exv4w10



 





Exhibit 4.10










SUB-SERVICING AGREEMENT




Dated as of August 12, 2004




by and between




GENERAL ELECTRIC CAPITAL CORPORATION,




as the Master Servicer,




and




TRANSAMERICA COMMERCIAL FINANCE CORPORATION,




as the Sub-Servicer










Sub-Servicing Agreement




 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I            DEFINITIONS AND INTERPRETATION
	 	 	1	 
	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
	 	 	1	 
	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
	 	 	2	 
	ARTICLE III        REPRESENTATIONS AND WARRANTIES
	 	 	2	 
	SECTION 3.1      Representations and Warranties of the Sub-Servicer
	 	 	2	 
	ARTICLE IV        MISCELLANEOUS
	 	 	3	 
	SECTION 4.1      Notices
	 	 	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




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     This SUB-SERVICING AGREEMENT, dated as of August 12, 2004 (this
“Agreement”), by and between GENERAL ELECTRIC CAPITAL CORPORATION (“GE
Capital”), in its capacity as the master servicer (the “Master Servicer”) and
TRANSAMERICA COMMERCIAL FINANCE CORPORATION, (“Transamerica”), 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 August 12, 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 Transamerica and the Transferred Receivables
originated by Brunswick Acceptance Company, LLC (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 clauses (a), (b), (c) of Section 2.6 of the
Servicing Agreement as if all references therein to “Master Servicer” were
references to the Sub-Servicer. If Sub-Servicer fails to comply with clause
(b) or clause (c) of the Servicing Agreement and, as a result, Master Servicer
is required to purchase Transferred Receivables (constituting Sub-Serviced
Assets) from Owner, the Sub-Service shall purchase such Transferred Receivables
from the Master Servicer for the same price that the Master Servicer is
required to pay for such Transferred Receivables pursuant to such Section 2.6.
Sub-Servicer shall not make any Servicer Advances.



     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.



Sub-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) two percent (2%) and (b) the total outstanding balance of the
Sub-Serviced Assets as of the beginning of the prior Monthly Period.



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.



Sub-Servicing Agreement




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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 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

44 Old Ridgebury Road

Danbury, Connecticut 06810

Attn: Capital Market, Operations

Telephone:  (203) 796-5518

Telecopy:     (203) 796-5554


If to Sub-Servicer:


Transamerica Commercial Finance Corporation,

    as Sub-Servicer

5595 Trillium Boulevard

Hoffman Estates, Illinois 60192

Attention: General Counsel



Sub-Servicing Agreement




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Telephone:  (847) 747-7552

Facsimile:     (847) 747-7455



     SECTION 4.2 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.




     (a) 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 CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF
THE UNITED STATES OF AMERICA.




     (b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL
HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY 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.




     (c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED
AND EXPERT



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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.



     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-



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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.



[Signatures Follow]




Sub-Servicing Agreement




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     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: /s/ Mark Hutchinson
	

	 	 	 	Name: Mark Hutchinson
	

	 	 	 	Title: Vice President







Sub-Servicing Agreement





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	 	 	TRANSAMERICA COMMERCIAL FINANCE

CORPORATION, as Sub-Servicer
	 
	 	 	 	 	 	 
	

	 	 	 	By:
	 	/s/ David A. Kaminsky
	

	 	 	 	 	 	Name: David A. Kaminsky
	

	 	 	 	 	 	Title: Director & Treasurer







Sub-Servicing Agreement





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