Exhibit 4.4
CDF FINANCING, L.L.C.
as Transferor,
GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION,
as Servicer,
and
WILMINGTON TRUST COMPANY,
as Trustee
------------------
SERIES 2003-2 SUPPLEMENT
Dated as of April 1, 2003
to
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2000
------------------
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST
SERIES 2003-2
ARTICLE I
Creation of the Series 2003-2 Certificates
SECTION 1.1 Designation.................................................................. 1
ARTICLE II
Definitions
SECTION 2.1 Definitions.................................................................. 1
ARTICLE III
Servicing Fee
SECTION 3.1 Servicing Compensation....................................................... 12
SECTION 3.2 Servicer Advances............................................................ 13
ARTICLE IV
Rights of Series 2003-2 Certificateholders and
Allocation and Application of Collections
SECTION 4.1 Allocations; Payments to Transferor.......................................... 13
SECTION 4.2 Monthly Interest; Determination of Certificate Rate.......................... 13
SECTION 4.3 Determination of Monthly Principal........................................... 15
SECTION 4.4 Establishment of Reserve Fund and Funding Accounts........................... 15
SECTION 4.5 Deficiency Amount............................................................ 17
SECTION 4.6 Application of Investor Non-Principal Collections, Investment Proceeds,
Servicer Advances and Available Investor Principal Collections............... 18
SECTION 4.7 Payments to Series 2003-2 Certificateholders................................. 20
SECTION 4.8 Application of Reserve Fund.................................................. 22
SECTION 4.9 Investor Charge-Offs......................................................... 22
SECTION 4.10 Transferor Amount............................................................ 22
SECTION 4.11 Excess Principal Collections................................................. 23
SECTION 4.12 Excess Funding Account....................................................... 23
ARTICLE V
Payment and Reports to Series 2003-2 Certificateholders
SECTION 5.1 Payments..................................................................... 24
SECTION 5.2 Reports and Statements to Series 2003-2 Certificateholders................... 25
ARTICLE VI
Early Amortization Events
SECTION 6.1 Additional Early Amortization Events......................................... 25
ARTICLE VII
Optional Repurchase
-i-
SECTION 7.1 Optional Repurchase.......................................................... 26
ARTICLE VIII
Final Payments
SECTION 8.1 Sale of Certificateholders' Interest Pursuant to Section 2.3 of the
Agreement; Payments Pursuant to Section 7.1 of this Series Supplement
or Section 2.3 or 12.2(c) of the Agreement................................... 27
SECTION 8.2 Payment of Proceeds of Sale, Disposition or Liquidation of the Receivables
Pursuant to Section 9.2 of the Agreement..................................... 28
ARTICLE IX
Miscellaneous Provisions
SECTION 9.1 Securities Law Filings....................................................... 29
SECTION 9.2 Ratification of Agreement.................................................... 29
SECTION 9.3 Counterparts................................................................. 29
SECTION 9.4 Governing Law................................................................ 29
SECTION 9.5 Limitation of Class B and Class C Certificates............................... 29
SECTION 9.6 The Trustee; Paying Agent; Transfer Agent and Registrar...................... 33
SECTION 9.7 Instructions in Writing...................................................... 33
SECTION 9.8 Initial Funding of Reserve Fund.............................................. 33
SECTION 9.9 Severability; Certificate Rate Limitation.................................... 34
SECTION 9.10 Headings..................................................................... 34
-ii-
SERIES 2003-2 SUPPLEMENT dated as of April 1, 2003 (this "Series
Supplement"), among CDF FINANCING, L.L.C., a Delaware limited liability company,
as Transferor, GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION, a Nevada
corporation, as Servicer, and WILMINGTON TRUST COMPANY, as successor to The
Chase Manhattan Bank, as Trustee.
Pursuant to Section 6.3 of the Amended and Restated Pooling and
Servicing Agreement, dated as of April 1, 2000 (as amended, the "Agreement"),
among the Transferor, the Servicer and the Trustee, the Transferor may from time
to time direct the Trustee to issue, on behalf of the Trust, one or more new
Series of Investor Certificates.
Pursuant to this Series Supplement, the Transferor and the Trustee
shall create a new Series of Investor Certificates and specify the Principal
Terms thereof.
ARTICLE I
Creation of the Series 2003-2 Certificates
SECTION 1.1 Designation. (a) There is hereby created a Series of
Investor Certificates to be issued pursuant to the Agreement and this Series
Supplement to be known as the "Floating Rate Asset Backed Certificates, Series
2003-2" or the "Series 2003-2 Certificates", which shall consist of three
Classes to be known, respectively, as the "Floating Rate Asset Backed
Certificates, Series 2003-2, Class A," "Floating Rate Asset Backed Certificates,
Series 2003-2, Class B" and "Floating Rate Asset Backed Certificates, Series
2003-2, Class C."
(b) In the event that any term or provision contained herein shall
conflict with or be inconsistent with any term or provision contained in the
Agreement, the terms and provisions of this Series Supplement shall govern.
ARTICLE II
Definitions
SECTION 2.1 Definitions. (a) Whenever used in this Series
Supplement the following words and phrases shall have the following meanings:
"Accumulation Period" shall mean, unless an Early Amortization Event
shall have occurred prior thereto (other than an Early Amortization Event which
has resulted in an Early Amortization Period which has ended as described in
clause (c) of the definition of Early Amortization Period in the Agreement), the
period commencing on the Accumulation Period Commencement Date and ending upon
the earlier of (a) the commencement of an Early Amortization Period and (b) the
Expected Final Payment Date.
"Accumulation Period Commencement Date" shall mean the first day of the
calendar month which is the fifth calendar month prior to the calendar month in
which the Expected Final Payment Date occurs; provided, however, that upon
written notice to the Trustee, the Servicer may elect to postpone the
Accumulation Period Commencement Date so that the number of months included in
the Accumulation Period shall equal or exceed the Accumulation Period
Length; provided further, however, that such election shall only be permitted if
the Accumulation Period Length is less than five months; provided further,
however, that the Accumulation Period Commencement Date shall not be postponed
beyond the first day of the calendar month which is the second calendar month
prior to the calendar month in which the Expected Final Payment Date occurs.
"Accumulation Period Length" shall mean, as determined by the Servicer
on each Determination Date, beginning with the Determination Date occurring in
the calendar month which is the sixth calendar month prior to the calendar month
in which the Expected Final Payment Date occurs, the number of calendar months
that the Servicer expects to be required so that sufficient funds are on deposit
in the Principal Funding Account no later than the Expected Final Payment Date
to pay the outstanding principal balances of the Certificates, based on (a) the
expected monthly collections of Principal Receivables expected to be
distributable to the Series 2003-2 Certificateholders assuming a principal
payment rate no greater than the lowest Monthly Payment Rate on the Receivables
for the preceding three months, so that, for example, if the lowest Monthly
Payment Rate for that preceding three month period is 50% or more, the number of
calendar months required would be two; if the lowest Monthly Payment Rate for
that preceding three month period is between 33.33% and 50%, the number of
calendar months required would be three; if the lowest Monthly Payment Rate for
that preceding three month period is between 25% and 33.33%, the number of
calendar months required would be four; and if the lowest Monthly Payment Rate
for that preceding three month period is between 20% and 25%, the number of
calendar months required would be five; and (b) the amount of principal expected
to be distributable to Investor Certificateholders of other Series which are
expected to be in their accumulation or amortization periods during the
Accumulation Period; provided that in the event that no other Series are
expected to be in their accumulation or amortization periods during the
Accumulation Period, then the Servicer shall have the right to designate a
shorter Accumulation Period Length than would be otherwise required by this
definition of Accumulation Period Length.
"Additional Early Amortization Event" shall have the meaning specified
in Section 6.1.
"Additional Interest" shall mean the sum of the Class A Additional
Interest, the Class B Additional Interest and the Class C Additional Interest.
"Adjustment Date" shall mean, with respect to any Interest Period, the
second London Business Day preceding such Interest Period; provided that with
respect to the first Interest Period, the Adjustment Date shall be April 11,
2003.
"Allocable Miscellaneous Payments" shall mean, with respect to any
Payment Date, the product of (a) a fraction, the numerator of which is the
Series 2003-2 Allocation Percentage for the related Collection Period and the
denominator of which is the sum of the series allocation percentages for all
Series not in their revolving periods, and (b) Miscellaneous Payments with
respect to the related Collection Period.
"Available Investor Principal Collections" shall mean, with respect to
any Payment Date, the sum of (a) an amount equal to Investor Principal
Collections for such Payment Date,
2
(b) Allocable Miscellaneous Payments with respect to such Payment Date, and (c)
on the Termination Date, any funds in the Reserve Fund after giving effect to
Section 4.8.
"Certificate Rate" means any of the Class A Certificate Rate, the Class
B Certificate Rate or the Class C Certificate Rate.
"Certificateholders" shall mean, collectively, the Class A
Certificateholders, the Class B Certificateholders and the Class C
Certificateholders.
"Certificateholders' Monthly Servicing Fee" shall have the meaning
specified in Section 3.1.
"Certificates" shall mean, collectively, the Class A Certificates, the
Class B Certificates and the Class C Certificates.
"Class A Additional Interest" shall have the meaning specified in
Section 4.2(a).
"Class A Certificate Rate" shall mean, for an Interest Period and the
Payment Date immediately following such Interest Period, a rate per annum equal
to LIBOR plus ten basis points (0.10%) per annum.
"Class A Certificateholders" shall mean the Holders of Class A
Certificates.
"Class A Certificates" shall mean any one of the "Floating Rate Asset
Backed Certificates, Series 2003-2, Class A" executed by the Transferor and
authenticated by the Trustee, substantially in the form of Exhibit A.
"Class A Initial Invested Amount" shall mean, for any date, the initial
principal amount of the Class A Certificates, which is set forth in Schedule 2,
plus (x) the product of (i) the Class A Percentage multiplied by (ii) the amount
of any withdrawals from the Excess Funding Account in connection with an
increase in Pool Balance since the Closing Date, minus (y) the product of (i)
the Class A Percentage multiplied by (ii) the amount of any additions to the
Excess Funding Account in connection with a reduction in the Pool Balance since
the Closing Date.
"Class A Interest Shortfall" shall have the meaning specified in
Section 4.2(a).
"Class A Invested Amount" shall mean, for any date, an amount equal to
the result of (i) the Class A Initial Invested Amount, minus (ii) the aggregate
amount of principal payments made to Class A Certificateholders prior to such
date, minus (iii) the aggregate amount of all unreimbursed Class A Investor
Charge-Offs; provided that the Class A Invested Amount shall not be less than
zero.
"Class A Investor Charge-Off" shall have the meaning specified in
Section 4.9.
"Class A Monthly Interest" on any Payment Date shall be an amount equal
to the product of (i) the Class A Certificate Rate, (ii) a fraction the
numerator of which is the actual number of days in the related Interest Period
and the denominator of which is 360, and (iii) (A) the outstanding principal
balance of the Class A Certificates as of the close of business on the
3
preceding Payment Date (after giving effect to all repayments of principal made
to Class A Certificateholders on such preceding Payment Date, if any) or (B) in
the case of the first Payment Date with respect to Series 2003-2, the initial
principal amount of the Class A Certificates as set forth in Schedule 2.
"Class A Percentage" shall mean the percentage equivalent of a
fraction, the numerator of which is the outstanding principal balance of the
Class A Certificates and the denominator of which is the outstanding principal
balance of all Certificates.
"Class A Pool Factor" shall mean, with respect to any Determination
Date, a number carried out to eleven decimals representing the ratio of the
outstanding principal balance of the Class A Certificates as of such
Determination Date (determined after taking into account any reduction in the
outstanding principal balance of the Class A Certificates which shall occur on
the following Payment Date) to the initial principal balance of the Class A
Certificates.
"Class B Additional Interest" shall have the meaning specified in
Section 4.2(a).
"Class B Certificate Rate" shall mean, for an Interest Period and the
Payment Date immediately following such Interest Period, a rate per annum equal
to LIBOR plus forty seven basis points (0.47%) per annum.
"Class B Certificateholders" shall mean the Holders of Class B
Certificates.
"Class B Certificates" shall mean any one of the "Floating Rate Asset
Backed Certificates, Series 2003-2, Class B" executed by the Transferor and
authenticated by the Trustee, substantially in the form of Exhibit A.
"Class B Initial Invested Amount" shall mean, for any date, the initial
principal amount of the Class B Certificates, which is set forth in Schedule 2,
plus (x) the product of (i) the Class B Percentage multiplied by (ii) the amount
of any withdrawals from the Excess Funding Account in connection with an
increase in Pool Balance since the Closing Date, minus (y) the product of (i)
the Class B Percentage multiplied by (ii) the amount of any additions to the
Excess Funding Account in connection with a reduction in the Pool Balance since
the Closing Date.
"Class B Interest Shortfall" shall have the meaning specified in
Section 4.2(a).
"Class B Invested Amount" shall mean, for any date, an amount equal to
the result of (i) the Class B Initial Invested Amount, minus (ii) the aggregate
amount of principal payments made to Class B Certificateholders prior to such
date, minus (iii) the aggregate amount of all unreimbursed Class B Investor
Charge-Offs; provided that the Class B Invested Amount shall not be less than
zero.
"Class B Investor Charge-Off" shall have the meaning specified in
Section 4.9.
"Class B Monthly Interest" on any Payment Date shall be an amount equal
to the product of (i) the Class B Certificate Rate, (ii) a fraction the
numerator of which is the actual number of days in the related Interest Period
and the denominator of which is 360, and (iii) (A) the outstanding principal
balance of the Class B Certificates as of the close of business on the
4
preceding Payment Date (after giving effect to all repayments of principal made
to Class B Certificateholders on such preceding Payment Date, if any) or (B) in
the case of the first Payment Date with respect to Series 2003-2, the initial
principal amount of the Class B Certificates as set forth in Schedule 2.
"Class B Percentage" shall mean the percentage equivalent of a
fraction, the numerator of which is the outstanding principal balance of the
Class B Certificates and the denominator of which is the outstanding principal
balance of all Certificates.
"Class B Pool Factor" shall mean, with respect to any Determination
Date, a number carried out to eleven decimals representing the ratio of the
outstanding principal balance of the Class B Certificates as of such
Determination Date (determined after taking into account any reduction in the
outstanding principal balance of the Class B Certificates which shall occur on
the following Payment Date) to the initial principal balance of the Class B
Certificates.
"Class C Additional Interest" shall have the meaning specified in
Section 4.2(a).
"Class C Certificate Rate" shall mean, for an Interest Period and the
Payment Date immediately following such Interest Period, a rate per annum equal
to LIBOR plus one hundred eighty five basis points (1.85%) per annum.
"Class C Certificateholders" shall mean the Holders of Class C
Certificates.
"Class C Certificates" shall mean any one of the "Floating Rate Asset
Backed Certificates, Series 2003-2, Class C" executed by the Transferor and
authenticated by the Trustee, substantially in the form of Exhibit A.
"Class C Initial Invested Amount" shall mean, for any date, the initial
principal amount of the Class C Certificates, which is set forth in Schedule 2,
plus (x) the product of (i) the Class C Percentage multiplied by (ii) the amount
of any withdrawals from the Excess Funding Account in connection with an
increase in Pool Balance since the Closing Date, minus (y) the product of (i)
the Class C Percentage multiplied by (ii) the amount of any additions to the
Excess Funding Account in connection with a reduction in the Pool Balance since
the Closing Date.
"Class C Interest Shortfall" shall have the meaning specified in
Section 4.2(a).
"Class C Invested Amount" shall mean, for any date, an amount equal to
the result of (i) the Class C Initial Invested Amount, minus (ii) the aggregate
amount of principal payments made to Class C Certificateholders prior to such
date, minus (iii) the aggregate amount of all unreimbursed Class C Investor
Charge-Offs; provided that the Class C Invested Amount shall not be less than
zero.
"Class C Investor Charge-Off" shall have the meaning specified in
Section 4.9.
"Class C Monthly Interest" on any Payment Date shall be an amount equal
to the product of (i) the Class C Certificate Rate, (ii) a fraction the
numerator of which is the actual number of days in the related Interest Period
and the denominator of which is 360, and (iii) (A) the outstanding principal
balance of the Class C Certificates as of the close of business on the
5
preceding Payment Date (after giving effect to all repayments of principal made
to Class C Certificateholders on such preceding Payment Date, if any) or (B) in
the case of the first Payment Date with respect to Series 2003-2, the initial
principal amount of the Class C Certificates as set forth in Schedule 2.
"Class C Percentage" shall mean the percentage equivalent of a
fraction, the numerator of which is the outstanding principal balance of the
Class C Certificates and the denominator of which is the outstanding principal
balance of all Certificates.
"Class C Pool Factor" shall mean, with respect to any Determination
Date, a number carried out to eleven decimals representing the ratio of the
outstanding principal balance of the Class C Certificates as of such
Determination Date (determined after taking into account any reduction in the
outstanding principal balance of the Class C Certificates which shall occur on
the following Payment Date) to the initial principal balance of the Class C
Certificates.
"Closing Date" shall mean April 15, 2003.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Controlled Accumulation Amount" shall mean the quotient obtained by
dividing the Invested Amount as of the Determination Date on which the
Accumulation Period Length is determined (after giving effect to any changes
therein on such date) by the number of months comprising the Accumulation Period
Length.
"Controlled Deposit Amount" shall mean, for any Payment Date with
respect to the Accumulation Period, the excess, if any, of (i) the product of
the Controlled Accumulation Amount and the number of Payment Dates from and
including the first Payment Date during the Accumulation Period through and
including such Payment Date over (ii) the sum of amounts on deposit in the
Excess Funding Account and the Principal Funding Account, in each case before
giving effect to any withdrawals from or deposits to such accounts on such
Payment Date.
"Deficiency Amount" shall have the meaning specified in Section 4.5.
"Early Amortization Event" shall mean any Early Amortization Event
specified in Section 9.1 of the Agreement, together with any Additional Early
Amortization Event specified in Section 6.1 of this Series Supplement.
"Early Amortization Period" shall mean an Early Amortization Period (as
defined in the Agreement) with respect to Series 2003-2.
"Excess Funding Account" shall have the meaning specified in Section
4.4(d).
"Excess Principal Collections" shall mean the amounts equal to the
balances referred to as such in Sections 4.6(b)(ii) and 4.6(c)(ii).
"Expected Final Payment Date" shall mean the April 2006 Payment Date.
6
"Floating Allocation Percentage" shall mean, with respect to any
Collection Period, the percentage equivalent (which percentage shall never
exceed 100%) of a fraction, the numerator of which is the Invested Amount as of
the last day of the immediately preceding Collection Period and the denominator
of which is the Unconcentrated Pool Balance as of such last day; provided,
however, for the Collection Period in which the Closing Date occurs, the
Floating Allocation Percentage shall mean the percentage equivalent of a
fraction, the numerator of which is the sum of the initial principal balances of
the Series 2003-2 Certificates and the denominator of which is the
Unconcentrated Pool Balance on the last day of the Collection Period immediately
preceding the Closing Date.
"Initial Invested Amount" shall equal the sum of the Class A Initial
Invested Amount, the Class B Initial Invested Amount and the Class C Initial
Invested Amount.
"Initial Servicer" shall mean CDF.
"Interest Funding Account" shall have the meaning specified in Section
4.4(b).
"Interest Period" shall mean, with respect to any Payment Date, the
period from and including the Payment Date immediately preceding such Payment
Date (or, in the case of the first Payment Date, from and including the Closing
Date) to but excluding such Payment Date.
"Invested Amount" shall mean, for any date, the sum of the Class A
Invested Amount, the Class B Invested Amount and the Class C Invested Amount.
"Investment Proceeds" shall mean, with respect to any Payment Date, all
interest and other investment earnings (net of losses and investment expenses)
on the related Determination Date on funds on deposit in the Series 2003-2
Accounts, together with an amount equal to the Series 2003-2 Allocation
Percentage of the interest and other investment earnings (net of losses and
investment expenses) on funds held in the Collection Account credited as of the
related Determination Date to the Collection Account pursuant to Section 4.2 of
the Agreement.
"Investor Default Amount" shall mean, with respect to any Payment Date,
an amount equal to the product of (a) the Defaulted Amount for the related
Collection Period, after giving effect to any allocation of any portion of that
Defaulted Amount to the Dealer Over concentration Series, and (b) the Floating
Allocation Percentage for the related Collection Period.
"Investor Non-Principal Collections" shall mean, with respect to any
Payment Date, an amount equal to the product of (i) the Floating Allocation
Percentage for the related Collection Period and (ii) Non-Principal Collections
deposited in the Collection Account for the related Collection Period after
giving effect to any allocations to the Dealer Overconcentration Series for such
Collection Period.
"Investor Principal Collections" shall mean, with respect to any
Payment Date, the sum of (a) the product of (i) the Floating Allocation
Percentage, with respect to the Revolving Period, or the Principal Allocation
Percentage, with respect to the Accumulation Period or an Early Amortization
Period, for the related Collection Period (or the portion of the Collection
Period which occurs as part of the first Collection Period during an Early
Amortization Period), and
7
(ii) Principal Collections for the related Collection Period after giving effect
to any allocations to the Dealer Overconcentration Series for such Collection
Period and (b) the amount, if any, of Non-Principal Collections to be allocated
with respect to the Investor Default Amount or unreimbursed Class A, Class B or
Class C Investor Charge-Offs pursuant to Section 4.6(a)(vi) or 4.6(a)(vii);
provided that in the case of clause (a), if for any Payment Date the sum of the
Floating Allocation Percentage (if the Revolving Period is in effect), the
Principal Allocation Percentage (if the Early Amortization Period or the
Accumulation Period is in effect), the floating allocation percentages for all
other outstanding Series of Investor Certificates in their revolving periods and
the principal allocation percentages for all other outstanding Series of
Investor Certificates in their early amortization or accumulation periods
exceeds 100%, then, after giving effect to any allocations to the Dealer
Overconcentration Series, Principal Collections shall be allocated among all
Series (including Series 2003-2) pari passu and pro rata on the basis of such
floating allocation percentages and principal allocation percentages.
"LIBOR" shall mean, with respect to any Interest Period, the offered
rates for deposits in United States dollars having a maturity of one month (the
"Index Maturity") commencing on the related Adjustment Date which appears on the
Telerate Page 3750 as reported by Bloomberg Financial Markets Commodities News
(or other such page as may replace Telerate Page 3750 for the purpose of
displaying comparable rates) as of approximately 11:00 A.M., London time, on the
date of calculation as determined by the Trustee. If at least two such offered
rates appear on the Telerate Page 3750, LIBOR shall be the arithmetic mean
(rounded upwards, if necessary, to the nearest seven decimals) of such offered
rates. If fewer than two such offered rates appear, LIBOR with respect to such
Interest Period shall be determined at approximately 11:00 A.M., London time, on
such Adjustment Date on the basis of the rate at which deposits in United States
dollars having the Index Maturity are offered to prime banks in the London
interbank market by four major banks in the London interbank market selected by
the Trustee and in a principal amount equal to an amount of not less than U.S.
$1,000,000 and that is representative for a single transaction in such market at
such time. The Trustee shall request the principal London office of each of such
banks to provide a quotation of its rate. If at least two such banks quote rates
to the Trustee, LIBOR shall be the arithmetic mean (rounded upwards, if
necessary, as aforesaid) of such quotations. If fewer than two of such banks
quote rates to the Trustee, LIBOR with respect to such Interest Period shall be
the arithmetic mean (rounded upwards, if necessary, as aforesaid) of the rates
quoted at approximately 11:00 A.M., New York City time, on such Adjustment Date
by three major banks in New York, New York selected by the Trustee for loans in
United States dollars to leading European banks having the Index Maturity and in
a principal amount equal to an amount of not less than U.S. $1,000,000 and that
is representative for a single transaction in such market at such time;
provided, however, that if the banks selected as aforesaid are not providing
quotations as mentioned in this sentence, LIBOR in effect for the applicable
period shall be LIBOR in effect for the previous period.
"London Business Day" shall mean any business day on which dealings in
deposits in United States dollars are transacted in the London interbank market.
"Monthly Interest" shall have the meaning specified in Section 4.2.
"Monthly Principal" shall have the meaning specified in Section 4.3.
8
"Monthly Servicing Fee" shall have the meaning specified in Section
3.1.
"Payment Date" shall mean the fifteenth day of each month or, if such
day is not a Business Day, the next succeeding Business Day.
"Payment Date Statement" shall have the meaning specified in Section
5.2(a).
"Principal Allocation Percentage" shall mean, with respect to any
Collection Period, the percentage equivalent (which percentage shall never
exceed 100%) of a fraction, the numerator of which is the Invested Amount as of
the last day of the Revolving Period and the denominator of which is the
Unconcentrated Pool Balance as of the last day of the immediately preceding
Collection Period.
"Principal Funding Account" shall have the meaning specified in Section
4.4(c).
"Private Holder" shall mean each holder of a right to receive interest
or principal in respect of any direct or indirect interest in the Trust,
including any financial instrument or contract the value of which is determined
in whole or part by reference to the Trust (including the Trust's assets, income
of the Trust or payments made by the Trust), excluding any interest in the Trust
represented by any Series or Class of Certificates or any other interests as to
which the Trustee has received an Opinion of Counsel to the effect that such
Series, Class or other interest shall be treated as debt or otherwise not as an
equity interest in either the Trust or the Receivables for federal income tax
purposes (unless such interest is convertible or exchangeable into an interest
in the Trust or the Trust's income or such interest provides for payment of
equivalent value). Notwithstanding the immediately preceding sentence, "Private
Holder" shall also include any other Person that the Transferor determines is a
"partner" within the meaning of Section 1.7704-1(h)(1)(ii) of the U.S. Treasury
Regulations (including by reason of Section 1.7704-1(h)(3)) or any successor
provision of law. Any Person holding more than one interest in the Trust, each
of which separately would cause such Person to be a Private Holder, shall be
treated as a single Private Holder. Each holder of an interest in a Private
Holder which is a partnership, S corporation or a grantor trust under the
Internal Revenue Code shall be treated as a Private Holder unless excepted with
the consent of the Transferor (which consent shall be based on an Opinion of
Counsel generally to the effect that the action taken pursuant to the consent
shall not cause the Trust to become a publicly traded partnership treated as a
corporation). Notwithstanding anything to the contrary herein, each Class C
Certificateholder shall be considered to be a Private Holder.
"Reassignment Amount" shall mean, with respect to any Payment Date,
after giving effect to any deposits and payments otherwise to be made on such
Payment Date, the sum of (i) the Invested Amount on such Payment Date and (ii)
the amounts distributable pursuant to Section 4.7(a)(i).
"Required Participation Percentage" shall mean, with respect to Series
2003-2, 105%; provided, however, that the Transferor may, upon 10 days' prior
notice to the Trustee, each Rating Agency and any Enhancement Provider, reduce
the Required Participation Percentage to a percentage which shall not be less
than 100%; provided, however, that the Rating Agency Condition is satisfied.
9
"Reserve Fund" shall have the meaning specified in Section 4.4(a).
"Reserve Fund Deposit Amount" shall mean, with respect to any Payment
Date, the amount, if any, by which (i) the Reserve Fund Required Amount for such
Payment Date exceeds (ii) the amount of funds in the Reserve Fund after giving
effect to any withdrawals therefrom on such Payment Date.
"Reserve Fund Required Amount" shall mean, with respect to any Payment
Date, an amount equal to the product of (a) three and one-half percent (3.5%)
and (b) the aggregate outstanding principal balance of the Series 2003-2
Certificates as of such Payment Date (after giving effect to any changes therein
on such Payment Date).
"Revolving Period" shall mean the period beginning at the opening of
business on the Closing Date and ending on the earlier of (a) the close of
business on the day immediately preceding the Accumulation Period Commencement
Date, and (b) the close of business on the day an Early Amortization Period
commences; provided, however, that, if any Early Amortization Period ends as
described in clause (c) of the definition of Early Amortization Period in the
Agreement, the Revolving Period shall recommence as of the close of business on
the day such Early Amortization Period ends.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series 2003-2" or the "Series 2003-2 Certificates" shall mean the
Series of Investor Certificates, the terms of which are specified in this Series
Supplement.
"Series 2003-2 Accounts" shall have the meaning specified in Section
4.4(e).
"Series 2003-2 Allocation Percentage" for a Collection Period shall
mean the percentage equivalent of a fraction, the numerator of which is the
Invested Amount on the last Business Day of the Collection Period immediately
preceding such Collection Period and the denominator of which is the Trust
Invested Amount on such last Business Day. The Series 2003-2 Allocation
Percentage is the "Series Allocation Percentage" for Series 2003-2 for purposes
of the Agreement.
"Series 2003-2 Certificateholders" shall mean, collectively, the Class
A Certificateholders, the Class B Certificateholders and the Class C
Certificateholders.
"Series 2003-2 Certificateholders' Interest" shall mean that portion of
the Certificateholders' Interest evidenced by the Series 2003-2 Certificates.
"Series 2003-2 Certificates" shall mean, collectively, the Class A
Certificates, the Class B Certificates and the Class C Certificates.
"Series 2003-2 Excess Principal Collection" shall mean that portion of
Excess Principal Collections allocated to Series 2003-2 pursuant to Section
4.11.
"Series 2003-2 Principal Shortfall" with respect to any Payment Date,
shall equal the excess of (i) (x) for any Payment Date with respect to the
Accumulation Period, the Controlled
10
Deposit Amount or (y) for any Payment Date with respect to an Early Amortization
Period, the Invested Amount, over (ii) Available Investor Principal Collections
for such Payment Date (excluding any portion thereof attributable to Excess
Principal Collections).
"Servicer Advance" shall have the meaning specified in Section 3.2.
"Servicing Fee Rate" shall mean, with respect to Series 2003-2, two
percent (2%).
"Special Payment Date" shall mean each Payment Date with respect to an
Early Amortization Period (other than an Early Amortization Period that has
ended as described in clause (c) of the definition of Early Amortization Period
in the Agreement).
"Telerate Page 3750" shall mean the display designated as page 3750 on
Telerate (or such other page as may replace such page on that service for the
purpose of displaying London interbank offered rates of major banks).
"Termination Date" for Series 2003-2 shall mean the April 2008 Payment
Date.
"Termination Proceeds" shall mean any proceeds arising out of a sale of
Receivables (or interests therein) pursuant to Section 12.2(c) of the Agreement
with respect to Series 2003-2.
"Transferor" shall mean CDF Financing, L.L.C. and its successors.
"Transferor Amount" shall mean, with respect to any Payment Date, the
amount, if any, specified pursuant to Section 4.6(a)(ix) with respect to such
Payment Date.
"Transferor's Interest" shall mean the interest in the Trust not
allocated to the Certificateholders' Interest.
(b) Notwithstanding anything to the contrary in this Series
Supplement or the Agreement, the term "Rating Agency" shall mean, whenever used
in this Series Supplement or the Agreement with respect to Series 2003-2,
Standard & Poor's, Xxxxx'x and Fitch. As used in this Series Supplement and in
the Agreement with respect to Series 2003-2, "highest investment category" shall
mean (i) in the case of Standard & Poor's, AAA and A-1+, as applicable, (ii) in
the case of Xxxxx'x, Aaa and P-1, as applicable, and (iii) in the case of Fitch,
AAA and F-1+, as applicable.
(c) All capitalized terms used herein and not otherwise defined
herein have the meanings ascribed to them in the Agreement. The definitions in
Section 2.1 are applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and neuter genders of such
terms.
(d) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Series Supplement shall refer to this Series
Supplement as a whole and not to any particular provision of this Series
Supplement; references to any Article, Section or Exhibit are references to
Articles, Sections and Exhibits in or to this Series Supplement unless otherwise
specified; and the term "including" means "including without limitation".
11
(e) All references to any agreement (including the Agreement)
shall be understood to be references to such agreement as it may be amended,
amended and restated or otherwise modified from time to time.
ARTICLE III
Servicing Fee
SECTION 3.1 Servicing Compensation. A monthly servicing fee for
Series 2003-2 (the "Monthly Servicing Fee") shall be payable to the Servicer, in
arrears, on each Payment Date in respect of any Collection Period (or portion
thereof) occurring prior to the first Payment Date on which the Invested Amount
is zero, in an amount equal to one-twelfth of the product of (a) the Servicing
Fee Rate and (b) the product of (i) the Series 2003-2 Allocation Percentage and
(ii) the Pool Balance as of the last day of the second Collection Period
preceding such Payment Date. The share of the Monthly Servicing Fee allocable to
the Series 2003-2 Certificateholders with respect to any Payment Date (the
"Certificateholders' Monthly Servicing Fee") shall be equal to one-twelfth of
the product of (a) the Servicing Fee Rate and (b) the Invested Amount as of the
last day of the second Collection Period preceding such Payment Date and shall
be payable in the manner set forth in Section 4.6 and Section 4.10; provided,
however, that with respect to the first Payment Date for Series 2003-2, clause
(b) of this sentence shall be deemed to refer to the Invested Amount on the
Closing Date. Notwithstanding the foregoing, with respect to the first Payment
Date for Series 2003-2, each reference in the preceding sentences of this
Section to one-twelfth shall be deemed to be replaced by a fraction, the
numerator of which is the number of days from but excluding the Closing Date to
and including the last day of the month in which the Closing Date occurs and the
denominator of which is 360.
The remainder of the Monthly Servicing Fee shall be paid by the
Transferor and in no event shall the Trust, the Trustee or the Series 2003-2
Certificateholders be liable for the share of the Monthly Servicing Fee to be
paid by the Transferor; and the remainder of the Servicing Fee shall be paid by
the Transferor and the Investor Certificateholders of other Series, the Trustee
and the Series 2003-2 Certificateholders shall in no event be liable for the
share of the Servicing Fee to be paid by the Transferor or the Investor
Certificateholders of other Series. The Certificateholders' Monthly Servicing
Fee shall be payable to the Servicer solely to the extent amounts are available
for payment in accordance with the terms of this Series Supplement or to the
extent that amounts may be netted with respect thereto in accordance with the
terms of this Series Supplement or the Agreement.
The Servicer shall be permitted, in its sole discretion, to waive the
Monthly Servicing Fee for any Payment Date, in whole or in part, by notice to
the Trustee on or before the related Determination Date; provided that the
Servicer reasonably believes that sufficient Non-Principal Collections shall be
available on any future Payment Date to pay the waived portion of Monthly
Servicing Fee. The waived portion of such Monthly Servicing Fee shall be paid on
a future Payment Date to the extent amounts are available therefor pursuant to
Section 4.10(a) or to the extent that amounts may be netted with respect thereto
in accordance with the terms of this Series Supplement or the Agreement;
provided, however, that, to the extent any such waived Monthly Servicing Fee is
so paid, the related portion of the Monthly Servicing Fee to be paid by the
Transferor shall be paid by the Transferor to the Servicer.
12
If the Servicer is the Initial Servicer, and payment of any portion of
the Monthly Servicing Fee to the Initial Servicer on a Payment Date would
require a withdrawal from the Reserve Fund, then absent affirmative notice to
the Trustee by the Initial Servicer to the contrary, the Initial Servicer shall
be deemed to have waived payment of that portion on that Payment Date; provided
that a deemed waiver described in this sentence shall not occur on more than two
Payment Dates in any twelve month period and shall not occur on any two
consecutive Payment Dates.
SECTION 3.2 Servicer Advances. On or before each Payment Date,
the Servicer will deposit into the Collection Account as an advance (a "Servicer
Advance") an amount equal to the amount of interest due but unpaid on any
Receivable for the related Collection Period (but only to the extent that the
Servicer reasonably expects to recover that Servicer Advance from subsequent
payments on that delinquent Receivable). No Servicer Advance shall be made by
the Servicer for the principal portion of the Receivables or for Defaulted
Receivables. The Servicer shall reimburse itself for a Servicer Advance on the
subsequent Determination Date or Payment Date (and, if necessary, on other
Determination Dates or Payment Dates) out of funds collected on all Receivables
prior to the deposit of funds in the Collection Account.
ARTICLE IV
Rights of Series 2003-2 Certificateholders and
Allocation and Application of Collections
SECTION 4.1 Allocations; Payments to Transferor. (a) Subject to
Section 4.3(c) of the Agreement, and after giving effect to any allocations to
the Dealer Overconcentration Series, Collections of Non-Principal Receivables
and Principal Receivables, Miscellaneous Payments and Defaulted Amounts, as they
relate to Series 2003-2, shall be allocated and distributed as set forth in this
Article IV.
(b) The Servicer shall instruct the Trustee to withdraw from the
Collection Account and pay (and the Trustee shall so withdraw and pay) to the
Transferor on each Deposit Date any funds not required to be held therein (or
not required to be transferred from the Collection Account to a deposit account
for the benefit of Investor Certificateholders of any Series).
The withdrawals to be made from the Collection Account pursuant to this
Section 4.1(b) do not apply to deposits into the Collection Account that do not
represent Collections, including Miscellaneous Payments, payment of the purchase
price for the Certificateholders' Interest pursuant to Section 2.3 of the
Agreement, payment of the purchase price for the Series 2003-2
Certificateholders' Interest pursuant to Section 7.1 of this Series Supplement
and proceeds from the sale, disposition or liquidation of Receivables pursuant
to Section 9.2 or 12.2 of the Agreement.
SECTION 4.2 Monthly Interest; Determination of Certificate Rate.
(a) "Monthly Interest" with respect to the Series 2003-2 Certificates on any
Payment Date shall be an amount equal to the sum of the Class A Monthly
Interest, the Class B Monthly Interest and the Class C Monthly Interest.
Interest on the respective outstanding principal balance of each Class of
13
Certificates shall accrue at the Class A Certificate Rate, Class B Certificate
Rate or Class C Certificate Rate, as applicable, and shall be payable to
Certificateholders on each Payment Date.
On the Determination Date preceding each Payment Date, the Servicer
shall determine the excess, if any (the "Class A Interest Shortfall"), of (x)
the Class A Monthly Interest for the Interest Period applicable to such Payment
Date over (y) the amount which shall be available to be paid to the Class A
Certificateholders as Class A Monthly Interest from the Interest Funding Account
on such Payment Date pursuant to this Series Supplement. "Class A Additional
Interest" shall mean, as of any Payment Date, an amount equal to the product of
(i) the Class A Certificate Rate for the Interest Period then ended, (ii) a
fraction the numerator of which is the actual number of days in that Interest
Period and the denominator of which is 360, and (iii) the Class A Interest
Shortfall, if any, for the previous Payment Date. Notwithstanding anything to
the contrary herein, Class A Additional Interest shall be payable to the
Interest Funding Account or distributed to Class A Certificateholders only to
the extent permitted by applicable law.
On the Determination Date preceding each Payment Date, the Servicer
shall determine the excess, if any (the "Class B Interest Shortfall"), of (x)
the Class B Monthly Interest for the Interest Period applicable to such Payment
Date over (y) the amount which shall be available to be paid to the Class B
Certificateholders as Class B Monthly Interest from the Interest Funding Account
on such Payment Date pursuant to this Series Supplement. "Class B Additional
Interest" shall mean, as of any Payment Date, an amount equal to the product of
(i) the Class B Certificate Rate for the Interest Period then ended, (ii) a
fraction the numerator of which is the actual number of days in that Interest
Period and the denominator of which is 360, and (iii) the Class B Interest
Shortfall, if any, for the previous Payment Date. Notwithstanding anything to
the contrary herein, Class B Additional Interest shall be payable to the
Interest Funding Account or distributed to Class B Certificateholders only to
the extent permitted by applicable law.
On the Determination Date preceding each Payment Date, the Servicer
shall determine the excess, if any (the "Class C Interest Shortfall"), of (x)
the Class C Monthly Interest for the Interest Period applicable to such Payment
Date over (y) the amount which shall be available to be paid to the Class C
Certificateholders as Class C Monthly Interest from the Interest Funding Account
on such Payment Date pursuant to this Series Supplement. "Class C Additional
Interest" shall mean, as of any Payment Date, an amount equal to the product of
(i) the Class C Certificate Rate for the Interest Period then ended, (ii) a
fraction the numerator of which is the actual number of days that Interest
Period and the denominator of which is 360, and (iii) such Class C Interest
Shortfall, if any, for the previous Payment Date. Notwithstanding anything to
the contrary herein, Class C Additional Interest shall be payable to the
Interest Funding Account or distributed to Class C Certificateholders only to
the extent permitted by applicable law.
(b) The Trustee shall determine the Class A, Class B and Class C
Certificate Rates for each Interest Period on the Determination Date immediately
preceding each Interest Period. The Trustee shall notify the Servicer and the
Listing Agent on each Adjustment Date of the Trustee's determination of LIBOR.
The establishment of LIBOR on each Adjustment Date (or in the case of the date
specified in the proviso to the definition of Adjustment Date, promptly
following such date) by the Trustee and the Trustee's calculation of the Class
A, Class B and Class C Certificate Rates shall (in the absence of manifest
error) be final and binding.
14
SECTION 4.3 Determination of Monthly Principal. The amount of
monthly principal ("Monthly Principal") payable with respect to the Series
2003-2 Certificates on each Payment Date with respect to an Early Amortization
Period and the Accumulation Period shall be equal to the Available Investor
Principal Collections with respect to such Payment Date; provided, however, that
for each Payment Date with respect to the Accumulation Period, Monthly
Principal, at the option of the Transferor, may be increased to include amounts
otherwise payable or distributable to the Transferor (including without
limitation (i) amounts allocable to other Series but not required to be paid to
such other Series on such Payment Date and not required to be kept in a deposit
account for such other Series after such Payment Date and (ii) Collections
otherwise allocable to the Transferor's Interest)) or may be limited to the
Controlled Deposit Amount for such Payment Date; and provided further, however,
that Monthly Principal shall not exceed the outstanding principal balance of the
Series 2003-2 Certificates.
SECTION 4.4 Establishment of Reserve Fund and Funding Accounts.
(a) (i) The Trustee, for the benefit of the Series 2003-2 Certificateholders,
shall cause to be established and maintained in the name of the Trustee, on
behalf of the Trust, an Eligible Deposit Account (the "Reserve Fund") which
shall be identified as the "Reserve Fund for the Distribution Financial Services
Floorplan Master Trust, Series 2003-2" and shall bear a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Series 2003-2 Certificateholders.
(ii) At the direction of the Servicer, funds on deposit in
the Reserve Fund shall be invested by the Trustee in Eligible
Investments selected by the Servicer that shall mature so that such
funds shall be available at the close of business on or before the
Business Day next preceding the following Payment Date. All Eligible
Investments shall be held by the Trustee for the benefit of the Series
2003-2 Certificateholders. On each Payment Date, all interest and other
investment earnings (net of losses and investment expenses) on funds on
deposit in the Reserve Fund and received prior to such Payment Date
shall be applied as set forth in Section 4.6(a) of this Series
Supplement. Funds deposited in the Reserve Fund on the Business Day
preceding a Payment Date are not required to be invested overnight.
(b) (i) The Trustee, for the benefit of the Series 2003-2
Certificateholders, shall establish and maintain in the name of the Trustee, on
behalf of the Trust, an Eligible Deposit Account (the "Interest Funding
Account"), which shall be identified as the "Interest Funding Account for the
Distribution Financial Services Floorplan Master Trust, Series 2003-2" and shall
bear a designation clearly indicating that the funds deposited therein are held
for the benefit of the Series 2003-2 Certificateholders.
(ii) At the direction of the Servicer, funds on deposit in
the Interest Funding Account shall be invested by the Trustee in
Eligible Investments selected by the Servicer that shall mature so that
such funds shall be available at the close of business on or before the
Business Day next preceding the following Payment Date. All such
Eligible Investments shall be held by the Trustee for the benefit of
the Series 2003-2 Certificateholders. On each Payment Date, all
interest and other investment earnings (net of losses and investment
expenses) on funds on deposit in the Interest Funding Account and
received prior to such Payment Date shall be applied as set forth in
Section 4.6(a) of
15
this Series Supplement. Funds deposited in the Interest Funding Account
on the Business Day preceding a Payment Date are not required to be
invested overnight.
(c) (i) The Trustee, for the benefit of the Series 2003-2
Certificateholders, shall establish and maintain in the name of the Trustee, on
behalf of the Trust, an Eligible Deposit Account (the "Principal Funding
Account"), which shall be identified as the "Principal Funding Account for
Distribution Financial Services Floorplan Master Trust, Series 2003-2" and shall
bear a designation clearly indicating that the funds deposited therein are held
for the benefit of the Series 2003-2 Certificateholders.
(ii) At the direction of the Servicer, funds on deposit in
the Principal Funding Account shall be invested by the Trustee in
Eligible Investments selected by the Servicer that shall mature so that
such funds shall be available at the close of business on or before the
Business Day next preceding the following Payment Date. All such
Eligible Investments shall be held by the Trustee for the benefit of
the Series 2003-2 Certificateholders. On each Payment Date all interest
and other investment earnings (net of losses and investment expenses)
on funds on deposit in the Principal Funding Account and received prior
to such Payment Date shall be applied as set forth in Section 4.6(a) of
this Series Supplement. Funds deposited in the Principal Funding
Account on the Business Day preceding the Expected Final Payment Date
are not required to be invested overnight.
(d) (i) The Trustee, for the benefit of the Series 2003-2
Certificateholders, shall establish and maintain in the name of the Trustee, on
behalf of the Trust, an Eligible Deposit Account (the "Excess Funding Account"),
which shall be identified as the "Excess Funding Account for Distribution
Financial Services Floorplan Master Trust, Series 2003-2" and shall bear a
designation clearly indicating that the funds deposited therein are held for the
benefit of the Series 2003-2 Certificateholders.
(ii) At the direction of the Servicer, funds on deposit in
the Excess Funding Account shall be invested by the Trustee in Eligible
Investments selected by the Servicer. All such Eligible Investments
shall be held by the Trustee for the benefit of the Series 2003-2
Certificateholders. On each Payment Date, all interest and other
investment earnings (net of losses and investment expenses) on funds on
deposit in the Excess Funding Account and received prior to such
Payment Date shall be applied as set forth in Section 4.6(a) of this
Series Supplement. Funds deposited in the Excess Funding Account on any
Payment Date shall be invested in Eligible Investments that shall
mature so that such funds shall be available on or before the close of
business on the Business Day next preceding the following Payment Date;
provided that if, pursuant to Section 4.12, deposits to and withdrawals
from the Excess Funding Account are being made on a weekly or daily
basis, then such Eligible Investments shall mature on each Business Day
on a weekly or daily basis, as the case may be; provided further that
such Eligible Investments shall still mature so that funds shall be
available on or before the close of business on the Business Day next
preceding the following Payment Date. Funds deposited in the Excess
Funding Account on the Business Day preceding a Payment Date are not
required to be invested overnight.
16
(e) (i) The Trustee shall possess all right, title and
interest in and to all funds on deposit from time to time in, and all Eligible
Investments credited to, the Reserve Fund, the Interest Funding Account, the
Principal Funding Account and the Excess Funding Account (collectively, the
"Series 2003-2 Accounts") and in all proceeds thereof. The Series 2003-2
Accounts shall be under the sole dominion and control of the Trustee for the
benefit of the Certificateholders. If, at any time, any of the Series 2003-2
Accounts ceases to be an Eligible Deposit Account, the Trustee (or the Servicer
on its behalf) shall within 10 Business Days (or such longer period, not to
exceed 30 calendar days, as to which each Rating Agency may consent) establish a
new Series 2003-2 Account meeting the conditions specified in paragraph (a)(i),
(b)(i), (c)(i) or (d)(i) above, as applicable, as an Eligible Deposit Account
and shall transfer any cash and/or investments to such new Series 2003-2
Account. Neither the Transferor, the Servicer nor any other Person or entity
claiming by, through or under the Transferor, the Servicer or any such other
Person or entity shall have any right, title or interest in, or any right to
withdraw any amount from, any Series 2003-2 Account, except as expressly
provided herein. Schedule 1, which is hereby incorporated into and made part of
this Series Supplement, identifies each Series 2003-2 Account by setting forth
the account number of each such account, the account designation of each such
account and the name of the institution with which such account has been
established. If a substitute Series 2003-2 Account is established pursuant to
this Section, the Servicer shall provide to the Trustee an amended Schedule 1,
setting forth the relevant information for such substitute Series 2003-2
Account.
(ii) Pursuant to the authority granted to the Servicer in
Section 3.1(a) of the Agreement, the Servicer shall have the power,
revocable by the Trustee, to make withdrawals and payments or to
instruct the Trustee to make withdrawals and payments from the Series
2003-2 Accounts for the purposes of carrying out the Servicer's or the
Trustee's duties hereunder.
(f) Unless otherwise agreed to by the Rating Agencies, at no time
may funds on deposit in any Series 2003-2 Account in an amount greater than 10%
of the outstanding principal balance of the Certificates be invested in Eligible
Investments (other than obligations of the United States government or
investments in a mutual fund that does not have credit concentrations greater
than 10%) of any single entity or its Affiliates.
(g) Upon payment in full of all amounts payable on the Series
2003-2 Certificates pursuant to this Series Supplement, or any earlier date
contemplated by this Series Supplement, any funds remaining on deposit in any
Series 2003-2 Account shall be paid to the Transferor.
(h) The Trustee shall not in any way be held liable by reason of
any insufficiency in any Series 2003-2 Account held by the Trustee resulting
from any investment loss on any Eligible Investment included therein (except to
the extent that the Trustee is the obligor and has defaulted thereon).
SECTION 4.5 Deficiency Amount. On each Determination Date, with
respect to the related Payment Date (the "current Payment Date"), the Servicer
shall determine the amount (the "Deficiency Amount"), if any, by which
17
(a) the sum of
(i) the Monthly Interest for the current Payment Date,
(ii) any Monthly Interest for any prior Payment Dates not
distributed to the Certificateholders on a prior Payment Date,
(iii) Additional Interest, if any, for the current Payment
Date and any Additional Interest for any prior Payment Date not
distributed to the Certificateholders on such prior Payment Date (but
only to the extent permitted by applicable law),
(iv) the Certificateholders' Monthly Servicing Fee for the
current Payment Date,
(v) the Investor Default Amount for the current Payment
Date, and
(vi) the Series 2003-2 Allocation Percentage of the amount
of any Adjustment Payment required to be deposited in the Collection
Account pursuant to Section 3.9(a) of the Agreement with respect to the
related Collection Period that has not been so deposited as of such
Determination Date
exceeds
(b) the sum of Investor Non-Principal Collections for the current
Payment Date plus any Investment Proceeds, if any, with respect to such Payment
Date.
SECTION 4.6 Application of Investor Non-Principal Collections,
Investment Proceeds, Servicer Advances and Available Investor Principal
Collections. The Servicer shall direct the Trustee (by setting forth the
following amounts in the related Payment Date Statement) to make the following
payments on each Payment Date (and the Trustee shall distribute):
(a) On each Payment Date, an amount equal to the sum of Investor
Non-Principal Collections on deposit in the Collection Account (after giving
effect to repayment to the Servicer of any Servicer Advances from any previous
Payment Dates) and any Investment Proceeds and the Servicer Advance, if any, for
such Payment Date, with respect to such Payment Date in the following priority:
(i) first, an amount equal to the Class A Monthly
Interest for such Payment Date, plus the amount of any Class A Monthly
Interest for any prior Payment Dates not paid to the Class A
Certificateholders on such prior Payment Dates plus (but only to the
extent permitted under applicable law) the amount of any Class A
Additional Interest for the current Payment Date and, without
duplication, any Class A Additional Interest previously due but not
paid to the Class A Certificateholders on prior Payment Dates, shall be
deposited to the Interest Funding Account;
(ii) second, an amount equal to the Class B Monthly
Interest for such Payment Date, plus the amount of any Class B Monthly
Interest for any prior Payment Dates not paid to the Class B
Certificateholders on such prior Payment Dates plus (but only to the
18
extent permitted under applicable law) the amount of any Class B
Additional Interest for the current Payment Date and, without
duplication, any Class B Additional Interest previously due but not
paid to the Class B Certificateholders on prior Payment Dates, shall be
deposited to the Interest Funding Account;
(iii) third, an amount equal to the Class C Monthly
Interest for such Payment Date, plus the amount of any Class C Monthly
Interest for any prior Payment Dates not paid to the Class C
Certificateholders on such prior Payment Dates plus (but only to the
extent permitted under applicable law) the amount of any Class C
Additional Interest for the current Payment Date and, without
duplication any Class C Additional Interest previously due but not paid
to the Class C Certificateholders on prior Payment Dates, shall be
deposited to the Interest Funding Account;
(iv) fourth, if the Initial Servicer is not the Servicer,
an amount equal to the Certificateholders' Monthly Servicing Fee for
such Payment Date shall be paid to the Servicer (unless such amount has
been netted against deposits to the Collection Account);
(v) fifth, an amount equal to the Reserve Fund Deposit
Amount, if any, for such Payment Date shall be deposited in the Reserve
Fund;
(vi) sixth, an amount equal to the Investor Default
Amount, if any, for such Payment Date shall be treated as a portion of
Investor Principal Collections for such Payment Date;
(vii) seventh, an amount required to reimburse unreimbursed
Class A Investor Charge-Offs, Class B Investor Charge-Offs and Class C
Investor Charge-Offs pursuant to Section 4.9 shall be treated as a
portion of Investor Principal Collections for such Payment Date;
(viii) eighth, if the Initial Servicer is the Servicer, an
amount equal to the Certificateholders' Monthly Servicing Fee for that
Payment Date shall be paid to the Servicer, unless that amount has been
netted against deposits to the Collection Account by CDF or waived; and
(ix) ninth, the balance, if any, shall constitute the
"Transferor Amount" and shall be allocated and paid as set forth in
Section 4.10.
(b) On each Payment Date with respect to the Revolving Period, the
Servicer shall direct the Trustee in writing by setting forth the following
amounts on the Payment Date Statement to apply an amount equal to the Available
Investor Principal Collections deposited in the Collection Account for the
related Collection Period shall be applied in the following priority:
(i) first, if (A) the Unconcentrated Pool Balance at the
end of the preceding Collection Period is less than the Unconcentrated
Pool Balance at the end of the second preceding Collection Period and
(B) the Unconcentrated Pool Balance at the end of the preceding
Collection Period is less than the Required Participation Amount for
such Payment Date (calculated before giving effect to any deposits to
be made on such
19
Payment Date to the Excess Funding Account and any excess funding
account for any other Series in their revolving periods to be made on
such Payment Date), then the Servicer shall direct the Trustee to
deposit (and the Trustee shall deposit) Available Investor Principal
Collections into the Excess Funding Account in an amount which shall
reduce the Invested Amount such that, together with the deposits to the
excess funding accounts, if any, (and any resulting reductions in the
invested amounts) for other outstanding Series in their revolving
periods for such Payment Date, the Unconcentrated Pool Balance is equal
to the Required Participation Amount, and
(ii) second, an amount equal to the balance (such balance
being part of "Excess Principal Collections"), if any, of such
Available Investor Principal Collections shall be applied in accordance
with Section 4.4 of the Agreement.
For purposes of determining the amount to be applied pursuant to subparagraph
(i) above, allocations of the amounts to be deposited in the Excess Funding
Account and the excess funding account for other outstanding Series shall be
made pro rata on the basis of the invested amounts (including the Invested
Amount for Series 2003-2).
If the Servicer has elected in respect of a Collection Period to make
withdrawals from the Excess Funding Account on a daily or weekly basis pursuant
to Section 4.12(b), then deposits into the Excess Funding Account required by
this Section 4.6(b) shall be made on each Business Day in such Collection Period
(if daily withdrawals and deposits have been elected) or on each Wednesday (or
the next succeeding Business Day if such Wednesday is not a Business Day) in
such Collection Period (if weekly withdrawals and deposits have been elected).
In the case of such election, the Unconcentrated Pool Balance referred to in
clause (B) above shall be the Unconcentrated Pool Balance on the preceding
Business Day, in the case of an election to make daily deposits and withdrawals,
and on the Monday next preceding the related Wednesday, in the case of an
election to make weekly deposits and withdrawals.
(c) On each Payment Date (x) with respect to the Accumulation
Period or (y) an Early Amortization Period (if a Responsible Officer of the
Trustee has actual knowledge of such Early Amortization Period), an amount equal
to the Available Investor Principal Collections on deposit in the Collection
Account shall be paid in the following priority:
(i) first, an amount equal to Monthly Principal for such
Payment Date shall be deposited by the Servicer or the Trustee into the
Principal Funding Account; and
(ii) second, for each Payment Date with respect to the
Accumulation Period (unless an Early Amortization Event has occurred),
an amount equal to the balance (such balance being part of "Excess
Principal Collections"), if any, of such Available Investor Principal
Collections shall be applied in accordance with the written
instructions of the Servicer in accordance with Section 4.4 of the
Agreement.
SECTION 4.7 Payments to Series 2003-2 Certificateholders. (a) The
Servicer shall direct the Trustee (by setting forth the amounts in Section
4.7(a)(i) in the related Payment Date Statement) to make (and the Trustee shall
make) the following payments at the following times
20
from the Interest Funding Account, the Principal Funding Account and the Excess
Funding Account:
(i) on each Payment Date, available amounts on deposit in
the Interest Funding Account shall be paid to the Series 2003-2
Certificateholders in the following order of priority:
(A) first, to the Class A Certificateholders, an
amount equal to the sum of (i) the Class A Monthly Interest
for the current Payment Date, plus (ii) any Class A Monthly
Interest that was not paid on any prior Payment Date to the
Class A Certificateholders, plus (iii) to the extent permitted
under applicable law, the amount of any Class A Additional
Interest for the current Payment Date and, without
duplication, any Class A Additional Interest previously due
but not paid to the Class A Certificateholders;
(B) second, to the Class B Certificateholders,
an amount equal to the sum of (i) the Class B Monthly Interest
for the current Payment Date, plus (ii) any Class B Monthly
Interest that was not paid on any Payment Date prior to the
current Payment Date to the Class B Certificateholders, plus
(iii) to the extent permitted under applicable law, the amount
of any Class B Additional Interest for the current Payment
Date and, without duplication, any Class B Additional Interest
previously due but not paid to the Class B Certificateholders;
and
(C) third, to the Class C Certificateholders, an
amount equal to the sum of (i) the Class C Monthly Interest
for the current Payment Date, plus (ii) any Class C Monthly
Interest that was not paid on any Payment Date prior to the
current Payment Date to the Class C Certificateholders, plus
(iii) to the extent permitted under applicable law, the amount
of any Class C Additional Interest for the current Payment
Date and, without duplication, any Class C Additional Interest
previously due but not paid to the Class C Certificateholders;
and
(ii) on each Special Payment Date (if a Responsible
Officer of the Trustee has actual knowledge of the Early Amortization
Period) and on the Expected Final Payment Date, all amounts on deposit
in the Principal Funding Account shall be paid to the Series 2003-2
Certificateholders in the following order of priority: (A) first, to
the Class A Certificateholders until the outstanding principal balance
of the Class A Certificates has been reduced to zero; (B) second, to
the Class B Certificateholders until the outstanding principal balance
of the Class B Certificates has been reduced to zero; and (C) to the
Class C Certificateholders until the outstanding principal balance of
the Class C Certificates has been reduced to zero; provided, however,
that the maximum amount paid pursuant to this clause (ii) on any
Payment Date shall not exceed the excess, if any, of (x) the sum of the
outstanding principal balance of the Class A, Class B and Class C
Certificates, over (y) the sum of the unreimbursed Class A Investor
Charge-Offs, Class B Investor Charge-Offs and Class C Investor
Charge-Offs, each on such Payment Date.
21
(b) The payments to be made pursuant to this Section are subject
to the provisions of Sections 2.3, 9.2, 10.1 and 12.2 of the Agreement and
Section 8.1 and 8.2 of this Series Supplement.
SECTION 4.8 Application of Reserve Fund. (a) If Investor Non-
Principal Collections and Investment Proceeds on any Payment Date (plus the
amount of any Servicer Advance for such Payment Date) are not sufficient to make
the entire payments required on such Payment Date by Sections 4.6(a)(i), (ii),
(iii), (iv), (vi) and (viii), the Servicer shall direct the Trustee to withdraw
(and the Trustee shall withdraw) funds from the Reserve Fund to the extent
available therein, and apply such funds to complete the payments pursuant to
Section 4.6(a)(i), (ii), (iii), (iv), (vi) and (viii) in the numerical order
thereof.
(b) On the Termination Date, any funds in the Reserve Fund shall
be treated as Available Investor Principal Collections. Upon payment in full of
the outstanding principal balance of the Series 2003-2 Certificates, any funds
remaining on deposit in the Reserve Fund shall be paid to the Transferor.
SECTION 4.9 Investor Charge-Offs. If on any Payment Date (after
giving effect to the allocations, payments, withdrawals and deposits to be made
on such Payment Date) the balance of the Reserve Fund is zero, then the Class C
Invested Amount shall be reduced by the lesser of the Deficiency Amount for that
Payment Date and the Investor Default Amount for that Payment Date (the lesser
of such Deficiency Amount and such Investor Default Amount being a "Class C
Investor Charge-Off"). In the event that any such reduction of the Class C
Invested Amount would cause the Class C Invested Amount to be a negative number,
the Class C Invested Amount shall be maintained at or reduced to zero, and the
Class B Invested Amount shall be reduced by the amount of such excess (the
amount of such reduction being a "Class B Investor Charge-Off"). In the event
that any such reduction of the Class B Invested Amount would cause the Class B
Invested Amount to be a negative number, the Class B Invested Amount shall be
maintained at or reduced to zero, and the Class A Invested Amount shall be
reduced by the amount of such excess but not by more than the Class A Invested
Amount on such Payment Date (the amount of such reduction being a "Class A
Investor Charge-Off"). Class A Investor Charge-Offs, Class B Investor
Charge-Offs and Class C Investor Charge-Offs shall thereafter be reimbursed (in
that order) and the Class A Invested Amount, Class B Invested Amount and Class C
Invested Amount increased (in that order) (but not by an amount in excess of the
aggregate unreimbursed Class A Investor Charge-Offs, Class B Investor
Charge-Offs and Class C Investor Charge-Offs, as the case may be) on any Payment
Date by the sum of (a) Allocable Miscellaneous Payments with respect to such
Payment Date and (b) the amount allocated and available for that purpose
pursuant to Section 4.6(a)(vii). The Servicer shall be responsible for
calculating Class A, Class B and Class C Investor Charge-Offs and shall give the
Trustee notice thereof by setting forth such amounts in the Payment Date
Statement.
SECTION 4.10 Transferor Amount. The Servicer shall direct the
Trustee to apply (and the Trustee shall so apply), on each Payment Date, the
Transferor Amount for such Payment Date to make the following payments in the
following priority:
(a) an amount equal to the aggregate outstanding amounts of the
Monthly Servicing Fee which have been previously waived pursuant to Section 3.1
shall be paid to the Servicer; and
22
(b) the balance, if any, shall be released to the Transferor.
SECTION 4.11 Excess Principal Collections.
"Series 2003-2 Excess Principal Collections", with respect to any
Payment Date, shall mean an amount equal to the lesser of (a) the Series 2003-2
Principal Shortfall, if any, for such Payment Date and (b) an amount equal to
the product of (x) excess principal collections for all Series for such Payment
Date and (y) a fraction, the numerator of which is the Series 2003-2 Principal
Shortfall for such Payment Date and the denominator of which is the aggregate
amount of principal shortfalls for all Series for such Payment Date.
SECTION 4.12 Excess Funding Account. (a) Any funds on deposit in
the Excess Funding Account at the beginning of the Accumulation Period or upon
the occurrence of an Early Amortization Event shall be deposited in the
Principal Funding Account. In addition, no funds shall be deposited in the
Excess Funding Account during the Accumulation Period or any Early Amortization
Period.
(b) If (i) on any Determination Date during the Revolving Period
there are any funds in the Excess Funding Account and (ii) the Unconcentrated
Pool Balance at the end of the preceding Collection Period is greater than the
Unconcentrated Pool Balance at the end of the second preceding Collection
Period, then, subject to the other provisions of this Section 4.12(b) and to
Sections 4.12(c) and (d), the Invested Amount and the invested amounts (but, in
each case, not in excess of the initial principal amount of such Series) for all
other outstanding Series that provide for an excess funding account or similar
arrangement and are in their revolving periods shall be increased such that,
after giving effect to such increases, the Required Participation Amount is at
least equal to the Unconcentrated Pool Balance. On such Determination Date, the
Servicer shall notify the Trustee of the amount, if any, of such increase in the
Invested Amount and the Trustee shall withdraw from the Excess Funding Account
and pay to the Transferor or allocate to one or more other Series, on the
immediately succeeding Payment Date, an amount equal to the amount of such
increase in the Invested Amount. To the extent that the Invested Amount is
increased by any payment to the Transferor or any allocation to one or more
other Series, the Transferor's Interest or such other Series' invested amount,
as applicable, shall be reduced by the amount of such payment. In addition, any
increase in the Invested Amount is subject to the condition that after giving
effect to such increase the Unconcentrated Pool Balance equals or exceeds the
Required Participation Amount. In connection with the foregoing, the Transferor
shall endeavor (taking into account any seasonality experienced in the Accounts
in the Trust) to minimize the amounts on deposit, from time to time, in the
Excess Funding Account.
The Transferor may elect to make withdrawals from the Excess Funding
Account and the excess funding accounts or similar arrangements for other Series
on a daily or weekly basis during a Collection Period by giving the Trustee
notice of such election at least two Business Days and no more than five
Business Days prior to the commencement of such daily or weekly withdrawals. If
such election is made, then deposits into the Excess Funding Account and excess
funding accounts or similar arrangements for other Series shall be made on a
similar basis for the related Collection Period. If such election is for
withdrawals on a daily basis, then such withdrawals shall be made on each
Business Day and the Unconcentrated Pool Balance to be
23
referenced shall be the Unconcentrated Pool Balance on the next preceding
Business Day. If such election is for withdrawals on a weekly basis, then such
withdrawals shall be made on each Wednesday (or if such Wednesday is not a
Business Day, then on the Business Day next succeeding such Wednesday) and the
Unconcentrated Pool Balance to be referenced shall be the Unconcentrated Pool
Balance on the preceding Monday.
(c) In the event that other Series issued by the Trust provide for
excess funding accounts or other arrangements similar to the Excess Funding
Account involving fluctuating levels of investments in Principal Receivables,
(i) the allocation of additional Principal Receivables to increase the Invested
Amount and the invested amounts of such other Series (and the related
withdrawals from the Excess Funding Account and the other excess funding or
similar accounts) shall be based on the proportion that the amount on deposit in
the Excess Funding Account bears to amounts on deposit in the excess funding
accounts (including the Excess Funding Account) of all Series providing for
excess funding accounts or such similar arrangements or to amounts otherwise
similarly available and (ii) the deposit of amounts into the Excess Funding
Account and the excess funding accounts of such other Series shall be pro rata
based on the proportion that the Invested Amount bears to the invested amounts
(including the Invested Amount) of all Series providing for excess funding
accounts or such similar arrangements.
(d) In the event that any other Series is in an amortization
period, early amortization period or accumulation period, the amounts of any
withdrawals from the Excess Funding Account shall be applied first to satisfy in
full any then applicable funding or payment requirements of such Series and
second to make a payment to the Transferor. In the event that more than one
other Series is in an amortization period, early amortization period or
accumulation period, the amounts of any withdrawals from the Excess Funding
Account shall be allocated (and, if necessary, reallocated) among such Series as
specified in the related Supplements for such Series, to meet the funding or
payment requirements of each such Series first to satisfy in full all then
applicable funding or payment requirements of each such Series and second to
make a payment to the Transferor.
ARTICLE V
Payment and Reports to
Series 2003-2 Certificateholders
SECTION 5.1 Payments. (a) On each Payment Date, the Trustee as
paying agent shall pay to each Series 2003-2 Certificateholder of record on the
preceding Record Date (other than as provided in Section 12.2 of the Agreement
respecting a final payment) such Series 2003-2 Certificateholder's pro rata
share (based on the outstanding principal balances of the Series 2003-2
Certificates held by such Certificateholder) of the amounts on deposit in the
Series 2003-2 Accounts as is payable to Series 2003-2 Certificateholders on such
Payment Date pursuant to and subject to the applicable priorities set forth in
Section 4.7.
(b) Except as provided in Section 12.2 of the Agreement with
respect to a final payment, payments to Series 2003-2 Certificateholders
hereunder shall be made by check mailed to each Series 2003-2 Certificateholder
at such Certificateholder's address appearing in the
24
Certificate Register without presentation or surrender of any Series 2003-2
Certificate or the making of any notation thereon; provided, however, that with
respect to Series 2003-2 Certificates registered in the name of a Depository,
such payments shall be made to such Depository in immediately available funds.
SECTION 5.2 Reports and Statements to Series 2003-2
Certificateholders. (a) At least two Business Days prior to each Payment Date,
the Servicer shall provide to the Trustee and the Rating Agencies a statement
substantially in the form of Exhibit B (a "Payment Date Statement"), and on each
Payment Date the Trustee shall forward to each Series 2003-2 Certificateholder
such statement prepared by the Servicer setting forth certain information
relating to the Trust and the Series 2003-2 Certificates.
(b) A copy of each statement provided pursuant to paragraph (a)
and a copy of the Pooling and Servicing Agreement (without exhibits) and this
Series Supplement shall be made available to Series 2003-2 Certificateholders of
record for inspection at the Corporate Trust Office during the Trustee's normal
business hours.
(c) On or before January 31 of each calendar year, beginning with
calendar year 2001, the Trustee shall furnish or cause to be furnished to each
Person who at any time during the preceding calendar year was a Series 2003-2
Certificateholder, a statement prepared by the Servicer containing the
information which is required to be contained in the statement to Series 2003-2
Certificateholders as set forth in paragraph (a) above, aggregated for such
calendar year or the applicable portion thereof during which such Person was a
Series 2003-2 Certificateholder, together with other information as is required
to be provided by an issuer of indebtedness under the Internal Revenue Code for
the preceding calendar year and such other customary information as is necessary
to enable the Series 2003-2 Certificateholders (or Certificate Owners) to
prepare their tax returns. Such obligation of the Trustee shall be deemed to
have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Internal
Revenue Code as from time to time in effect.
ARTICLE VI
Early Amortization Events
SECTION 6.1 Additional Early Amortization Events. The occurrence
of any of the following events shall, immediately upon the occurrence thereof
without notice or other action on the part of the Trustee or the Series 2003-2
Certificateholders, be deemed to be an Early Amortization Event solely with
respect to Series 2003-2 (each, an "Additional Early Amortization Event"):
(a) on any Payment Date, the balance of the Reserve Fund is less
than three and one-half percent (3.5%) of the aggregate outstanding principal
balance of the Series 2003-2 Certificates, in each case after giving effect to
all deposits, withdrawals and payments on such Payment Date; or
(b) any Servicer Default occurs; or
25
(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
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
(d) the outstanding principal amount of the Series 2003-2
Certificates is not fully repaid on the Expected Final Payment Date; or
(e) the ratio (expressed as a percentage) of (i) the average for
each month of the net losses on the Receivables (exclusive of the Ineligible
Receivables) owned by the Trust (i.e., gross losses less recoveries on any
Receivables) (including recoveries from collateral security in addition to
recoveries from the products, recoveries from Manufacturers and insurance
proceeds) during any three consecutive calendar months, to (ii) the average of
the month-end aggregate balances of those Receivables (without deducting
therefrom the Discount Portion) for such three-month period, exceeds five
percent (5%) on an annualized basis; provided, that the percentage in this
clause (e) may be changed, or any Early Amortization Event relating to this
clause (e) may be waived, at the direction of the Transferor and without the
consent of any Series 2003-2 Certificateholder upon the satisfaction of the
Rating Agency Condition; or
(f) the sum of all Eligible Investments and amounts on deposit in
the Excess Funding Account and any excess funding accounts for any other Series
represents more than fifty percent (50%) of the total assets of the Trust on
each of six or more consecutive Determination Dates, after giving effect to all
payments made or to be made on the Payment Dates relating to (i.e., next
succeeding) those Determination Dates; or
(g) the Overconcentration Amount exceeds zero for a period of five
Business Days after any Payment Date, unless the Rating Agency Condition shall
have been satisfied with respect to the existence of the Overconcentration
Amount.
ARTICLE VII
Optional Repurchase
SECTION 7.1 Optional Repurchase. (a) On any Payment Date
occurring after the date on which the Invested Amount is reduced to less than
ten percent (10%) of the initial principal amount of the Series 2003-2
Certificates on the Closing Date or less, the Transferor shall have the option,
subject to the condition set forth in paragraph (c), to purchase the entire, but
not less than the entire, Series 2003-2 Certificateholders' Interest, at a
purchase price equal to the Reassignment Amount for such Payment Date.
(b) The Transferor shall give the Servicer and the Trustee at
least 10 Business Days' prior written notice of the Payment Date on which the
Transferor intends to exercise such purchase option. Not later than 12:00 noon,
New York City time, on such Payment Date the Transferor shall deposit the
Reassignment Amount into the Collection Account in immediately
26
available funds. Such purchase option is subject to payment in full of the
Reassignment Amount and if for any reason the Transferor fails to deposit the
Reassignment Amount, payments shall continue to be made to Certificateholders as
provided herein. The Reassignment Amount shall be paid as set forth in Section
8.1(b).
(c) If at the time the Transferor exercises its purchase option
hereunder the Transferor's unsecured debt is unrated or has a rating lower than
the lowest investment grade rating of any Rating Agency, the Transferor shall
deliver to the Trustee on such Payment Date an Opinion of Counsel (which must be
an independent outside counsel) to the effect that, in reliance on certain
certificates to the effect that the Series 2003-2 Certificateholders' Interest
purchased by the Transferor constitutes fair value for the consideration paid
therefor and as to the Transferor is solvent, the purchase of the Series 2003-2
Certificateholders' Interest would not be considered a fraudulent conveyance
under applicable law.
ARTICLE VIII
Final Payments
SECTION 8.1 Sale of Certificateholders' Interest Pursuant to
Section 2.3 of the Agreement; Payments Pursuant to Section 7.1 of this Series
Supplement or Section 2.3 or 12.2(c) of the Agreement. (a) The amount to be paid
by the Transferor to the Collection Account with respect to Series 2003-2 in
connection with a purchase of the Certificateholders' Interest pursuant to
Section 2.3 of the Agreement shall equal the Reassignment Amount for the Payment
Date on which such repurchase occurs.
(b) With respect to the Reassignment Amount deposited into the
Collection Account pursuant to Section 7.1 or 8.1 of this Series Supplement or
Section 2.3 of the Agreement or any Termination Proceeds deposited into the
Collection Account pursuant to Section 12.2(c) of the Agreement, the Trustee
shall, not later than 12:00 noon, New York time, on the Payment Date on which
such amounts are deposited (or, if such date is not a Payment Date, on the
immediately following Payment Date) (in the priority set forth below): (i)
first, deposit an amount equal to the Invested Amount on such Payment Date into
the Principal Funding Account, (ii) second, deposit an amount equal to the
amount payable on such Payment Date pursuant to Section 4.7(a)(i) into the
Interest Funding Account and (iii) third, pay the remainder of any Termination
Proceeds to the Transferor; provided, however, that the sum of the amounts
allocated pursuant to clauses (i) through (iii) shall not exceed the
Reassignment Amount for Series 2003-2.
(c) Notwithstanding anything to the contrary in this Series
Supplement or the Agreement, any Termination Proceeds deposited in the Principal
Funding Account and the Interest Funding Account pursuant to Section 8.1 of this
Series Supplement and all other amounts on deposit therein on the applicable
Payment Date shall be paid in full to the Series 2003-2 Certificateholders on
such date in the following order of priority:
(i) first to Class A Certificateholders, in an amount
equal to the sum of (x) the Class A Monthly Interest for the current
Payment Date and, without duplication, any unpaid Class A Monthly
Interest for any previous Payment Date, (y) to the extent
27
permitted by applicable law, any Class A Additional Interest for the
current Payment Date and, without duplication, any unpaid Class A
Additional Interest for any previous Payment Date, and (z) the Class A
Invested Amount;
(ii) second to Class B Certificateholders, in an amount
equal to the sum of (x) the Class B Monthly Interest for the current
Payment Date and, without duplication, any unpaid Class B Monthly
Interest for any previous Payment Date, (y) to the extent permitted by
applicable law, any Class B Additional Interest for the current Payment
Date and, without duplication, any unpaid Class B Additional Interest
for any previous Payment Date, and (z) the Class B Invested Amount; and
(iii) third to Class C Certificateholders, in an amount
equal to the sum of (x) the Class C Monthly Interest for the current
Payment Date and, without duplication, any unpaid Class C Monthly
Interest for any previous Payment Date, (y) to the extent permitted by
applicable law, any Class C Additional Interest for the current Payment
Date and, without duplication, any unpaid Class C Additional Interest
for any previous Payment Date and (z) the Class C Invested Amount.
Any remaining funds shall be released to the Transferor.
Any payment made pursuant to paragraph (b) above and this paragraph (c)
shall be deemed to be a final payment pursuant to Section 12.2 of the Agreement
with respect to Series 2003-2.
SECTION 8.2 Payment of Proceeds of Sale, Disposition or
Liquidation of the Receivables Pursuant to Section 9.2 of the Agreement. (a) Not
later than 12:00 noon, New York City time, on the Payment Date following the
date on which the Insolvency Proceeds are deposited into the Collection Account
pursuant to Section 9.2(b) of the Agreement, the Trustee shall (after giving
effect to any deposits and payments otherwise to be made on such Payment Date)
(x) deduct an amount equal to the amount distributable on such Payment Date
pursuant to Section 4.7(a)(ii) from the Series 2003-2 Allocation Percentage of
the Insolvency Proceeds and deposit such amount in the Principal Funding
Account, (y) deduct an amount equal to the amount payable on such Payment Date
pursuant to Section 4.7(a)(i) from the Series 2003-2 Allocation Percentage of
the Insolvency Proceeds, and deposit such amount in the Interest Funding
Account, and (z) allocate the remainder of the Series 2003-2 Allocation
Percentage of the Insolvency Proceeds to the Transferor's Interest and release
the same to the Transferor on such Payment Date.
(b) Notwithstanding anything to the contrary in this Series
Supplement or the Agreement, the entire amount deposited in the Principal
Funding Account and the Interest Funding Account pursuant to this Section and
all other amounts on deposit therein shall be distributed in full to the Series
2003-2 Certificateholders in the order of priority set forth in Section 4.7 on
the Payment Date on which funds are deposited pursuant to this Section 8.2 (or,
if not so deposited on a Payment Date, on the immediately following Payment
Date) and any payment made pursuant to this Section 8.2 shall be deemed to be a
final payment pursuant to Section 12.2 of the Agreement with respect to Series
2003-2.
28
ARTICLE IX
Miscellaneous Provisions
SECTION 9.1 Securities Law Filings. The Transferor shall cause
the Class A and Class B Certificates to be registered under the Securities
Exchange Act of 1934, as amended, to the extent required to do so under
applicable law.
SECTION 9.2 Ratification of Agreement. As supplemented by this
Series Supplement, the Agreement is in all respects ratified and confirmed and
the Agreement as so supplemented by this Series Supplement shall be read, taken
and construed as one and the same instrument.
SECTION 9.3 Counterparts. This Series Supplement may be executed
in two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
SECTION 9.4 Governing Law. This Series Supplement 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).
SECTION 9.5 Limitation of Class B and Class C Certificates. (a)
Each purchaser of a Class B Certificate hereby represents and warrants to the
Trustee and the LLC, and hereby agrees with the Trustee and the LLC, and such
purchaser hereby acknowledges (except to the extent that such provision has been
waived or modified by the LLC) that the Class B Certificates may not be acquired
by or for the account of (i) an "employee benefit plan" (as defined in section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), that is subject to the provisions of Title I of ERISA, (ii) a plan
described in section 4975(e)(1) of the Code or (iii) any entity whose underlying
assets include plan assets by reason of a plan's investment in the entity. By
accepting and holding a Class B Certificate, the holder thereof shall be deemed
to have represented and warranted that it is not within any of the categories
described in the preceding sentence.
(b) Each purchaser of a Class C Certificate (other than the LLC)
(each, the "Purchaser") hereby represents and warrants to the Trustee and the
LLC, and hereby agrees with the Trustee and the LLC, and the Purchaser hereby
acknowledges, as follows (except to the extent that such provisions have been
waived or modified by the LLC in accordance with the Agreement or this Series
Supplement):
(1) The Class C Certificates have not been and will not
be registered under the Securities Act or the securities laws of any
jurisdiction. Consequently, the Class C Certificates are not
transferable other than pursuant to an exemption from the registration
requirements of the Securities Act and satisfaction of certain
provisions of this Series Supplement.
(2) The Purchaser is a "qualified institutional buyer"
("QIB") within the meaning of Rule 144A under the Securities Act ("Rule
144A") and is purchasing for its
29
own account (and not for the account of others) or as a fiduciary or
agent for others (which others also are QIBs and have executed a letter
substantially in the form of Exhibit C to this Series Supplement and
have delivered a copy of such letter to the LLC and the Trustee). The
Purchaser is aware that it (or any account for which it is purchasing)
may be required to bear the economic risk of an investment in the Class
C Certificates for an indefinite period, and it (or such account) is
able to bear such risk for an indefinite period.
(3) No sale, pledge or other transfer of any Class C
Certificate may be made by any Person unless (a) either (i) such sale,
pledge or other transfer is made to the LLC, or (ii) so long as the
Class C Certificates are eligible for resale pursuant to Rule 144A
under the Securities Act, such sale, pledge or other transfer is made
to a Person whom the transferor reasonably believes after due inquiry
is a QIB acting for its own account (and not for the account of others)
or as a fiduciary or agent for others (which others also are QIBs) to
whom notice is given that the sale, pledge or transfer is being made in
reliance on Rule 144A.
(4) The Class C Certificates may not be acquired by or
for the account of (i) an "employee benefit plan" (as defined in
section 3(3) of the ERISA), that is subject to the provisions of Title
I of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code or
(iii) any entity whose underlying assets include plan assets by reason
of a plan's investment in the entity. By accepting and holding a Class
C Certificate, the holder thereof shall be deemed to have represented
and warranted that it is not within any of the categories described in
the preceding sentence.
(5) The Purchaser acknowledges that it has been afforded
an opportunity to request from the LLC, the Servicer and Deutsche Bank
Securities Inc. ("DBSI") or X.X. Xxxxxx Securities Inc. ("JPMSI"; JPMSI
or DBSI, as applicable, may be referred to as the "Initial Purchaser"),
and has received and reviewed, all information which it has deemed
necessary in connection with its decision to purchase the Class C
Certificates. The Purchaser acknowledges that none of the LLC, the
Servicer, the Initial Purchaser nor any of their respective affiliates
or any Person representing any of them has made any representation to
it with respect to any information relating to the offering or sale of
the Class C Certificates, other than the information contained in the
private placement memorandum for the Class C Certificates, a copy of
which has been delivered to it.
(6) The Purchaser understands that all information
furnished to it by the LLC, the Servicer or the Initial Purchaser or
representatives of the LLC, the Servicer or the Initial Purchaser in
connection with its evaluation of an investment in the Class C
Certificates was provided to it on a confidential basis and it agrees
not to disclose such information, in whole or in part, to any other
Person.
(7) The Purchaser further represents and warrants to the
LLC and the Trustee that, except to the extent permitted in paragraphs
(8) and (9) below, the Purchaser: (i) is properly classified as a
"corporation" as described in Section 7701(a)(3) of the Code which is
created or organized under the laws of the United States, any State
thereof or the District of Columbia, and will not knowingly take any
action which will cause it not to be
30
so classified; and (ii) is not an S corporation as described in Section
1361 of the Code (an "S Corporation"), and will not knowingly take any
action which will cause it to be so classified.
(8) No Class C Certificates shall be transferred or sold
to any grantor trust, partnership or S Corporation (each a "Pass-
Through Entity") unless such entity represents that (i) not 25% or more
(or that amount which the Internal Revenue Service (or any successor
thereto) may subsequently indicate is an amount which prevents treating
direct and/or indirect owners of a Pass-Through Entity as partners in
the Trust for purposes of determining whether the Trust is a publicly
traded partnership) of the value of the assets of the Pass-Through
Entity is attributable to the Pass-Through Entity's ownership interest
in certificates issued by the Trust other than the Class A and Class B
Certificates and (ii) the Pass-Through Entity does not specially
allocate to any of its beneficiaries amounts received in respect of
certificates issued by the Trust other than Class A and Class B
Certificates. Any purported transfer, assignment or other conveyance
(including any participation) of the Class C Certificates in
contravention of the immediately preceding sentence shall be null and
void ab initio and the purported transferor shall continue to be
treated as the owner of such Class C Certificates and the purported
transferee shall not be recognized as a Class C Certificateholder by
the LLC or the Trustee.
(9) No Class C Certificates shall be transferred or sold
to any foreign investor ("Foreign Investor") which does not make the
representations contained in Annex 1 to the representation letter
required to be signed by a purchaser in connection with the purchase of
Class C Certificates. A Foreign Investor for this purpose includes any
person who is not: (1) a citizen or resident of the United States; (2)
a corporation or partnership or other entity treated for Federal income
tax purposes as a corporation or a partnership created or organized in
or under the laws of the United States, any State thereof or the
District of Columbia; (3) an estate, the income of which is subject to
United States Federal income tax, regardless of its source; or (4) a
trust if a U.S. court is able to exercise primary supervision over the
administration of the trust and one or more U.S. persons have the
authority to control all substantial decisions of the trust.
Notwithstanding the preceding sentence, to the extent provided in
Treasury regulations, certain trusts in existence on August 20, 1996,
and treated as United States persons under the Code and applicable
Treasury regulations prior to that date, that elect to continue to be
treated as United States persons under the Code or applicable Treasury
regulations will not be Foreign Investors.
(10) The Purchaser confirms that it has neither acquired
nor will it sell, trade or transfer any interest in any Class C
Certificate or cause an interest in any Class C Certificate to be
marketed on or through (i) an "established securities market" within
the meaning of Section 7704(b)(1) of the Code and any proposed,
temporary or final treasury regulation thereunder, including, without
limitation, an over-the-counter market or an interdealer quotation
system that regularly disseminates firm buy or sell quotations or (ii)
"secondary market" or "substantial equivalent thereof" within the
meaning of Section 7704(b)(2) of the Code and any proposed, temporary
or final treasury regulation thereunder, including a market wherein
interests in the Class C Certificates are regularly quoted by any
person making a market in those interests and a market wherein any
31
person regularly makes available bid or offer quotes with respect to
interests in the Class C Certificates and stands ready to effect buy or
sell transactions at the quoted prices for itself or on behalf of
others. Any purported transfer, assignment or other conveyance of any
Class C Certificate in contravention of the foregoing covenant will be
null and void ab initio and the purported transferor will continue to
be treated as the holder of such Class C Certificate and the purported
transferee will not be recognized as a Class C Certificateholder by the
LLC, the Servicer or the Trustee.
(11) Notwithstanding the foregoing, at no time shall the
aggregate number of Private Holders exceed 100. Any purported transfer,
assignment or other conveyance (including any participation) of the
Class C Certificates in contravention of the immediately preceding
sentence will be null and void ab initio and the purported transferor
will continue to be treated as the holder of those Class C Certificates
and the purported transferee will not be recognized as a Class C
Certificateholder by the LLC, the Servicer or the Trustee. "Private
Holder" means each holder of a right to receive interest or principal
in respect of any direct or indirect interest in the Trust, including
any financial instrument or contract the value of which is determined
in whole or part by reference to the Trust (including the Trust's
assets, income of the Trust or payments made by the Trust), excluding
any interest in the Trust represented by any series or class of
certificates or any other interests as to which the Trustee has
received an opinion of counsel to the effect that that series, class or
other interest will be treated as debt or otherwise not as an equity
interest in either the Trust or the Receivables for federal income tax
purposes (unless that interest is convertible or exchangeable into an
interest in the Trust or the Trust's income or that interest provides
for payment of equivalent value). Notwithstanding the immediately
preceding sentence, "Private Holder" will also include any other person
that the LLC determines is a "partner" within the meaning of Section
1.7704-1(h)(1)(ii) of the U.S. Treasury Regulations (including by
reason of Section 1.7704-1(h)(3)) or any successor provision of law.
Any person holding more than one interest in the Trust, each of which
separately would cause that person to be a Private Holder, will be
treated as a single Private Holder. Each holder of an interest in a
Private Holder which is a partnership, S corporation or a grantor trust
under the Code will be treated as a Private Holder unless excepted with
the consent of the LLC (which consent will be based on an opinion of
counsel generally to the effect that the action taken pursuant to the
consent will not cause the Trust to become a publicly traded
partnership treated as a corporation). Notwithstanding anything to the
contrary herein, each Class C Certificateholder, and each holder of any
Class of any Series if with respect to such Class no opinion is
delivered to the effect that the Certificates of such Class will be
treated as debt for federal income tax purposes, will be considered to
be a Private Holder.
(12) The Class C Certificates will be issued in
denominations of $1,000,000 and integral multiples of $100,000 in
excess thereof. No Class C Certificate may be subdivided upon transfer
or exchange in a manner so that the resulting Class C Certificate if it
had been sold in the original offering would have had an initial
offering price of less than $1,000,000 and any purported transfer,
assignment or conveyance of a Class C Certificate in contravention of
the immediately preceding sentence will be void ab initio
32
and the purported transferor will continue to be treated as the owner
of that Class C Certificate for all purposes.
(13) Without limiting the foregoing, no transfer, pledge,
assignment or conveyance may be made to any one Person for Class C
Certificates with a face amount of less than $1,000,000 and, in the
case of any Person acting on behalf of one or more third parties (other
than a bank (as defined in Section 3(a)(2) of the Securities Act)
acting in its fiduciary capacity), for Class C Certificates with a face
amount of less than that amount for each of those third parties. Any
purported transfer, assignment or conveyance in contravention of the
immediately preceding sentence will be void ab initio and the purported
transferor will continue to be treated as the owner of the Class C
Certificates for all purposes. Neither the LLC nor the Trustee will be
obligated to register the Class C Certificates under the Securities
Act, qualify the Class C Certificates under the securities laws of any
state or provide registration rights to any purchaser or holder
thereof.
(14) No transfer, assignment or conveyance of a Class C
Certificate will be effective unless the LLC and the Trustee shall have
received a letter, substantially in the form of Exhibit C to this
Series Supplement, from the transferee, assignee or recipient of the
conveyance.
(15) The Class C Certificates will bear legends
substantially to the effect of the matters contemplated by paragraphs
(1) through (14) above, unless the LLC determines otherwise in
accordance with applicable law.
(16) If the Purchaser of the Class C Certificate is a
Foreign Investor, the representations and warranties contained in Annex
1 to the form of letter in Exhibit C to this Series Supplement required
to be signed by Foreign Investors purchasing Class C Certificates are
incorporated by reference.
SECTION 9.6 The Trustee; Paying Agent; Transfer Agent and
Registrar. The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Series Supplement, for or in
respect of the calculation or verification of any of the amounts, allocation or
payments set forth in Article IV and Article VIII or for or in respect of the
recitals contained herein, all of which recitals are made solely by the
Transferor; provided, however, that this sentence shall not limit the
obligations of the Trustee contemplated by Section 4.2(b) of this Series
Supplement; it being agreed and understood that the corresponding Section 9.6 of
any other Supplement shall not limit the obligations of the Trustee contemplated
by the corresponding Section 4.2(b) of such Supplement.
SECTION 9.7 Instructions in Writing. All instructions given by
the Servicer to the Trustee pursuant to this Series Supplement shall be in
writing, and may be included in a Payment Date Statement.
SECTION 9.8 Initial Funding of Reserve Fund. On the Closing Date
the Transferor shall cause to be deposited with the Trustee, and the Trustee
shall deposit in the Reserve Fund, available funds in an amount equal to three
and one-half percent (3.5%) of the aggregate initial principal balance of the
Series 2003-2 Certificates.
33
SECTION 9.9 Severability; Certificate Rate Limitation. (a) If any
one or more of the covenants, agreements, provisions or terms of this Series
Supplement or any Series 2003-2 Certificate shall for any reason whatsoever be
held invalid, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or terms
of this Series Supplement and shall in no way affect the validity or
enforceability of the other provisions of this Series Supplement or of such
Series 2003-2 Certificate.
(b) Notwithstanding anything in this Series Supplement, the
Agreement, or any Series 2003-2 Certificate to the contrary, if at any time any
Certificate Rate, together with all fees, charges and other amounts which are
treated as interest on any Series 2003-2 Certificate under applicable law
(collectively the "Charges"), shall exceed the maximum lawful rate (the "Maximum
Rate") which may be contracted for, charged, taken, received or reserved by the
Series 2003-2 Certificateholders in accordance with the terms of this Series
Supplement, the Agreement or any Series 2003-2 Certificate, then such
Certificate Rate, together with all Charges payable in respect of the Series
2003-2 Certificate, shall be limited to the Maximum Rate and, to the extent
lawful, such Certificate Rate and Charges that would have been payable in
respect of the Series 2003-2 Certificates, but were not payable as a result of
the operation of this Section, shall be cumulated and the Certificate Rate and
Charges payable to the Series 2003-2 Certificateholders in respect of other
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount shall have been received by the Series 2003-2
Certificateholders.
SECTION 9.10 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
[SIGNATURES FOLLOW]
34
IN WITNESS WHEREOF, the Transferor, the Servicer and the Trustee have
caused this Series Supplement to be duly executed as of the day and year first
above written.
CDF FINANCING, L.L.C.,
as Transferor
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Manager
S-1
GE COMMERCIAL DISTRIBUTION FINANCE
CORPORATION,
as Servicer
By: /s/ Xxxxxx X. Bay
---------------------
Name: Xxxxxx X. Bay
Title: Attesting Secretary
S-2
WILMINGTON TRUST COMPANY,
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-3
EXHIBIT A
FORM OF CLASS [ ] CERTIFICATE
Initial
REGISTERED Principal Balance: *
$__________
Certificate No. R-
CUSIP NO.
[Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
[FOR CLASS B CERTIFICATES, INSERT:
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (I) AN "EMPLOYEE
BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA")), THAT IS SUBJECT TO THE PROVISIONS
OF TITLE I OF ERISA, (II) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE OR
(III) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A
PLAN'S INVESTMENT IN THE ENTITY. BY ACCEPTING AND HOLDING THIS CERTIFICATE, THE
HOLDER THEREOF SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT
WITHIN ANY OF THE CATEGORIES DESCRIBED IN THE PRECEDING SENTENCE.
[FOR CLASS C CERTIFICATES INSERT:
THE PURCHASER OF THIS CERTIFICATE (THE "PURCHASER") HEREBY REPRESENTS AND
WARRANTS TO THE TRUSTEE AND CDF FINANCING, L.L.C. ("LLC"), AND HEREBY AGREES
WITH THE TRUSTEE AND THE LLC, AND THE PURCHASER HEREBY ACKNOWLEDGES, AS FOLLOWS:
(1) THE CLASS C CERTIFICATES HAVE NOT BEEN AND WILL NOT
BE REGISTERED UNDER THE SECURITIES ACT OR THE SECURITIES LAWS OF ANY
JURISDICTION. CONSEQUENTLY, THE CLASS C CERTIFICATES ARE NOT
TRANSFERABLE OTHER THAN PURSUANT TO AN EXEMPTION FROM
----------------
* Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
Ex. A-1
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SATISFACTION OF
CERTAIN PROVISIONS OF THE SERIES SUPPLEMENT.
(2) THE PURCHASER IS A "QUALIFIED INSTITUTIONAL BUYER"
("QIB") WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ("RULE
144A") AND IS PURCHASING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT
OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE
QIBS AND HAVE EXECUTED A LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C
TO THE SERIES SUPPLEMENT AND HAVE DELIVERED A COPY OF SUCH LETTER TO
THE LLC AND THE TRUSTEE). THE PURCHASER IS AWARE THAT IT (OR ANY
ACCOUNT FOR WHICH IT IS PURCHASING) MAY BE REQUIRED TO BEAR THE
ECONOMIC RISK OF AN INVESTMENT IN THE CLASS C CERTIFICATES FOR AN
INDEFINITE PERIOD, AND IT (OR SUCH ACCOUNT) IS ABLE TO BEAR SUCH RISK
FOR AN INDEFINITE PERIOD.
(3) NO SALE, PLEDGE OR OTHER TRANSFER OF ANY CLASS C
CERTIFICATE MAY BE MADE BY ANY PERSON UNLESS (A) EITHER (I) SUCH SALE,
PLEDGE OR OTHER TRANSFER IS MADE TO THE LLC, OR (II) SO LONG AS THE
CLASS C CERTIFICATES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT, SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE
TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY
IS A QIB ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS)
OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBS) TO
WHOM NOTICE IS GIVEN THAT THE SALE, PLEDGE OR TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A.
(4) THE CLASS C CERTIFICATES MAY NOT BE ACQUIRED BY OR
FOR THE ACCOUNT OF (I) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN
SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA")), THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF
ERISA, (II) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE OR (III)
ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A
PLAN'S INVESTMENT IN THE ENTITY. BY ACCEPTING AND HOLDING A CLASS C
CERTIFICATE, THE HOLDER THEREOF SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT IT IS NOT WITHIN ANY OF THE CATEGORIES DESCRIBED IN THE
PRECEDING SENTENCE.
(5) THE PURCHASER ACKNOWLEDGES THAT IT HAS BEEN AFFORDED
AN OPPORTUNITY TO REQUEST FROM THE LLC, THE SERVICER AND DEUTSCHE BANK
SECURITIES INC. (THE "INITIAL PURCHASER"), AND HAS RECEIVED AND
REVIEWED, ALL INFORMATION WHICH IT HAS DEEMED NECESSARY IN CONNECTION
WITH ITS DECISION TO PURCHASE THE CLASS C CERTIFICATES. THE PURCHASER
ACKNOWLEDGES THAT NONE OF THE LLC, THE SERVICER, THE INITIAL PURCHASER
NOR ANY OF
Ex. A-2
THEIR RESPECTIVE AFFILIATES OR ANY PERSON REPRESENTING ANY OF THEM HAS
MADE ANY REPRESENTATION TO IT WITH RESPECT TO ANY INFORMATION RELATING
TO THE OFFERING OR SALE OF THE CLASS C CERTIFICATES, OTHER THAN THE
INFORMATION CONTAINED IN THE PRIVATE PLACEMENT MEMORANDUM FOR THE CLASS
C CERTIFICATES, A COPY OF WHICH HAS BEEN DELIVERED TO IT.
(6) THE PURCHASER UNDERSTANDS THAT ALL INFORMATION
FURNISHED TO IT BY THE LLC, THE SERVICER OR THE INITIAL PURCHASER OR
REPRESENTATIVES OF THE LLC, THE SERVICER OR THE INITIAL PURCHASER IN
CONNECTION WITH ITS EVALUATION OF AN INVESTMENT IN THE CLASS C
CERTIFICATES WAS PROVIDED TO IT ON A CONFIDENTIAL BASIS AND IT AGREES
NOT TO DISCLOSE SUCH INFORMATION, IN WHOLE OR IN PART, TO ANY OTHER
PERSON.
(7) THE PURCHASER FURTHER REPRESENTS AND WARRANTS TO THE
LLC AND THE TRUSTEE THAT, EXCEPT TO THE EXTENT PERMITTED IN PARAGRAPHS
(8) AND (9) BELOW, THE PURCHASER: (I) IS PROPERLY CLASSIFIED AS A
"CORPORATION" AS DESCRIBED IN SECTION 7701(a)(3) OF THE CODE WHICH IS
CREATED OR ORGANIZED UNDER THE LAWS OF THE UNITED STATES, ANY STATE
THEREOF OR THE DISTRICT OF COLUMBIA, AND WILL NOT KNOWINGLY TAKE ANY
ACTION WHICH WILL CAUSE IT NOT TO BE SO CLASSIFIED; AND (II) IS NOT AN
S CORPORATION AS DESCRIBED IN SECTION 1361 OF THE CODE, AND WILL NOT
KNOWINGLY TAKE ANY ACTION WHICH WILL CAUSE IT TO BE SO CLASSIFIED.
(8) NO CLASS C CERTIFICATES SHALL BE TRANSFERRED OR SOLD
TO ANY GRANTOR TRUST, PARTNERSHIP OR S CORPORATION (EACH A
"PASS-THROUGH ENTITY") UNLESS SUCH ENTITY REPRESENTS THAT (I) NOT 25%
OR MORE (OR THAT AMOUNT WHICH THE INTERNAL REVENUE SERVICE (OR ANY
SUCCESSOR THERETO) MAY SUBSEQUENTLY INDICATE IS AN AMOUNT WHICH
PREVENTS TREATING DIRECT AND/OR INDIRECT OWNERS OF A PASS-THROUGH
ENTITY AS PARTNERS IN THE TRUST FOR PURPOSES OF DETERMINING WHETHER THE
TRUST IS A PUBLICLY TRADED PARTNERSHIP) OF THE VALUE OF THE ASSETS OF
THE PASS-THROUGH ENTITY IS ATTRIBUTABLE TO THE PASS-THROUGH ENTITY'S
OWNERSHIP INTEREST IN CERTIFICATES ISSUED BY THE TRUST OTHER THAN THE
CLASS A AND CLASS B CERTIFICATES AND (II) THE PASS-THROUGH ENTITY DOES
NOT SPECIALLY ALLOCATE TO ANY OF ITS BENEFICIARIES AMOUNTS RECEIVED IN
RESPECT OF CERTIFICATES ISSUED BY THE TRUST OTHER THAN CLASS A AND
CLASS B CERTIFICATES. ANY PURPORTED TRANSFER, ASSIGNMENT OR OTHER
CONVEYANCE (INCLUDING ANY PARTICIPATION) OF THE CLASS C CERTIFICATES IN
CONTRAVENTION OF THE IMMEDIATELY PRECEDING SENTENCE SHALL BE NULL AND
VOID AB INITIO AND THE PURPORTED TRANSFEROR SHALL CONTINUE TO BE
TREATED AS THE OWNER OF SUCH CLASS C CERTIFICATES AND THE
Ex. A-3
PURPORTED TRANSFEREE SHALL NOT BE RECOGNIZED AS A CLASS C
CERTIFICATEHOLDER BY THE LLC OR THE TRUSTEE.
(9) NO CLASS C CERTIFICATES SHALL BE TRANSFERRED OR SOLD
TO ANY FOREIGN INVESTOR ("FOREIGN INVESTOR") WHICH DOES NOT MAKE THE
REPRESENTATIONS CONTAINED IN ANNEX 1 TO THE REPRESENTATION LETTER
REQUIRED TO BE SIGNED BY A PURCHASER IN CONNECTION WITH THE PURCHASE OF
CLASS C CERTIFICATES. A FOREIGN INVESTOR FOR THIS PURPOSE INCLUDES ANY
PERSON WHO IS NOT: (1) A CITIZEN OR RESIDENT OF THE UNITED STATES; (2)
A CORPORATION OR PARTNERSHIP OR OTHER ENTITY TREATED FOR FEDERAL INCOME
TAX PURPOSES AS A CORPORATION OR A PARTNERSHIP CREATED OR ORGANIZED IN
OR UNDER THE LAWS OF THE UNITED STATES, ANY STATE THEREOF OR THE
DISTRICT OF COLUMBIA; (3) AN ESTATE, THE INCOME OF WHICH IS SUBJECT TO
UNITED STATES FEDERAL INCOME TAX, REGARDLESS OF ITS SOURCE; OR (4) A
TRUST IF A U.S. COURT IS ABLE TO EXERCISE PRIMARY SUPERVISION OVER THE
ADMINISTRATION OF THE TRUST AND ONE OR MORE U.S. PERSONS HAVE THE
AUTHORITY TO CONTROL ALL SUBSTANTIAL DECISIONS OF THE TRUST.
NOTWITHSTANDING THE PRECEDING SENTENCE, TO THE EXTENT PROVIDED IN
TREASURY REGULATIONS, CERTAIN TRUSTS IN EXISTENCE ON AUGUST 20, 1996,
AND TREATED AS UNITED STATES PERSONS UNDER THE CODE AND APPLICABLE
TREASURY REGULATIONS PRIOR TO THAT DATE, THAT ELECT TO CONTINUE TO BE
TREATED AS UNITED STATES PERSONS UNDER THE CODE OR APPLICABLE TREASURY
REGULATIONS WILL NOT BE FOREIGN INVESTORS.
(10) THE PURCHASER CONFIRMS THAT IS HAS NEITHER ACQUIRED
NOR WILL IT SELL, TRADE OR TRANSFER ANY INTEREST IN ANY CLASS C
CERTIFICATE OR CAUSE AN INTEREST IN ANY CLASS C CERTIFICATE TO BE
MARKETED ON OR THROUGH (I) AN "ESTABLISHED SECURITIES MARKET" WITHIN
THE MEANING OF SECTION 7704(b)(1) OF THE CODE AND ANY PROPOSED,
TEMPORARY OR FINAL TREASURY REGULATION THEREUNDER, INCLUDING, WITHOUT
LIMITATION, AN OVER-THE-COUNTER MARKET OR AN INTERDEALER QUOTATION
SYSTEM THAT REGULARLY DISSEMINATES FIRM BUY OR SELL QUOTATIONS OR (II)
"SECONDARY MARKET" OR "SUBSTANTIAL EQUIVALENT THEREOF" WITHIN THE
MEANING OF SECTION 7704(b)(2) OF THE CODE AND ANY PROPOSED, TEMPORARY
OR FINAL TREASURY REGULATION THEREUNDER, INCLUDING A MARKET WHEREIN
INTERESTS IN THE CLASS C CERTIFICATES ARE REGULARLY QUOTED BY ANY
PERSON MAKING A MARKET IN THOSE INTERESTS AND A MARKET WHEREIN ANY
PERSON REGULARLY MAKES AVAILABLE BID OR OFFER QUOTES WITH RESPECT TO
INTERESTS IN THE CLASS C CERTIFICATES AND STANDS READY TO EFFECT BUY OR
SELL TRANSACTIONS AT THE QUOTED PRICES FOR ITSELF OR ON BEHALF OF
OTHERS. ANY PURPORTED TRANSFER, ASSIGNMENT OR OTHER CONVEYANCE OF ANY
CLASS C CERTIFICATE IN
Ex. A-4
CONTRAVENTION OF THE FOREGOING COVENANT WILL BE NULL AND VOID AB INITIO
AND THE PURPORTED TRANSFEROR WILL CONTINUE TO BE TREATED AS THE HOLDER
OF SUCH CLASS C CERTIFICATE AND THE PURPORTED TRANSFEREE WILL NOT BE
RECOGNIZED AS A CLASS C CERTIFICATEHOLDER BY THE LLC, THE SERVICER OR
THE TRUSTEE.
(11) NOTWITHSTANDING THE FOREGOING, AT NO TIME SHALL THE
AGGREGATE NUMBER OF PRIVATE HOLDERS EXCEED 100. ANY PURPORTED TRANSFER,
ASSIGNMENT OR OTHER CONVEYANCE (INCLUDING ANY PARTICIPATION) OF THE
CLASS C CERTIFICATES IN CONTRAVENTION OF THE IMMEDIATELY PRECEDING
SENTENCE WILL BE NULL AND VOID AB INITIO AND THE PURPORTED TRANSFEROR
WILL CONTINUE TO BE TREATED AS THE HOLDER OF THOSE CLASS C CERTIFICATES
AND THE PURPORTED TRANSFEREE WILL NOT BE RECOGNIZED AS A CLASS C
CERTIFICATEHOLDER BY THE LLC, THE SERVICER OR THE TRUSTEE. "PRIVATE
HOLDER" MEANS EACH HOLDER OF A RIGHT TO RECEIVE INTEREST OR PRINCIPAL
IN RESPECT OF ANY DIRECT OR INDIRECT INTEREST IN THE TRUST, INCLUDING
ANY FINANCIAL INSTRUMENT OR CONTRACT THE VALUE OF WHICH IS DETERMINED
IN WHOLE OR PART BY REFERENCE TO THE TRUST (INCLUDING THE TRUST'S
ASSETS, INCOME OF THE TRUST OR PAYMENTS MADE BY THE TRUST), EXCLUDING
ANY INTEREST IN THE TRUST REPRESENTED BY ANY SERIES OR CLASS OF
CERTIFICATES OR ANY OTHER INTERESTS AS TO WHICH THE TRUSTEE HAS
RECEIVED AN OPINION OF COUNSEL TO THE EFFECT THAT THAT SERIES, CLASS OR
OTHER INTEREST WILL BE TREATED AS DEBT OR OTHERWISE NOT AS AN EQUITY
INTEREST IN EITHER THE TRUST OR THE RECEIVABLES FOR FEDERAL INCOME TAX
PURPOSES (UNLESS THAT INTEREST IS CONVERTIBLE OR EXCHANGEABLE INTO AN
INTEREST IN THE TRUST OR THE TRUST'S INCOME OR THAT INTEREST PROVIDES
FOR PAYMENT OF EQUIVALENT VALUE). NOTWITHSTANDING THE IMMEDIATELY
PRECEDING SENTENCE, "PRIVATE HOLDER" WILL ALSO INCLUDE ANY OTHER PERSON
THAT THE LLC DETERMINES IS A "PARTNER" WITHIN THE MEANING OF SECTION
1.7704-1(h)(1)(ii) OF THE U.S. TREASURY REGULATIONS (INCLUDING BY
REASON OF SECTION 1.7704-1(h)(3)) OR ANY SUCCESSOR PROVISION OF LAW.
ANY PERSON HOLDING MORE THAN ONE INTEREST IN THE TRUST, EACH OF WHICH
SEPARATELY WOULD CAUSE THAT PERSON TO BE A PRIVATE HOLDER, WILL BE
TREATED AS A SINGLE PRIVATE HOLDER. EACH HOLDER OF AN INTEREST IN A
PRIVATE HOLDER WHICH IS A PARTNERSHIP, S CORPORATION OR A GRANTOR TRUST
UNDER THE CODE WILL BE TREATED AS A PRIVATE HOLDER UNLESS EXCEPTED WITH
THE CONSENT OF THE LLC (WHICH CONSENT WILL BE BASED ON AN OPINION OF
COUNSEL GENERALLY TO THE EFFECT THAT THE ACTION TAKEN PURSUANT TO THE
CONSENT WILL NOT CAUSE THE TRUST TO BECOME A PUBLICLY TRADED
PARTNERSHIP TREATED AS A CORPORATION). NOTWITHSTANDING ANYTHING TO THE
CONTRARY HEREIN, EACH CLASS C CERTIFICATEHOLDER, AND EACH HOLDER OF ANY
Ex. A-5
CLASS OF ANY SERIES IF WITH RESPECT TO SUCH CLASS NO OPINION IS
DELIVERED TO THE EFFECT THAT THE CERTIFICATES OF SUCH CLASS WILL BE
TREATED AS DEBT FOR FEDERAL INCOME TAX PURPOSES, WILL BE CONSIDERED TO
BE A PRIVATE HOLDER.
(12) THE CLASS C CERTIFICATES WILL BE ISSUED IN
DENOMINATIONS OF $1,000,000 AND INTEGRAL MULTIPLES OF $100,000 IN
EXCESS THEREOF. NO CLASS C CERTIFICATE MAY BE SUBDIVIDED UPON TRANSFER
OR EXCHANGE IN A MANNER SO THAT THE RESULTING CLASS C CERTIFICATE IF IT
HAD BEEN SOLD IN THE ORIGINAL OFFERING WOULD HAVE HAD AN INITIAL
OFFERING PRICE OF LESS THAN $1,000,000 AND ANY PURPORTED TRANSFER,
ASSIGNMENT OR CONVEYANCE OF A CLASS C CERTIFICATE IN CONTRAVENTION OF
THE IMMEDIATELY PRECEDING SENTENCE WILL BE VOID AB INITIO AND THE
PURPORTED TRANSFEROR WILL CONTINUE TO BE TREATED AS THE OWNER OF THAT
CLASS C CERTIFICATE FOR ALL PURPOSES.
(13) WITHOUT LIMITING THE FOREGOING, NO TRANSFER, PLEDGE,
ASSIGNMENT OR CONVEYANCE MAY BE MADE TO ANY ONE PERSON FOR CLASS C
CERTIFICATES WITH A FACE AMOUNT OF LESS THAN $1,000,000 AND, IN THE
CASE OF ANY PERSON ACTING ON BEHALF OF ONE OR MORE THIRD PARTIES (OTHER
THAN A BANK (AS DEFINED IN SECTION 3(a)(2) OF THE SECURITIES ACT)
ACTING IN ITS FIDUCIARY CAPACITY), FOR CLASS C CERTIFICATES WITH A FACE
AMOUNT OF LESS THAN THAT AMOUNT FOR EACH OF THOSE THIRD PARTIES. ANY
PURPORTED TRANSFER, ASSIGNMENT OR CONVEYANCE IN CONTRAVENTION OF THE
IMMEDIATELY PRECEDING SENTENCE WILL BE VOID AB INITIO AND THE PURPORTED
TRANSFEROR WILL CONTINUE TO BE TREATED AS THE OWNER OF THE CLASS C
CERTIFICATES FOR ALL PURPOSES. NEITHER THE LLC NOR THE TRUSTEE WILL BE
OBLIGATED TO REGISTER THE CLASS C CERTIFICATES UNDER THE SECURITIES
ACT, QUALIFY THE CLASS C CERTIFICATES UNDER THE SECURITIES LAWS OF ANY
STATE OR PROVIDE REGISTRATION RIGHTS TO ANY PURCHASER OR HOLDER
THEREOF.
(14) NO TRANSFER, ASSIGNMENT OR CONVEYANCE OF A CLASS C
CERTIFICATE WILL BE EFFECTIVE UNLESS THE LLC AND THE TRUSTEE SHALL HAVE
RECEIVED A LETTER, SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE SERIES
SUPPLEMENT, FROM THE TRANSFEREE, ASSIGNEE OR RECIPIENT OF THE
CONVEYANCE.
(15) IF THE PURCHASER OF THE CLASS C CERTIFICATE IS A
FOREIGN INVESTOR, THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ANNEX
1 TO THE FORM OF LETTER IN EXHIBIT C TO THE SERIES SUPPLEMENT REQUIRED
TO BE SIGNED BY FOREIGN INVESTORS PURCHASING CLASS C CERTIFICATES ARE
INCORPORATED BY REFERENCE.]
Ex. A-6
$___________ FLOATING RATE ASSET BACKED CERTIFICATES,
SERIES 2003-2, CLASS [ ]
evidencing a fractional undivided interest in certain
assets of the
DISTRIBUTION FINANCIAL SERVICES FLOORPLAN MASTER TRUST.
This certificate ("Certificate") does not represent any interest in, or
obligation of, CDF Financing, L.L.C. ("LLC" or the "Transferor"), GE Commercial
Distribution Finance Corporation ("CDF"), General Electric Capital Corporation
or any affiliate thereof.
This certifies that [ ] (the "Class [ ] Certificateholder"), is the
registered owner of a fractional undivided interest in assets of the
Distribution Financial Services Floorplan Master Trust (the "Trust") created
pursuant to an Amended and Restated Pooling and Servicing Agreement, dated as of
April 1, 2000 (as amended, the "P&S"), as supplemented by the Series 2003-2
Supplement dated as of April 1, 2003 (the "Series 2003-2 Supplement" or the
"Series Supplement"), among the LLC, as Transferor, CDF, as Servicer, and
Wilmington Trust Company, as successor to The Chase Manhattan Bank, as trustee
(the "Trustee"). The P&S and the Series 2003-2 Supplement are collectively
referred to herein as the "Pooling and Servicing Agreement."
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
THIS CERTIFICATE SHALL BE 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).
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement to which, as
amended and supplemented from time to time, the Certificateholder by virtue of
the acceptance hereof assents and is bound. Although a summary of certain
provisions of the Pooling and Servicing Agreement is set forth herein, this
Certificate does not purport to summarize the Pooling and Servicing Agreement
and reference is made to the Pooling and Servicing Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
In the event of any conflict or inconsistency between this Certificate and the
Pooling and Servicing Agreement, the Pooling and Servicing Agreement shall
control in all respects. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to them in the Pooling and Servicing
Agreement.
The Transferor has entered into the Pooling and Servicing Agreement and
the Series 2003-2 Certificates have been (or shall be) issued with the intention
that the Series 2003-2 Certificates shall qualify as indebtedness of the LLC
secured by the Receivables for Federal
Ex. A-7
income taxes, state and local income, single business and franchise taxes
(imposed on or measured by income) and any other taxes imposed on or measured by
income. The Transferor, each Beneficiary and each Certificateholder and
Certificate Owner, by the acceptance of its Certificate or Book-Entry
Certificate, as applicable, agrees to treat such Series 2003-2 Certificate as
indebtedness of the Transferor secured by the Receivables for Federal income
taxes, state and local income, single business and franchise taxes (imposed on
or measured by income) and any other taxes imposed on or measured by income.
[FOR CLASS B AND CLASS C CERTIFICATES, INSERT: THIS CERTIFICATE IS
SUBORDINATE TO THE CLASS A [AND CLASS B] CERTIFICATES IN ACCORDANCE WITH THE
SERIES SUPPLEMENT].
Ex. A-8
IN WITNESS WHEREOF, the Transferor has caused this Certificate to be
duly executed.
CDF FINANCING, L.L.C.
By:______________________________________
Name:_________________________________
Title: Manager
Dated:
Ex. A-9
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Pooling and
Servicing Agreement.
WILMINGTON TRUST COMPANY,
as Trustee
By Deutsche Bank Trust Company Americas
(f/k/a Bankers Trust Company), as Agent
By:_____________________________________
Authorized Officer
Dated:
Ex. A-10
ASSIGNMENT
Social Security or other identifying number of assignee
__________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
(name and address of assignee)
the within certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints ___________, attorney, to transfer said certificate on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated:_________________________________________________________________ *
Signature Guaranteed:
-------------
(*) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the within Certificate in every particular,
without alteration, enlargement or any change whatsoever.
Ex. A-11
EXHIBIT B
PAYMENT DATE STATEMENT
(a) The aggregate amount of Collections, the aggregate amount of
Non-Principal Collections and the aggregate amount of Principal Collections
processed during the immediately preceding Collection Period, and the Pool
Balance as of the end of such Collection Period;
(b) the Floating Allocation Percentage, the Principal Allocation
Percentage and the Series 2003-2 Allocation Percentage relating to such
Collection Period;
(c) the total amount, if any, distributed on the Series 2003-2
Certificates;
(d) the amount of such payment allocable to principal on the Class
A Certificates, the Class B Certificates and the Class C Certificates;
(e) the amount of such payment allocable to interest on the Class
A Certificates, the Class B Certificates and the Class C Certificates;
(f) the Investor Default Amount for the applicable Payment Date;
(g) the Deficiency Amount, if any, for the preceding Collection
Period;
(h) the amount of the Class A, Class B and Class C Investor
Charge-Offs and the amounts of reimbursements thereof for the preceding
Collection Period;
(i) the amount of the Monthly Servicing Fee for the preceding
Collection Period;
(j) the Class A Invested Amount, the Class B Invested Amount, the
Class C Invested Amount, the Excess Funding Account balance and the outstanding
principal balance of the Class A, Class B and Class C Certificates for such
Payment Date (after giving effect to all payments which shall occur on such
Payment Date);
(k) the Controlled Deposit Amount, if any;
(l) the Class A Pool Factor, Class B Pool Factor and Class C Pool
Factor;
(m) LIBOR for the next Interest Period;
(n) the Reserve Fund balance with respect to the current
Determination Date;
(o) the Principal Funding Account balance, the Interest Funding
Account balance, and the Collection Account balance with respect to the current
Payment Date;
(p) the Servicer Advance, if any, for the current Payment Date and
reimbursement of any Servicer Advance;
(q) any elective or "deemed" waiver of the Monthly Servicing Fee
for the current Payment Date;
Ex. B-1
(r) if a Dealer Overconcentration exists, (i) the Unconcentrated
Pool Balance, (ii) the aggregate amount of such Dealer Overconcentration, (iii)
the applicable Unconcentrated Percentage and Overconcentrated Percentage, and
(iv) the portion of Collections, Miscellaneous Payments and the Defaulted Amount
allocated to the Dealer Overconcentration Series and other Series;
(s) the Class A Monthly Interest;
(t) the Class B Monthly Interest;
(u) the Class C Monthly Interest;
(v) the Class A Additional Interest;
(w) the Class B Additional Interest;
(x) the Class C Additional Interest;
(y) the Certificateholders' Monthly Servicing Fee;
(z) the Reserve Fund Deposit Amount;
(aa) the Investor Default Amount;
(bb) the amount calculated pursuant to Section 4.6(b);
(cc) the amount calculated pursuant to Section 4.7(a)(i);
(dd) the amount calculated pursuant to Section 4.8;
(ee) the amount calculated pursuant to Section 4.10; and
(ff) Miscellaneous Payments, including Adjustment Payments,
Transfer Deposit Amounts and Unallocated Principal Collections.
Ex. B-2
EXHIBIT C
FORM OF REPRESENTATION LETTER
[Date]
Wilmington Trust Company, as Trustee
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administrator
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
CDF Financing, L.L.C.
000 Xxxxxxxxx Xxxxxx Xxxxx
Xx. Xxxxx, XX 00000
Attention: Manager
Re: Distribution Financial Services Floorplan Master Trust, Series
2003-2, Class C Certificates
Ladies and Gentlemen:
This letter is being delivered by the undersigned (the "Purchaser")
pursuant to Section 9.5 of the Series 2003-2 Supplement dated as of April 1,
2003 (as amended, amended and restated or otherwise modified from time to time,
the "Supplement") among CDF Financing, L.L.C., as Transferor ("LLC"), GE
Commercial Distribution Finance Corporation, as Servicer, and Wilmington Trust
Company, as Trustee, in connection with the Purchaser's acquisition of a Class C
Certificate. Capitalized terms defined in (or by reference in) the Supplement
and used herein without definition shall have the meanings defined in (or by
reference in) the Supplement. The Purchaser hereby represents and warrants to
the Trustee and the LLC, and hereby agrees with the Trustee and the LLC, and the
Purchaser hereby acknowledges, as follows:
(1) The Class C Certificates have not been and will not
be registered under the Securities Act or the securities laws of any
jurisdiction. Consequently, the Class C Certificates are not
transferable other than pursuant to an exemption from the registration
requirements of the Securities Act and satisfaction of certain
provisions of the Supplement.
(2) The Purchaser is a "qualified institutional buyer"
("QIB") within the meaning of Rule 144A under the Securities Act ("Rule
144A") and is purchasing for its own account (and not for the account
of others) or as a fiduciary or agent for others (which others also are
QIBs and have executed a letter substantially in the form of this
letter and have delivered a copy of such letter to the LLC and the
Trustee). The
Ex. C-1
Purchaser is aware that it (or any account for which it is purchasing)
may be required to bear the economic risk of an investment in the Class
C Certificates for an indefinite period, and it (or such account) is
able to bear such risk for an indefinite period.
(3) No sale, pledge or other transfer of any Class C
Certificate may be made by any Person unless (a) either (i) such sale,
pledge or other transfer is made to the LLC, or (ii) so long as the
Class C Certificates are eligible for resale pursuant to Rule 144A
under the Securities Act, such sale, pledge or other transfer is made
to a Person whom the transferor reasonably believes after due inquiry
is a QIB acting for its own account (and not for the account of others)
or as a fiduciary or agent for others (which others also are QIBs) to
whom notice is given that the sale, pledge or transfer is being made in
reliance on Rule 144A.
(4) The Class C Certificates may not be acquired by or
for the account of (i) an "employee benefit plan" (as defined in
section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")), that is subject to the provisions of Title I of
ERISA, (ii) a plan described in Section 4975(e)(1) of the Code or (iii)
any entity whose underlying assets include plan assets by reason of a
plan's investment in the entity. By accepting and holding a Class C
Certificate, the holder thereof shall be deemed to have represented and
warranted that it is not within any of the categories described in the
preceding sentence.
(5) The Purchaser acknowledges that it has been afforded
an opportunity to request from the LLC, the Servicer and Deutsche Bank
Securities Inc. ("DBSI") or X.X. Xxxxxx Securities Inc. ("JPMSI"; JPMSI
or DBSI, as applicable, may be referred to as the "Initial Purchaser"),
and has received and reviewed, all information which it has deemed
necessary in connection with its decision to purchase the Class C
Certificates. The Purchaser acknowledges that none of the LLC, the
Servicer, the Initial Purchaser nor any of their respective affiliates
or any Person representing any of them has made any representation to
it with respect to any information relating to the offering or sale of
the Class C Certificates, other than the information contained in the
private placement memorandum for the Class C Certificates, a copy of
which has been delivered to it.
(6) The Purchaser understands that all information
furnished to it by the LLC, the Servicer or the Initial Purchaser or
representatives of the LLC, the Servicer or the Initial Purchaser in
connection with its evaluation of an investment in the Class C
Certificates was provided to it on a confidential basis and it agrees
not to disclose such information, in whole or in part, to any other
Person.
(7) The Purchaser further represents and warrants to the
LLC and the Trustee that, except to the extent permitted in paragraphs
(8) and (9) below, the Purchaser: (i) is properly classified as a
"corporation" as described in Section 7701(a)(3) of the Code which is
created or organized under the laws of the United States, any State
thereof or the District of Columbia, and will not knowingly take any
action which will cause it not to be so classified; and (ii) is not an
S corporation as described in Section 1361 of the Code (an "S
Corporation"), and will not knowingly take any action which will cause
it to be so classified.
Ex. C-2
(8) No Class C Certificates shall be transferred or sold
to any grantor trust, partnership or S Corporation (each a
"Pass-Through Entity") unless such entity represents that (i) not 25%
or more (or that amount which the Internal Revenue Service (or any
successor thereto) may subsequently indicate is an amount which
prevents treating direct and/or indirect owners of a Pass-Through
Entity as partners in the Trust for purposes of determining whether the
Trust is a publicly traded partnership) of the value of the assets of
the Pass-Through Entity is attributable to the Pass-Through Entity's
ownership interest in certificates issued by the Trust other than the
Class A and Class B Certificates and (ii) the Pass-Through Entity does
not specially allocate to any of its beneficiaries amounts received in
respect of certificates issued by the Trust other than Class A and
Class B Certificates. Any purported transfer, assignment or other
conveyance (including any participation) of the Class C Certificates in
contravention of the immediately preceding sentence shall be null and
void ab initio and the purported transferor shall continue to be
treated as the owner of such Class C Certificates and the purported
transferee shall not be recognized as a Class C Certificateholder by
the LLC or the Trustee.
(9) No Class C Certificates shall be transferred or sold
to any foreign investor ("Foreign Investor") which does not make the
representations contained in Annex 1 to the representation letter
required to be signed by a purchaser in connection with the purchase of
Class C Certificates. A Foreign Investor for this purpose includes any
person who is not: (1) a citizen or resident of the United States; (2)
a corporation or partnership or other entity treated for Federal income
tax purposes as a corporation or a partnership created or organized in
or under the laws of the United States, any State thereof or the
District of Columbia; (3) an estate, the income of which is subject to
United States Federal income tax, regardless of its source; or (4) a
trust if a U.S. court is able to exercise primary supervision over the
administration of the trust and one or more U.S. persons have the
authority to control all substantial decisions of the trust.
Notwithstanding the preceding sentence, to the extent provided in
Treasury regulations, certain trusts in existence on August 20, 1996,
and treated as United States persons under the Code and applicable
Treasury regulations prior to that date, that elect to continue to be
treated as United States persons under the Code or applicable Treasury
regulations will not be Foreign Investors.
(10) The Purchaser confirms that is has neither acquired
nor will it sell, trade or transfer any interest in any Class C
Certificate or cause an interest in any Class C Certificate to be
marketed on or through (i) an "established securities market" within
the meaning of Section 7704(b)(1) of the Code and any proposed,
temporary or final treasury regulation thereunder, including, without
limitation, an over-the-counter market or an interdealer quotation
system that regularly disseminates firm buy or sell quotations or (ii)
"secondary market" or "substantial equivalent thereof" within the
meaning of Section 7704(b)(2) of the Code and any proposed, temporary
or final treasury regulation thereunder, including a market wherein
interests in the Class C Certificates are regularly quoted by any
person making a market in those interests and a market wherein any
person regularly makes available bid or offer quotes with respect to
interests in the Class C Certificates and stands ready to effect buy or
sell transactions at the quoted prices for itself or on behalf of
others. Any purported transfer, assignment or other conveyance of any
Class C Certificate in contravention of the foregoing covenant will be
null and
Ex. C-3
void ab initio and the purported transferor will continue to be treated
as the holder of such Class C Certificate and the purported transferee
will not be recognized as a Class C Certificateholder by the LLC, the
Servicer or the Trustee.
(11) Notwithstanding the foregoing, at no time shall the
aggregate number of Private Holders exceed 100. Any purported transfer,
assignment or other conveyance (including any participation) of the
Class C Certificates in contravention of the immediately preceding
sentence will be null and void ab initio and the purported transferor
will continue to be treated as the holder of those Class C Certificates
and the purported transferee will not be recognized as a Class C
Certificateholder by the LLC, the Servicer or the Trustee. "Private
Holder" means each holder of a right to receive interest or principal
in respect of any direct or indirect interest in the Trust, including
any financial instrument or contract the value of which is determined
in whole or part by reference to the Trust (including the Trust's
assets, income of the Trust or payments made by the Trust), excluding
any interest in the Trust represented by any series or class of
certificates or any other interests as to which the Trustee has
received an opinion of counsel to the effect that that series, class or
other interest will be treated as debt or otherwise not as an equity
interest in either the Trust or the Receivables for federal income tax
purposes (unless that interest is convertible or exchangeable into an
interest in the Trust or the Trust's income or that interest provides
for payment of equivalent value). Notwithstanding the immediately
preceding sentence, "Private Holder" will also include any other person
that the LLC determines is a "partner" within the meaning of Section
1.7704-1(h)(1)(ii) of the U.S. Treasury Regulations (including by
reason of Section 1.7704-1(h)(3)) or any successor provision of law.
Any person holding more than one interest in the Trust, each of which
separately would cause that person to be a Private Holder, will be
treated as a single Private Holder. Each holder of an interest in a
Private Holder which is a partnership, S corporation or a grantor trust
under the Code will be treated as a Private Holder unless excepted with
the consent of the LLC (which consent will be based on an opinion of
counsel generally to the effect that the action taken pursuant to the
consent will not cause the Trust to become a publicly traded
partnership treated as a corporation). Notwithstanding anything to the
contrary herein, each Class C Certificateholder, and each holder of any
Class of any Series if with respect to such Class no opinion is
delivered to the effect that the Certificates of such Class will be
treated as debt for federal income tax purposes, will be considered to
be a Private Holder.
(12) The Class C Certificates will be issued in
denominations of $1,000,000 and integral multiples of $100,000 in
excess thereof. No Class C Certificate may be subdivided upon transfer
or exchange in a manner so that the resulting Class C Certificate if it
had been sold in the original offering would have had an initial
offering price of less than $1,000,000 and any purported transfer,
assignment or conveyance of a Class C Certificate in contravention of
the immediately preceding sentence will be void ab initio and the
purported transferor will continue to be treated as the owner of that
Class C Certificate for all purposes.
(13) Without limiting the foregoing, no transfer, pledge,
assignment or conveyance may be made to any one Person for Class C
Certificates with a face amount
Ex. C-4
of less than $1,000,000 and, in the case of any Person acting on behalf
of one or more third parties (other than a bank (as defined in Section
3(a)(2) of the Securities Act) acting in its fiduciary capacity), for
Class C Certificates with a face amount of less than that amount for
each of those third parties. Any purported transfer, assignment or
conveyance in contravention of the immediately preceding sentence will
be void ab initio and the purported transferor will continue to be
treated as the owner of the Class C Certificates for all purposes.
Neither the LLC nor the Trustee will be obligated to register the Class
C Certificates under the Securities Act, qualify the Class C
Certificates under the securities laws of any state or provide
registration rights to any purchaser or holder thereof.
(14) No transfer, assignment or conveyance of a Class C
Certificate will be effective unless the LLC and the Trustee shall have
received a letter, substantially in the form of this letter, from the
transferee, assignee or recipient of the conveyance.
(15) The Class C Certificates will bear legends
substantially to the effect of the matters contemplated by paragraphs
(1) through (14) above, unless the LLC determines otherwise in
accordance with applicable law.
(16) This letter has been duly executed and delivered by
the Purchaser and constitutes the legal, valid and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable
principles affecting the enforcement of creditors' rights generally and
general principles of equity.
(17) If the Purchaser is a Foreign Investor, the
representations and warranties contained in Annex 1 hereto are
incorporated herein by reference.
IN WITNESS WHEREOF, the Purchaser has signed this letter as of the date
first above written.
[NAME OF PURCHASER]
By:________________________________________
Name:
Title:
Ex. C-5
Annex 1
(18) The Purchaser's long term debt is rated investment
grade by an internationally recognized rating agency.
(19) The Purchaser agrees that, prior to the date on which
the first interest payment under the Supplement is due thereto, it
shall deliver to the LLC, the Servicer and the Trustee (i) two duly
completed copies of the United States Internal Revenue Service Form
W-8ECI or successor applicable form and (ii) an Internal Revenue
Service Form W-8 or successor applicable form. The Purchaser also
agrees to deliver to the LLC, the Servicer and the Trustee two further
copies of the said Form W-8ECI and Form W-8, or successor applicable
forms or other manner of certification, as the case may be, on or
before the date that any such form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent form
previously delivered by it and such extensions or renewals thereof as
may reasonably be requested by the Servicer, unless in any such case an
event (including, without limitation, any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery
would otherwise be required which renders all such forms inapplicable
or which would prevent the Purchaser from duly completing and
delivering any such form with respect to it and the Purchaser so
advises the Servicer, the Trustee and the LLC.
(20) Notwithstanding anything to the contrary in this
letter, the Purchaser agrees that, upon written notice by the Servicer
to the Purchaser in accordance with paragraph (22) below that the U.S.
Internal Revenue Service ("IRS") has determined that amounts payable
under the Supplement are subject to withholding tax under Section 1446
of the Code (a "Withholding Tax" and such determination being a
"Withholding Event"):
a. The Purchaser shall, for tax years for which
the Purchaser has already filed, or was legally required to
file, U.S. federal income tax returns (each a "Prior Tax
Year") prior to notice of such Withholding Event in accordance
with paragraph (22) below, (A) provide to the LLC a signed
officer's certificate of the Purchaser stating that amounts
paid under the Supplement have been included in the
Purchaser's U.S. federal income tax returns for each such
Prior Tax Year, and (B) upon the written request of the LLC,
which request shall provide assurances of confidentiality of
information reasonably satisfactory to the Purchaser, provide
all information in the Purchaser's possession or control to
the LLC or, at the Purchaser's option, to the IRS directly
required by the IRS in support of the application of Section
1463 of the Code for each such Prior Tax Year to such
Withholding Tax.
b. If Section 1463 of the Code is not
applicable for any Prior Tax Year of the Purchaser because the
Purchaser did not include amounts payable under the Supplement
in its U.S. federal income tax return for such Prior Tax Year
and properly pay any federal income tax due on such amounts or
failed to file a U.S. federal income return with respect to
such Prior Tax Year, the Purchaser shall (at the Purchaser's
option) either (x) amend or file, as the case may be, its U.S.
federal income tax return for such Prior Tax Year to properly
Ex. C-6
include amounts paid under the Supplement during such Prior
Tax Year, pay any federal income tax due on such amounts (and
interest and penalties thereon if required) and comply with
the provisions of clause (b) of this paragraph (20) with
respect to such Prior Tax Year or (y) pay to the LLC or the
Trust, as applicable, the amount of any Withholding Tax (and
any interest or penalties thereon) paid or payable by the LLC
or the Trust to the IRS (which payment by the Purchaser, if
the applicable Withholding Tax has not theretofore been
remitted to the IRS, shall be paid over by the LLC or the
Trust, as applicable, to the IRS for application to such
Withholding Tax) on payments under the Supplement during such
Prior Tax Year which were not included on the Purchaser's U.S.
federal income tax return or with respect to which the
Purchaser did not so properly pay federal income tax.
c. No increased amounts shall be payable to the
Purchaser if any taxes are required to be withheld or deducted
from any amount payable to the Purchaser with respect to any
Withholding Tax unless, due to a change in law, treaty or
regulation (or in the interpretation or administration thereof
by any governmental or regulatory agency or body charged with
the administration or interpretation thereof), the credit for
U.S. federal income tax purposes available to the Purchaser
under the Code (as in effect on the Closing Date) resulting
from such Withholding Tax is discontinued or substantially
reduced.
In connection with remitting to the IRS any required amount of Withholding Tax
on account of the Purchaser for any tax year subsequent to the last Prior Tax
Year, the amount thereof may be charged first against the amount otherwise
payable to the Purchaser pursuant to the Supplement (a "Payable Amount") for the
Payment Date immediately preceding such remittance and then against each
successive Payable Amount for subsequent Payment Dates to the extent required to
aggregate such Withholding Tax amount.
(21) The Purchaser agrees that it shall use reasonable
efforts to take any actions that shall avoid any Withholding Tax or the
need for, or reduce the amount of, any amounts payable to it for all
present and future taxes, levies, imposts, duties, deductions,
withholdings, fees, liabilities and similar charges ("Taxes"); provided
that the Purchaser shall not be obligated to take any such actions that
would, in the reasonable opinion of the Purchaser, be unlawful or
otherwise disadvantageous to the Purchaser or would result in any
unreimbursed cost or expense to the Purchaser, which cost and expense
would not have been incurred but for such actions. If any amounts
payable to the Purchaser for Taxes (referred to above) shall not be
eliminated or reduced by the actions taken by the Purchaser and payment
thereof under the Supplement shall not be waived by the Purchaser
within 15 days after the LLC shall have given written notice to the
Purchaser of its intent to replace the Purchaser, the LLC shall have
the right to (A) request in writing that the Purchaser use reasonable
efforts, and the Purchaser hereby agrees upon receipt of such request
to use its reasonable efforts, to obtain a replacement investor for the
Class C Certificates owned by the Purchaser, which replacement investor
is reasonably acceptable to the LLC, or (B) itself seek to replace the
Purchaser with a new investor which is reasonably acceptable to the
LLC; provided that the Purchaser shall not be replaced with a new
investor until the Purchaser has been repaid in full all amounts owed
to it pursuant to the Supplement. Subject to the provisions of this
paragraph (21),
Ex. C-7
the Purchaser hereby agrees to assign all of its rights and obligations
with respect to the Class C Certificates (and with respect to the
Supplement) to the replacement investor pursuant to an agreement in
form and substance reasonably acceptable to the Purchaser, the LLC, the
Trustee and the replacement investor, subject to payment in full of all
amounts due to the Purchaser under the Supplement.
(22) The Purchaser's address for notice is:
________________________
________________________
________________________
Ex. C-8
SCHEDULE 1
Name of Series
2003-2 Account Account No.
-------------- -----------
Interest Funding Account 36690
Principal Funding Account 36691
Excess Funding Account 36692
Reserve Fund 36689
All of the foregoing accounts are maintained at Deutsche Bank Trust Company
Americas.
Sch. 1-1
SCHEDULE 2
Initial Principal Amounts of the Series 2003-2 Certificates
Class Initial Principal Amount
----- ------------------------
Class A $ 955,000,000
Class B $ 30,000,000
Class C $ 15,000,000
Sch. 2-1
