EX-4.2



 







Exhibit 4.2



 




AMENDED AND RESTATED SUB-SERVICING AGREEMENT




Dated as of August 10, 2006




by and between




GENERAL ELECTRIC CAPITAL CORPORATION,




as the Master Servicer,




and




GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION,




as the Sub-Servicer



 




Amended and Restated

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	 	 	2	 
	SECTION 2.4
	 	Sub-Servicing Fees	 	 	2	 
	 
	 	 	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 	 	 
	REPRESENTATIONS AND WARRANTIES
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 3.1
	 	Representations and Warranties of the Sub-Servicer	 	 	2	 
	 
	 	 	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 4.1
	 	Notices	 	 	3	 
	SECTION 4.2
	 	GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL	 	 	4	 
	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	 






Amended and Restated

Sub-Servicing Agreement




i









 






     This AMENDED AND RESTATED SUB-SERVICING AGREEMENT, dated as of August 10, 2006 (this
“Agreement”), by and between GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation
(“GE Capital”), in its capacity as the master servicer (the “Master Servicer”) and
GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION, a Delaware corporation (“CDF”), in its
capacity as the sub-servicer (the “Sub-Servicer”).



     WHEREAS, the parties hereto executed a Sub-Servicing Agreement dated as of August 12, 2004
(the “Existing Sub-Servicing Agreement”), and now wish to amend and restate the Existing
Sub-Servicing Agreement.



     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 to amend and restate the Existing Sub-Servicing Agreement 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 Amended and Restated
Servicing Agreement, dated as of June 30, 2006 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 each Originator
other than GE Capital (such Transferred Receivables may be referred to collectively as 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) and (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 Section 2.6 of the Servicing Agreement and, as a result, Master
Servicer is obligated to purchase Transferred Receivables (constituting Sub-Serviced Assets) from
Owner, the Sub-Servicer 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.



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Sub-Servicing Agreement






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     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) 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.



Amended and Restated

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) 790-2762

Telecopy: (203) 796-5554




Amended and Restated

Sub-Servicing Agreement






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If to Sub-Servicer:



GE Commercial Distribution Finance Corporation,

   as Sub-Servicer

5595 Trillium Boulevard

Hoffman Estates, Illinois 60192

Attention:       General Counsel

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



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Sub-Servicing Agreement






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DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS
SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW.




     (c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST
QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH
APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES
DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION,
THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING
BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS 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



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Sub-Servicing Agreement






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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.



[Signatures Follow]




Amended and Restated

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/Margaret Fritz
	 

	 	 	 	Name:
	 	     Margaret Fritz
	 

	 	 	 	Title:
	 	     Attorney-in-Fact






Amended and Restated

Sub-Servicing Agreement







S-1









 








	 	 	 	 	 	 	 
	 	 	GE COMMERCIAL DISTRIBUTION FINANCE
	 	 	CORPORATION, as Sub-Servicer
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/Walter D. Bay
	 

	 	 	 	Name:
	 	     Walter D. Bay
	 

	 	 	 	Title:
	 	     Vice President and Secretary






Amended and Restated

Sub-Servicing Agreement





S-2