission (with such transmission promptly
confirmed by delivery of a copy by personal delivery or United States Mail as
otherwise provided in this Section 4.1), (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. Failure or delay in
delivering copies of any notice, demand, request, consent, approval, declaration
or other communication to any Person designated in any written notice provided
hereunder to receive copies shall in no way adversely affect the effectiveness
of such notice, demand, request, consent, approval, declaration or other
communication. Notwithstanding the foregoing, whenever it is provided herein
that a notice is to be given to any other party hereto by a specific time, such
notice shall only be effective if actually received by such party 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 Master Servicer:
General Electric Capital Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Securitizations
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Sub-Servicer:
[ ],
as Sub-Servicer
[ ]
[ ]
Attention: [ ]
Telephone: [ ]
Facsimile: [ ]
SECTION 4.2 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW,
BUT WITHOUT REGARD TO ANY OTHER
Sub-Servicing Agreement
3
CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES
OF AMERICA.
(a) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL
HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF
OR RELATING TO THIS AGREEMENT; 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. EACH
PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY
WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS
TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE
BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS
ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 4.1 AND THAT SERVICE SO MADE
SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT
THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER
POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY
PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(b) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED
AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS
TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND
OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Sub-Servicing Agreement
4
SECTION 4.3 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement. Executed counterparts may be delivered electronically.
SECTION 4.4 Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement 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 Agreement.
SECTION 4.5 Section Titles. The section titles and table of contents
contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the
parties hereto.
SECTION 4.6 Termination. This Agreement and the terms hereof shall remain
in full force and effect until the earliest of (a) the date on which the
outstanding balances of the Sub-Serviced Assets have been reduced to zero, (b)
the date that the Master Servicer gives the Sub-Servicer notice that this
Agreement is terminated and (c) 30 days (or earlier in the discretion of the
Master Servicer) after the Sub-Servicer gives the Master Servicer written notice
that it wishes to terminate this Agreement; provided, however, the provisions
set forth in Sections 4.7, 4.8 and 4.9 shall survive any termination of this
Agreement.
SECTION 4.7 Limited Recourse.
(a) The obligations of the Master Servicer under this Agreement
are solely the obligations of the Master Servicer. No recourse shall be
had for any obligation or claim arising out of or based upon this
Agreement against any incorporator, shareholder, officer, manager, member
or director, past, present or future, of the Master Servicer or of any
successor or of its constituent members or its other Affiliates, either
directly or through the Master Servicer or any successor, whether by
virtue of any constitution, statute or rule of law or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by
acceptance hereof and as part of the consideration for the acceptance
hereof, expressly waived and released. For avoidance of doubt, the
Sub-Servicer shall have no claim against Owner or the Transferor arising
under or in connection with this Agreement.
(b) The obligations of the Sub-Servicer under this Agreement are
solely the obligations of the Sub-Servicer. No recourse shall be had for
the payment of any amount owing hereunder or any other obligation or claim
arising out of or based upon this Agreement, against any shareholder,
employee, officer, manager, member or director, agent or organizer, past,
present or future, of the Sub-Servicer or of any successor thereto, either
directly or through the Sub-Servicer or any successor thereto, whether by
virtue of any constitution, statute or rule of law or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by
acceptance hereof and as part of the consideration for the acceptance
hereof, expressly waived and released. For avoidance of doubt, the
Sub-Servicer shall not be liable for uncollectible Sub-Serviced Assets.
Sub-Servicing Agreement
5
[Signatures Follow]
Sub-Servicing Agreement
6
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective representatives thereunto duly authorized as of the date
first above written.
GENERAL ELECTRIC CAPITAL CORPORATION,
as Master Servicer
By: ____________________________________________
Name:
Title:
Sub-Servicing Agreement
S-1
[NAME OF SUB-SERVICER], as Sub-Servicer
By: ____________________________________________
Name:
Title:
Sub-Servicing Agreement
S-2
