Exhibit 4.1
SECOND OMNIBUS AMENDMENT TO
AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
AND SUPPLEMENTS
THIS SECOND AMENDMENT TO AMENDED AND RESTATED POOLING AND SERVICING
AGREEMENT AND SUPPLEMENTS, dated as of as of April 1, 2003 (this "Amendment"),
is among GE Commercial Distribution Finance Corporation ("CDF"), a Nevada
corporation (formerly known as Deutsche Financial Services Corporation), as
Servicer, Wilmington Trust Company ("WTC") (successor to The Chase Manhattan
Bank), as Trustee, and CDF Financing, L.L.C. ("LLC"), a Delaware limited
liability company.
BACKGROUND
The parties are parties to the following agreements:
1. the Amended and Restated Pooling and Servicing
Agreement, dated as of April 1, 2000, as amended (as so amended, the
"PSA") among the LLC, CDF, as Servicer, and WTC, as Trustee;
2. the Series 2000-2 Supplement, dated as of April 1,
2000, as amended (as so amended, the "Series 2000-2 Supplement"), among
the LLC, CDF, as Servicer, and WTC, as Trustee; and
3. the Series 2000-4 Supplement, dated as of July 1,
2000, as amended (as so amended, the "Series 2000-4 Supplement"); the
Series 2000-2 Supplement and the Series 2000-4 Supplement may be
referred to collectively as the "Supplements"; the Supplements and the
PSA may be referred to collectively as the "Agreements" and
individually as an "Agreement"), among the LLC, CDF, as Servicer, and
WTC, as Trustee.
The parties hereto desire to amend each of the Agreements as set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Definitions. Capitalized terms defined in an Agreement and
used but not otherwise defined herein have the meanings given to them in such
Agreement.
SECTION 2. Section 1.1 of the PSA.
(a) Section 1.1 of the PSA is hereby amended by amending the
following defined terms to read as follows:
"Dealer Overconcentration" shall be determined by the Servicer
on each Determination Date. A Dealer Overconcentration shall
exist with respect to a Dealer (an "Overconcentrated Dealer")
if the aggregate amount of the Principal Receivables owed by
such Dealer exceeds the applicable Dealer Concentration Limit.
"Dealer Concentration Limit" is a dollar amount calculated as
a percentage of the Pool Balance as of the end of each
Collection Period (the "Concentration Limit Percentage"). If
the Dealer is among the eight Dealers owing the largest amount
of Principal Receivables as of the end of a Collection Period
(the "Top 8 Dealers"), the Concentration Limit Percentage is
currently two and one-half percent (2.5%). If the Dealer is
not among the Top 8 Dealers, the Concentration Limit
Percentage is currently two percent (2%). The Concentration
Limit Percentage for the Top 8 Dealers, as well as the
Concentration Limit Percentage for the other Dealers, may be
increased or decreased from time to time by the Transferor
upon notice to the Trustee and the Servicer without the
consent of any Investor Certificateholder if the Rating Agency
Condition has been satisfied in connection with that increase
or decrease. For purposes of the definitions of Dealer
Overconcentration, Overconcentrated Dealer and Top 8 Dealers,
a Dealer and all of its Affiliates that are Dealers shall be
considered to be a single Dealer. For so long as a Dealer
Overconcentration exists, allocations of Principal
Collections, Non-Principal Collections, Defaulted Amounts and
Miscellaneous Payments related to an Overconcentrated Dealer
shall be allocated in accordance with Section 4.5.
"Manufacturer Overconcentration" on any Determination Date
shall mean, with respect to all Accounts covered by a
Floorplan Agreement with the same Manufacturer as obligor, the
excess of (a) the aggregate of all amounts of Principal
Receivables in such Accounts on the last day of the Collection
Period immediately preceding such Determination Date that are
covered by such Floorplan Agreement over (b) 15% of the Pool
Balance on the last day of such immediately preceding
Collection Period (in the case of each of the Manufacturers
that is among the three Manufacturers which are parties to
Floorplan Agreements covering the largest aggregate amounts of
Principal Receivables) or 10% of the Pool Balance on the last
day of such immediately preceding Collection Period (in the
case of Manufacturers other than such top three Manufacturers
(or, in each case, if the Rating Agency Condition is
satisfied, such larger percentage of such Pool Balance as is
stated in the notice from each applicable Rating Agency in
connection with the satisfaction of such Rating Agency
Condition).
"Net Receivables Rate" shall mean, with respect to a Payment
Date and unless otherwise specified for a Series in the
related Supplement, (i) the weighted average of the interest
rates borne by the Receivables during the second Collection
Period preceding such Payment Date (interest payments on the
Receivables at such rates being due and payable in the
Collection Period preceding such Payment Date) plus (ii) the
product of (x) the Monthly Payment Rate for the Collection
Period preceding such Payment Date, (y) the Discount Factor
for such Payment Date and (z) twelve less (iii) 2% per annum
unless the
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Monthly Servicing Fee has been waived (other than a deemed
waiver) pursuant to each Supplement, in which case solely, for
that Payment Date, "2% per annum" will be deemed to be
replaced by "0% per annum".
"Product Line Overconcentration" on any Determination Date
shall mean, with respect to Accounts created pursuant to
Wholesale Financing Agreements, the excess of (a) the
aggregate of all amounts of Principal Receivables in such
Accounts that represent financing for a single Product line
(according to CDF's classification system) on the last day of
the Collection Period immediately preceding such Determination
Date over (b) (i) twenty-five percent (25%) of the Pool
Balance on the last day of such immediately preceding
Collection Period if such Product line is not recreational
vehicles or boats or boat motors, (ii) thirty-five percent
(35%) of that Pool Balance if that product line is
recreational vehicles, or (iii) thirty-five percent (35%) of
that Pool Balance if that product line is boats or boat motors
or, in the case of clause (i), (ii) or (iii), if the Rating
Agency Condition is satisfied, such larger percentage of such
Pool Balance as is stated in the applicable notice from each
applicable Rating Agency in connection with the satisfaction
of such Rating Agency Condition.
"Rating Agency Condition" shall mean, with respect to any
action, that each Rating Agency shall have notified the
Transferor or the Servicer or the Trustee in writing that such
action shall not result in a reduction or withdrawal of such
Rating Agency's rating of any outstanding Series or Class with
respect to which it is a Rating Agency. The Rating Agency
Condition shall be inapplicable at any time that no such
Series or Class is outstanding.
"Specified Party" means any of the Transferor, General
Electric Capital Corporation, the Limited Partnership, the
Servicer, CDF, if it is not the Servicer, GECS, so long as CDF
is an Affiliate of GECS, or, if GECS has merged or
consolidated with another Person, the surviving Person (but
only so long as CDF is an Affiliate of the surviving Person)
or any other Person which is the direct, controlling
shareholder of CDF.
"Unconcentrated Pool Balance" shall mean, as of the end of any
Collection Period, the lesser of: (1) the Pool Balance at the
end of such Collection Period, and (2)(a)(i) such Pool Balance
minus (ii) the sum of the Principal Receivables in all
Accounts of all Overconcentrated Dealers at the end of such
Collection Period, divided by (b)(i) 100% minus (ii) the sum
of (x) the product of (A) the number of Overconcentrated
Dealers as to which the applicable Concentration Limit
Percentage is 2.5% and (B) 2.5%, (y) the product of (A) the
number of Overconcentrated Dealers as to which the applicable
Concentration Limit Percentage is 2% and (B) 2%, and (z) the
product of (A) the number of Overconcentrated Dealers as to
which the applicable Concentration Limit Percentage is other
than 2.5% or 2% and (B) in each case, such applicable
Concentration Limit Percentage.
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(b) The definition of "Eligible Investments" in Section 1.1 of the
PSA is hereby further amended by inserting "and" after the semicolon at the end
of clause (e) thereof, by replacing ", and" at the end of clause (f) thereof
with a period, and by deleting clause (g) thereof.
(c) Section 1.1 of the PSA is hereby further amended by adding the
following terms thereto in appropriate alphabetical order:
"Payment Date" shall mean the fifteenth day of each month or,
if such day is not a Business Day, the next succeeding
Business Day.
"Transferor" shall mean CDF Financing, L.L.C., and its
successors.
(d) Section 2.4(a) of the PSA is hereby amended by adding the
following new subsection at the end thereof:
"(v) The additional representations and warranties set
forth in Schedule 3 hereto are true and correct."
(e) Section 4.3 of the PSA is hereby amended by adding the
following new paragraph (f) at the end thereof:
"(f) For avoidance of doubt, Collections that are not required
by this Agreement or a Supplement (i) to be held or deposited
in a Trust account, or (ii) to be paid to a Person specified
in this Agreement or a Supplement, may be released to the
Transferor."
(f) Subsection 11.14(i) of the PSA is hereby amended by deleting
the words "New York" where they appear in such subsection and replacing them
with the word "Delaware".
(g) Section 11.15 of the PSA is hereby amended by deleting the
first sentence of such section and replacing it with the following sentence:
"The Trustee shall maintain at its expense in Wilmington,
Delaware or New York, New York, an office or offices or agency
or agencies where notices and demands to or upon the Trustee
in respect of the Certificates and this Agreement may be
served."
(h) The PSA is hereby amended by adding Schedule 3 attached hereto
as Schedule 3 to the PSA.
(i) Subsection 13.6(a)(iii) of the PSA is hereby amended by
inserting the following phrase at the end of such subsection: "with a copy to
Deutsche Bank Trust Company Americas, as agent, 000 Xxxx Xxxxxx, XX XXX00-0000,
Xxx Xxxx, XX 00000 Attention: Corporate Trust & Agency Services / Structured
Finance Group".
SECTION 3. Series 2000-2 Supplement.
Section 6.1(d) of the Series 2000-2 Supplement is hereby
amended to read in its entirety as follows:
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"(d) on any Determination Date occurring in the months of
November through June, the average of the Monthly Payment
Rates for the three preceding Collection Periods is less than
twenty percent (20%) (or a lower percentage if the Rating
Agency Condition has been satisfied with respect to that lower
percentage) or on any Determination Date occurring in the
months of July through October, the average of the Monthly
Payment Rates for the three preceding Collection Periods is
less than twenty-two and one-half percent (22.5%) (or a lower
percentage if the Rating Agency Condition has been satisfied
with respect to that lower percentage); or".
SECTION 4. Series 2000-4 Supplement.
(a) Section 6.1(c) of the Series 2000-4 Supplement is hereby
amended to read in its entirety as follows:
"(c) on any Determination Date occurring in the months of
November through June, the average of the Monthly Payment
Rates for the three preceding Collection Periods is less than
twenty percent (20%) (or a lower percentage if (i) the Rating
Agency Condition has been satisfied with respect to that lower
percentage, and (ii) the Managing Agents shall have consented
in writing to such lower percentage, which consent shall not
be unreasonably withheld) or on any Determination Date
occurring in the months of July through October, the average
of the Monthly Payment Rates for the three preceding
Collection Periods is less than twenty-two and one-half
percent (22.5%) (or a lower percentage if (i) the Rating
Agency Condition has been satisfied with respect to that lower
percentage, and (ii) the Managing Agents shall have consented
in writing to such lower percentage, which consent shall not
be unreasonably withheld); or".
(b) Section 6.1(e) of the Series 2000-4 Supplement is hereby
amended by inserting "in" immediately after "amounts on deposit".
SECTION 5. Submission to Jurisdiction. Each of the parties to this
Amendment hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Amendment or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such
Person at its address set forth in Section 13.6 of the PSA or at such other
address notified to the other parties to this Amendment; and
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(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to xxx in any other jurisdiction.
SECTION 6. Distribution Date Statement. The calculations set forth in
the Distribution Date Statement to be delivered for April, 2003 shall be
determined after giving effect to the amendments set forth in this Amendment.
SECTION 7. Miscellaneous. (a) THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS OF THE STATE OF
NEW YORK).
(b) This Amendment may be executed in any number of counterparts
and by the different parties on separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same Amendment. Executed counterparts of this
Amendment may be delivered by facsimile transmission or other electronic
transmission.
(c) The Agreements, as amended hereby, remain in full force and
effect. Any reference to an Agreement (whether in such Agreement or in any other
agreement or document) after the date hereof shall be deemed to refer to such
Agreement as amended hereby, unless otherwise expressly stated therein.
(d) The section titles contained in this Amendment are and shall
be without substantive meaning or content of any kind whatsoever.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date and year first above written.
WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as Trustee
By: Deutsche Bank Trust Company Americas
(f/k/a Bankers Trust Company), as Agent
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Vice President
Second Omnibus Amendment - CDF
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GE COMMERCIAL DISTRIBUTION FINANCE
CORPORATION, as Servicer
By: /s/ Xxxxxx X. Bay
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Name: Xxxxxx X. Bay
Title: Attesting Secretary
Second Omnibus Amendment - CDF
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CDF FINANCING, L.L.C.
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Manager
Second Omnibus Amendment - CDF
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SCHEDULE 3
Perfection Representations and Warranties
1. General. This Agreement creates a valid and continuing
security interest (as defined in the applicable UCC) in all of the Transferor's
right, title and interest in, to and under (i) the Receivables, (ii) the
Collateral Security and all proceeds thereof, (iii) the Floorplan Agreements and
(iv) the Receivables Contribution and Sale Agreement (clauses (i), (ii), (iii)
and (iv) may be referred to herein as the "Receivables Property") in favor of
the Trustee, which (a) is enforceable against creditors of and purchasers from
the Transferor, as such enforceability may be limited by applicable law, now or
hereafter in effect, and by general principles of equity (whether considered in
a suit at law or in equity), and (b) will be prior to all other Liens (other
than Liens permitted pursuant to paragraph 5 below) in such property.
2. Characterization. The Receivables constitute "accounts",
"general intangibles" or "tangible chattel paper" within the meaning of UCC
Section 9-102. The Transferor has taken all steps necessary to perfect its
security interest in the rights of the Limited Partnership in the property
securing the Receivables Property.
3. Creation. Immediately prior to the conveyance of the
Receivables pursuant to this Agreement, the Transferor owns and has good and
marketable title to, or has a valid security interest in the Limited
Partnership's rights in, the Receivables Property free and clear of any Lien,
claim or encumbrance of any Person.
4. Perfection. The Transferor has caused the filing of all
appropriate financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security interest
granted to the Trustee under this Agreement in the Transferor's rights in the
Receivables Property.
5. Priority. Other than the security interests granted to the
Trustee pursuant to this Agreement, the Transferor has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the
Receivables Property except as permitted by this Agreement. The Transferor has
not authorized the filing of and is not aware of any financing statements
against the Transferor that include a description of collateral covering the
Receivables Property other than any financing statement (i) relating to the
security interests granted to the Trustee under this Agreement, (ii) that has
been terminated, or (iii) that has been granted pursuant to the terms of the
Related Documents. None of the tangible chattel paper that constitutes or
evidences the Receivables has any marks or notations indicating that they have
been pledged, assigned or otherwise conveyed to any Person other than the
Trustee. The Transferor is not aware of any judgment, ERISA or tax lien filings
against it.
6. Survival of Perfection Representations. Notwithstanding any
other provision of this Agreement or any other Related Document, the Perfection
Representations contained in this Schedule 3 shall be continuing, and remain in
full force and effect.
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7. No Waiver. The parties to this Agreement: (i) shall not,
without satisfying the Rating Agency Condition, waive any of the representations
and warranties in this Schedule 3 (the "Perfection Representations"); (ii) shall
provide the Rating Agencies with prompt written notice of any breach of the
Perfection Representations, and shall not, without satisfying the Rating Agency
Condition (as determined after any adjustment or withdrawal of the ratings
following notice of such breach) waive a breach of any of the Perfection
Representations.
8. Servicer to Maintain Perfection and Priority. The Servicer
covenants that, in order to evidence the interests of the Transferor and the
Trustee under this Agreement, the Servicer shall take such action, or execute
and deliver such instruments (other than effecting a Filing (as defined below),
unless such Filing is effected in accordance with this paragraph) as may be
necessary or advisable (including such actions as are requested by the Trustee)
to maintain and perfect, as a first priority interest, the Trustee's security
interest in the Transferor's rights in the Receivables Property. The Servicer
shall, from time to time and within the time limits established by law, prepare
and present to the Trustee for the Trustee to authorize (based in reliance on
the Opinion of Counsel hereinafter provided for in this paragraph) the Servicer
to file, all financing statements, amendments, continuations, financing
statements in lieu of a continuation statement, terminations, partial
terminations, releases or partial releases, or any other filings necessary or
advisable to continue, maintain and perfect the Trustee's security interest in
the Transferor's rights in the Receivables Property as a first-priority interest
(each a "Filing"). The Servicer shall present each such Filing to the Trustee
together with (x) an Opinion of Counsel to the effect that such Filing is (i)
consistent with grant of the security interest to the Trustee pursuant to the
Section 2.1 of this Agreement, (ii) satisfies all requirements and conditions to
such Filing in this Agreement and (iii) satisfies the requirements for a Filing
of such type under the UCC in the applicable jurisdiction (or if the UCC does
not apply, the applicable statute governing the perfection of security
interests), and (y) a form of authorization for the Trustee's signature. Upon
receipt of such Opinion of Counsel and form of authorization, the Trustee shall
promptly authorize in writing the Servicer to, and the Servicer shall, effect
such Filing under the UCC. Notwithstanding anything else in this Agreement to
the contrary, the Servicer shall not have any authority to effect a Filing
without obtaining written authorization from the Trustee in accordance with this
paragraph (8).
Any reference in this Schedule to the Rating Agency Condition shall be
construed as if Standard & Poor's were the only Rating Agency.
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