Exhibit 4.7
SECOND OMNIBUS AMENDMENT TO
AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
AND SUPPLEMENTS
THIS SECOND AMENDMENT TO AMENDED AND RESTATED POOLING AND SERVICING
AGREEMENT AND SUPPLEMENTS, dated as of as of April 1, 2003 (this "Amendment"),
is among GE Commercial Distribution Finance Corporation ("CDF"), a Nevada
corporation (formerly known as Deutsche Financial Services Corporation), as
Servicer, Wilmington Trust Company ("WTC") (successor to The Chase Manhattan
Bank), as Trustee, and CDF Financing, L.L.C. ("LLC"), a Delaware limited
liability company.
BACKGROUND
The parties are parties to the following agreements:
1. the Amended and Restated Pooling and Servicing Agreement,
dated as of April 1, 2000, as amended (as so amended, the "PSA") among the
LLC, CDF, as Servicer, and WTC, as Trustee;
2. the Series 2000-2 Supplement, dated as of April 1, 2000, as
amended (as so amended, the "Series 2000-2 Supplement"), among the LLC,
CDF, as Servicer, and WTC, as Trustee; and
3. the Series 2000-4 Supplement, dated as of July 1, 2000, as
amended (as so amended, the "Series 2000-4 Supplement"); the Series 2000-2
Supplement and the Series 2000-4 Supplement may be referred to
collectively as the "Supplements"; the Supplements and the PSA may be
referred to collectively as the "Agreements" and individually as an
"Agreement"), among the LLC, CDF, as Servicer, and WTC, as Trustee.
The parties hereto desire to amend each of the Agreements as set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Definitions. Capitalized terms defined in an Agreement and used
but not otherwise defined herein have the meanings given to them in such
Agreement.
SECTION 2. Section 1.1 of the PSA.
(a) Section 1.1 of the PSA is hereby amended by amending the following
defined terms to read as follows:
"Dealer Overconcentration" shall be determined by the Servicer on
each Determination Date. A Dealer Overconcentration shall exist with
respect to a Dealer (an "Overconcentrated Dealer") if the aggregate
amount of the Principal Receivables owed by such Dealer exceeds the
applicable Dealer Concentration Limit. "Dealer Concentration Limit"
is a dollar amount calculated as a percentage of the Pool Balance as
of the end of each Collection Period (the "Concentration Limit
Percentage"). If the Dealer is among the eight Dealers owing the
largest amount of Principal Receivables as of the end of a
Collection Period (the "Top 8 Dealers"), the Concentration Limit
Percentage is currently two and one-half percent (2.5%). If the
Dealer is not among the Top 8 Dealers, the Concentration Limit
Percentage is currently two percent (2%). The Concentration Limit
Percentage for the Top 8 Dealers, as well as the Concentration Limit
Percentage for the other Dealers, may be increased or decreased from
time to time by the Transferor upon notice to the Trustee and the
Servicer without the consent of any Investor Certificateholder if
the Rating Agency Condition has been satisfied in connection with
that increase or decrease. For purposes of the definitions of Dealer
Overconcentration, Overconcentrated Dealer and Top 8 Dealers, a
Dealer and all of its Affiliates that are Dealers shall be
considered to be a single Dealer. For so long as a Dealer
Overconcentration exists, allocations of Principal Collections,
Non-Principal Collections, Defaulted Amounts and Miscellaneous
Payments related to an Overconcentrated Dealer shall be allocated in
accordance with Section 4.5.
"Manufacturer Overconcentration" on any Determination Date shall
mean, with respect to all Accounts covered by a Floorplan Agreement
with the same Manufacturer as obligor, the excess of (a) the
aggregate of all amounts of Principal Receivables in such Accounts
on the last day of the Collection Period immediately preceding such
Determination Date that are covered by such Floorplan Agreement over
(b) 15% of the Pool Balance on the last day of such immediately
preceding Collection Period (in the case of each of the
Manufacturers that is among the three Manufacturers which are
parties to Floorplan Agreements covering the largest aggregate
amounts of Principal Receivables) or 10% of the Pool Balance on the
last day of such immediately preceding Collection Period (in the
case of Manufacturers other than such top three Manufacturers (or,
in each case, if the Rating Agency Condition is satisfied, such
larger percentage of such Pool Balance as is stated in the notice
from each applicable Rating Agency in connection with the
satisfaction of such Rating Agency Condition).
"Net Receivables Rate" shall mean, with respect to a Payment Date
and unless otherwise specified for a Series in the related
Supplement, (i) the weighted average of the interest rates borne by
the Receivables during the second Collection Period preceding such
Payment Date (interest payments on the Receivables at such rates
being due and payable in the Collection Period preceding such
Payment Date) plus (ii) the product of (x) the Monthly Payment Rate
for the Collection Period preceding such Payment Date, (y) the
Discount Factor for such Payment Date and (z) twelve less (iii) 2%
per annum unless the
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Monthly Servicing Fee has been waived (other than a deemed waiver)
pursuant to each Supplement, in which case solely, for that Payment
Date, "2% per annum" will be deemed to be replaced by "0% per
annum".
"Product Line Overconcentration" on any Determination Date shall
mean, with respect to Accounts created pursuant to Wholesale
Financing Agreements, the excess of (a) the aggregate of all amounts
of Principal Receivables in such Accounts that represent financing
for a single Product line (according to CDF's classification system)
on the last day of the Collection Period immediately preceding such
Determination Date over (b) (i) twenty-five percent (25%) of the
Pool Balance on the last day of such immediately preceding
Collection Period if such Product line is not recreational vehicles
or boats or boat motors, (ii) thirty-five percent (35%) of that Pool
Balance if that product line is recreational vehicles, or (iii)
thirty-five percent (35%) of that Pool Balance if that product line
is boats or boat motors or, in the case of clause (i), (ii) or
(iii), if the Rating Agency Condition is satisfied, such larger
percentage of such Pool Balance as is stated in the applicable
notice from each applicable Rating Agency in connection with the
satisfaction of such Rating Agency Condition.
"Rating Agency Condition" shall mean, with respect to any action,
that each Rating Agency shall have notified the Transferor or the
Servicer or the Trustee in writing that such action shall not result
in a reduction or withdrawal of such Rating Agency's rating of any
outstanding Series or Class with respect to which it is a Rating
Agency. The Rating Agency Condition shall be inapplicable at any
time that no such Series or Class is outstanding.
"Specified Party" means any of the Transferor, General Electric
Capital Corporation, the Limited Partnership, the Servicer, CDF, if
it is not the Servicer, GECS, so long as CDF is an Affiliate of
GECS, or, if GECS has merged or consolidated with another Person,
the surviving Person (but only so long as CDF is an Affiliate of the
surviving Person) or any other Person which is the direct,
controlling shareholder of CDF.
"Unconcentrated Pool Balance" shall mean, as of the end of any
Collection Period, the lesser of: (1) the Pool Balance at the end of
such Collection Period, and (2)(a)(i) such Pool Balance minus (ii)
the sum of the Principal Receivables in all Accounts of all
Overconcentrated Dealers at the end of such Collection Period,
divided by (b)(i) 100% minus (ii) the sum of (x) the product of (A)
the number of Overconcentrated Dealers as to which the applicable
Concentration Limit Percentage is 2.5% and (B) 2.5%, (y) the product
of (A) the number of Overconcentrated Dealers as to which the
applicable Concentration Limit Percentage is 2% and (B) 2%, and (z)
the product of (A) the number of Overconcentrated Dealers as to
which the applicable Concentration Limit Percentage is other than
2.5% or 2% and (B) in each case, such applicable Concentration Limit
Percentage.
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(b) The definition of "Eligible Investments" in Section 1.1 of the PSA
is hereby further amended by inserting "and" after the semicolon at the end of
clause (e) thereof, by replacing ", and" at the end of clause (f) thereof with a
period, and by deleting clause (g) thereof.
(c) Section 1.1 of the PSA is hereby further amended by adding the
following terms thereto in appropriate alphabetical order:
"Payment Date" shall mean the fifteenth day of each month or, if
such day is not a Business Day, the next succeeding Business Day.
"Transferor" shall mean CDF Financing, L.L.C., and its successors.
(d) Section 2.4(a) of the PSA is hereby amended by adding the following
new subsection at the end thereof:
"(v) The additional representations and warranties set forth in
Schedule 3 hereto are true and correct."
(e) Section 4.3 of the PSA is hereby amended by adding the following new
paragraph (f) at the end thereof:
"(f) For avoidance of doubt, Collections that are not required by
this Agreement or a Supplement (i) to be held or deposited in a
Trust account, or (ii) to be paid to a Person specified in this
Agreement or a Supplement, may be released to the Transferor."
(f) Subsection 11.14(i) of the PSA is hereby amended by deleting the
words "New York" where they appear in such subsection and replacing them with
the word "Delaware".
(g) Section 11.15 of the PSA is hereby amended by deleting the first
sentence of such section and replacing it with the following sentence:
"The Trustee shall maintain at its expense in Wilmington, Delaware
or New York, New York, an office or offices or agency or agencies
where notices and demands to or upon the Trustee in respect of the
Certificates and this Agreement may be served."
(h) The PSA is hereby amended by adding Schedule 3 attached hereto as
Schedule 3 to the PSA.
(i) Subsection 13.6(a)(iii) of the PSA is hereby amended by inserting
the following phrase at the end of such subsection: "with a copy to Deutsche
Bank Trust Company Americas, as agent, 000 Xxxx Xxxxxx, XX XXX00-0000, Xxx Xxxx,
XX 00000 Attention: Corporate Trust & Agency Services / Structured Finance
Group".
SECTION 3. Series 2000-2 Supplement.
Section 6.1(d) of the Series 2000-2 Supplement is hereby amended to
read in its entirety as follows:
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"(d) on any Determination Date occurring in the months of November
through June, the average of the Monthly Payment Rates for the three
preceding Collection Periods is less than twenty percent (20%) (or a
lower percentage if the Rating Agency Condition has been satisfied
with respect to that lower percentage) or on any Determination Date
occurring in the months of July through October, the average of the
Monthly Payment Rates for the three preceding Collection Periods is
less than twenty-two and one-half percent (22.5%) (or a lower
percentage if the Rating Agency Condition has been satisfied with
respect to that lower percentage); or".
SECTION 4. Series 2000-4 Supplement.
(a) Section 6.1(c) of the Series 2000-4 Supplement is hereby amended to
read in its entirety as follows:
"(c) on any Determination Date occurring in the months of November
through June, the average of the Monthly Payment Rates for the three
preceding Collection Periods is less than twenty percent (20%) (or a
lower percentage if (i) the Rating Agency Condition has been
satisfied with respect to that lower percentage, and (ii) the
Managing Agents shall have consented in writing to such lower
percentage, which consent shall not be unreasonably withheld) or on
any Determination Date occurring in the months of July through
October, the average of the Monthly Payment Rates for the three
preceding Collection Periods is less than twenty-two and one-half
percent (22.5%) (or a lower percentage if (i) the Rating Agency
Condition has been satisfied with respect to that lower percentage,
and (ii) the Managing Agents shall have consented in writing to such
lower percentage, which consent shall not be unreasonably withheld);
or".
(b) Section 6.1(e) of the Series 2000-4 Supplement is hereby amended by
inserting "in" immediately after "amounts on deposit".
SECTION 5. Submission to Jurisdiction. Each of the parties to this
Amendment hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Amendment or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of such action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Person at its
address set forth in Section 13.6 of the PSA or at such other address notified
to the other parties to this Amendment; and
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(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to xxx
in any other jurisdiction.
SECTION 6. Distribution Date Statement. The calculations set forth in the
Distribution Date Statement to be delivered for April, 2003 shall be determined
after giving effect to the amendments set forth in this Amendment.
SECTION 7. Miscellaneous. (a) THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS OF THE STATE OF
NEW YORK).
(b) This Amendment may be executed in any number of counterparts and by
the different parties on separate counterparts, each of which when so executed
shall be deemed to be an original and all of which when taken together shall
constitute one and the same Amendment. Executed counterparts of this Amendment
may be delivered by facsimile transmission or other electronic transmission.
(c) The Agreements, as amended hereby, remain in full force and effect.
Any reference to an Agreement (whether in such Agreement or in any other
agreement or document) after the date hereof shall be deemed to refer to such
Agreement as amended hereby, unless otherwise expressly stated therein.
(d) The section titles contained in this Amendment are and shall be
without substantive meaning or content of any kind whatsoever.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date and year first above written.
WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as Trustee
By: Deutsche Bank Trust Company Americas
(f/k/a Bankers Trust Company), as Agent
By: /s/ Xxxxx Xxxx
------------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
S-1 Second Omnibus Amendment - CDF
GE COMMERCIAL DISTRIBUTION FINANCE
CORPORATION, as Servicer
By: /s/ Xxxxxx X. Bay
------------------------------------------
Name: Xxxxxx X. Bay
Title: Attesting Secretary
S-2 Second Omnibus Amendment - CDF
CDF FINANCING, L.L.C.
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Manager
S-3 Second Omnibus Amendment - CDF
SCHEDULE 3
Perfection Representations and Warranties
1. General. This Agreement creates a valid and continuing security
interest (as defined in the applicable UCC) in all of the Transferor's right,
title and interest in, to and under (i) the Receivables, (ii) the Collateral
Security and all proceeds thereof, (iii) the Floorplan Agreements and (iv) the
Receivables Contribution and Sale Agreement (clauses (i), (ii), (iii) and (iv)
may be referred to herein as the "Receivables Property") in favor of the
Trustee, which (a) is enforceable against creditors of and purchasers from the
Transferor, as such enforceability may be limited by applicable law, now or
hereafter in effect, and by general principles of equity (whether considered in
a suit at law or in equity), and (b) will be prior to all other Liens (other
than Liens permitted pursuant to paragraph 5 below) in such property.
2. Characterization. The Receivables constitute "accounts", "general
intangibles" or "tangible chattel paper" within the meaning of UCC Section
9-102. The Transferor has taken all steps necessary to perfect its security
interest in the rights of the Limited Partnership in the property securing the
Receivables Property.
3. Creation. Immediately prior to the conveyance of the Receivables
pursuant to this Agreement, the Transferor owns and has good and marketable
title to, or has a valid security interest in the Limited Partnership's rights
in, the Receivables Property free and clear of any Lien, claim or encumbrance of
any Person.
4. Perfection. The Transferor has caused the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security interest
granted to the Trustee under this Agreement in the Transferor's rights in the
Receivables Property.
5. Priority. Other than the security interests granted to the Trustee
pursuant to this Agreement, the Transferor has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Receivables
Property except as permitted by this Agreement. The Transferor has not
authorized the filing of and is not aware of any financing statements against
the Transferor that include a description of collateral covering the Receivables
Property other than any financing statement (i) relating to the security
interests granted to the Trustee under this Agreement, (ii) that has been
terminated, or (iii) that has been granted pursuant to the terms of the Related
Documents. None of the tangible chattel paper that constitutes or evidences the
Receivables has any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than the Trustee. The
Transferor is not aware of any judgment, ERISA or tax lien filings against it.
6. Survival of Perfection Representations. Notwithstanding any other
provision of this Agreement or any other Related Document, the Perfection
Representations contained in this Schedule 3 shall be continuing, and remain in
full force and effect.
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7. No Waiver. The parties to this Agreement: (i) shall not, without
satisfying the Rating Agency Condition, waive any of the representations and
warranties in this Schedule 3 (the "Perfection Representations"); (ii) shall
provide the Rating Agencies with prompt written notice of any breach of the
Perfection Representations, and shall not, without satisfying the Rating Agency
Condition (as determined after any adjustment or withdrawal of the ratings
following notice of such breach) waive a breach of any of the Perfection
Representations.
8. Servicer to Maintain Perfection and Priority. The Servicer covenants
that, in order to evidence the interests of the Transferor and the Trustee under
this Agreement, the Servicer shall take such action, or execute and deliver such
instruments (other than effecting a Filing (as defined below), unless such
Filing is effected in accordance with this paragraph) as may be necessary or
advisable (including such actions as are requested by the Trustee) to maintain
and perfect, as a first priority interest, the Trustee's security interest in
the Transferor's rights in the Receivables Property. The Servicer shall, from
time to time and within the time limits established by law, prepare and present
to the Trustee for the Trustee to authorize (based in reliance on the Opinion of
Counsel hereinafter provided for in this paragraph) the Servicer to file, all
financing statements, amendments, continuations, financing statements in lieu of
a continuation statement, terminations, partial terminations, releases or
partial releases, or any other filings necessary or advisable to continue,
maintain and perfect the Trustee's security interest in the Transferor's rights
in the Receivables Property as a first-priority interest (each a "Filing"). The
Servicer shall present each such Filing to the Trustee together with (x) an
Opinion of Counsel to the effect that such Filing is (i) consistent with grant
of the security interest to the Trustee pursuant to the Section 2.1 of this
Agreement, (ii) satisfies all requirements and conditions to such Filing in this
Agreement and (iii) satisfies the requirements for a Filing of such type under
the UCC in the applicable jurisdiction (or if the UCC does not apply, the
applicable statute governing the perfection of security interests), and (y) a
form of authorization for the Trustee's signature. Upon receipt of such Opinion
of Counsel and form of authorization, the Trustee shall promptly authorize in
writing the Servicer to, and the Servicer shall, effect such Filing under the
UCC. Notwithstanding anything else in this Agreement to the contrary, the
Servicer shall not have any authority to effect a Filing without obtaining
written authorization from the Trustee in accordance with this paragraph (8).
Any reference in this Schedule to the Rating Agency Condition shall be
construed as if Standard & Poor's were the only Rating Agency.
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