Exhibit 4.1

 

EXECUTION COPY

 

INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE OF MASTER SERVICER (this “Agreement”), dated as of March 1, 2016, by and among GE DEALER FLOORPLAN MASTER NOTE TRUST, a Delaware statutory trust (the “Owner”), GE CAPITAL US HOLDINGS, INC., a Delaware corporation (the “Resigning Master Servicer”), and WELLS FARGO BANK, N.A., a national banking association (the “Successor Master Servicer”).

 

RECITALS

 

WHEREAS, the Owner and the Resigning Master Servicer are parties to a Second Amended and Restated Servicing Agreement, dated as of July 11, 2014 (as amended, the “Servicing Agreement”);

 

WHEREAS, the Resigning Master Servicer wishes to resign as Master Servicer under the Servicing Agreement; the Owner wishes to appoint the Successor Master Servicer to succeed the Resigning Master Servicer as Master Servicer under the Servicing Agreement; and the Successor Master Servicer wishes to accept appointment as Master Servicer under the Servicing Agreement; and

 

WHEREAS, the Resigning Master Servicer wishes to assign all of its rights, powers, trusts and duties as Master Servicer under the Amended and Restated Sub-Servicing Agreement, dated as of August 10, 2006 (as amended, the “Sub-Servicing Agreement”), between the Resigning Master Servicer and GE Commercial Distribution Finance LLC, to the Successor Master Servicer, and the Successor Master Servicer wishes to assume such rights, powers, trusts and duties as Master Servicer under the Sub-Servicing Agreement;

 

NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements, provisions and covenants contained in this Agreement, the parties agree as follows:

 

ARTICLE ONE

THE RESIGNING MASTER SERVICER

 

Section 1.          Definitions. Capitalized terms used in this Agreement and not otherwise defined herein are used as defined in (or by reference in) the Servicing Agreement or, if not defined therein, in (or by reference in ) the Sub-Servicing Agreement.

 

Section 2.          Resignation. Pursuant to Section 6.1(a) of the Servicing Agreement, the Resigning Master Servicer hereby notifies the Owner that the Resigning Master Servicer is hereby resigning as Master Servicer under the Servicing Agreement, effective as of the Effective Time (as defined in Section 9 below). The Owner hereby consents to the resignation of the Resigning Master Servicer.

 

Section 3.          Appointment. The Owner hereby appoints the Successor Master Servicer as Master Servicer under the Servicing Agreement, effective as of the Effective Time, and confirms to the Successor Master Servicer all the rights, powers, trusts and duties of the Master Servicer under the Servicing Agreement.

 

 

Section 4.          Acceptance of Appointment. (a) The Successor Master Servicer hereby accepts its appointment as Master Servicer under the Servicing Agreement and agrees to perform the duties and obligations set forth therein and shall hereby be vested with all the rights, powers, trusts and duties of the Master Servicer under the Servicing Agreement.

 

(b) This Agreement shall not constitute (i) a waiver by any of the parties hereto of any obligation or liability which the Resigning Master Servicer may have incurred in connection with its services as Master Servicer under the Servicing Agreement or (ii) an assumption by the Successor Master Servicer of any liability of the Resigning Master Servicer arising out of a breach by the Resigning Master Servicer of its duties under the Servicing Agreement. This Agreement does not constitute a waiver or assignment by the Resigning Master Servicer of any compensation, reimbursement, expenses or indemnity to which it is or may be entitled pursuant to the Servicing Agreement. For the avoidance of doubt, the Resigning Master Servicer shall be entitled to the accrued and unpaid Monthly Servicing Fee owing to it to but excluding March 1, 2016; however, such Monthly Servicing Fee shall be payable solely by the Successor Master Servicer and the Owner may pay all Monthly Servicing Fees to the Successor Master Servicer after the date hereof.

 

Section 5.          Sub-Servicing Agreement. (a) Notwithstanding Section 6.3(b) of the Servicing Agreement, the provisions of which are hereby waived, the Sub-Servicing Agreement is not terminated and continues on as set forth in this Section 5.

 

(b)          In connection with its resignation as Master Servicer under the Servicing Agreement, the Resigning Servicer hereby assigns all of its rights, powers, trusts and duties as Master Servicer under the Sub-Servicing Agreement to the Successor Master Servicer, effective as of the Effective Time, and the Successor Master Servicer hereby assumes all of the rights, powers, trusts and duties of the Master Servicer under the Sub-Servicing Agreement, effective as of the Effective Time.

 

(c) This Agreement shall not constitute (i) a waiver by any of the parties hereto of any obligation or liability which the Resigning Master Servicer may have incurred in connection with its services as Master Servicer under the Sub-Servicing Agreement or (ii) an assumption by the Successor Master Servicer of any liability of the Resigning Master Servicer arising out of a breach by the Resigning Master Servicer of its duties under the Sub-Servicing Agreement. This Agreement does not constitute a waiver or assignment by the Resigning Master Servicer of any compensation, reimbursement, expenses or indemnity to which it is or may be entitled pursuant to the Sub-Servicing Agreement.

 

(d) GE Commercial Distribution Finance LLC, as Sub-Servicer under the Sub-Servicing Agreement, hereby acknowledges and agrees that, effective as of the Effective Time, the Successor Master Servicer shall be the Master Servicer under the Sub-Servicing Agreement and agrees to continue to sub-service the Transferred Receivables as agent for the Successor Master Servicer on the terms set forth in the Sub-Servicing Agreement.

 

 

Section 6.          Representations of Successor Master Servicer. The Successor Master Servicer hereby represents and warrants to the Resigning Master Servicer and to the Owner that:

 

(i) The Successor Master Servicer is qualified and eligible under Section 6.2 of the Servicing Agreement to act as Master Servicer under the Servicing Agreement;

 

(ii) The Successor Master Servicer is an established financial institution having a net worth of not less than five hundred million dollars ($500,000,000) and its regular business includes the servicing of receivables; and

 

(iii) This Agreement has been duly authorized, executed and delivered on behalf of the Successor Master Servicer and constitutes its legal, valid and binding obligation.

 

Section 7.          Notices. For the purposes of Section 8.1 of the Servicing Agreement and Section 4.1 of the Sub-Servicing Agreement, all notices, whether sent electronically or mailed, will be deemed received as provided in Section 8.1 of the Servicing Agreement or Section 4.1 of the Sub-Servicing Agreement, as applicable, when sent pursuant to the following instructions:

 

TO THE RESIGNING MASTER SERVICER:

 

GE Capital US Holdings, Inc.

901 Main Avenue
Norwalk, Connecticut 06851
Attention: Michael Paolillo
michael.paolillo@ge.com

 

TO THE SUCCESSOR MASTER SERVICER:

 

Wells Fargo Bank, N.A.
Wells Fargo Law Department

D1053-300

301 South College St.

Charlotte, North Carolina 28202

Attention: Jeff D. Blake, Senior Counsel

jeff.blake@wellsfargo.com

 

With a copy to:

 

Wells Fargo & Company

MAC A0194-279, 27^th Floor

45 Fremont Street

San Francisco, CA 94105

Attention: Keith Jackson, Senior Counsel and Corporate Secretary

KeithJackson@wellsfargo.com

 

  

TO THE OWNER:

 

GE Dealer Floorplan Master Note Trust

c/o BNY Mellon Trust of Delaware
Bellevue Park Corporate Center
301 Bellevue Parkway, 3^rd Floor
Wilmington, Delaware 19809

With a copy to:

 

Wells Fargo Bank, N.A.
Wells Fargo Law Department

D1053-300

301 South College St.

Charlotte, North Carolina 28202

Attention: Jeff D. Blake, Senior Counsel

jeff.blake@wellsfargo.com

 

With a copy to:

 

Wells Fargo & Company

MAC A0194-279, 27^th Floor

45 Fremont Street

San Francisco, CA 94105

Attention: Keith Jackson, Senior Counsel and Corporate Secretary

KeithJackson@wellsfargo.com

 

Section 8.             Limitation of Liability of the Trustee. It is expressly understood and agreed by the parties hereto that (a) this document is executed and delivered by BNY Mellon Trust of Delaware, not individually or personally, but solely as Trustee of the Trust, (b) each of the representations, undertakings and agreements herein made on the part of the Trust is made and intended not as a personal representation, undertaking and agreement by BNY Mellon Trust of Delaware but is made and intended for the purpose of binding only the Trust, (c) nothing herein contained shall be construed as creating any liability on BNY Mellon Trust of Delaware, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto and (d) under no circumstances shall BNY Mellon Trust of Delaware be personally liable for the payment of any indebtedness or expenses of the Trust or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this document.

 

Section 9.             Miscellaneous. (a) This Agreement is entered into and the resignation, appointment and acceptance effected hereby shall be effective as of 12:01 a.m. (New York time) on March 1, 2016 (the “Effective Time”); provided, that (i) each of the Owner, the Resigning Master Servicer and the Successor Master Servicer shall have executed a counterpart to this Agreement and (ii) the Owner shall have provided prior written notice of the appointment of the Successor Master Servicer to the Rating Agencies and the Indenture Trustee.

 

 

(b)          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 SECTION 5-1401(1) 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.

 

(c)            This Agreement may be executed in any number of counterparts each of which shall be an original, but such counterparts shall together constitute but one and the same Agreement. Delivery of an executed counterpart of this Agreement by electronic means shall be equally as effective as delivery of an original executed counterpart of this Agreement.

 

[Signature pages follow.]

 

  

IN WITNESS WHEREOF, the parties hereto have caused this Instrument of Resignation, Appointment and Acceptance to be duly executed as of the date first above written.

 

	GE DEALER FLOORPLAN MASTER NOTE TRUST
		By: BNY Mellon Trust of Delaware, not in its individual capacity, but solely on behalf of the Owner
	By:	/s/ Kristine K. Gullo
		Name: Kristine K. Gullo
		Title:   Vice President

 

 

	GE CAPITAL US HOLDINGS, INC.,
	as Resigning Master Servicer
	By:	/s/ Thomas A. Davidson
		Name: Thomas A. Davidson
		Title:   Authorized Signatory

 

 

	WELLS FARGO BANK, N.A., as Successor Master Servicer
	By:	/s/ Lisa K. Lenton
		Name: Lisa K. Lenton
		Title:   Senior Vice President

 

 

Solely for the purposes of the acknowledgement and agreement set forth in Section 5(d) of this Agreement:

 

	GE COMMERCIAL DISTRIBUTION FINANCE LLC, as Sub-Servicer
	By:	/s/ John E. Peak
		Name: John E. Peak
		Title:   Vice President