AMENDMENT NO. 2 TO AMENDED AND RESTATED SALE AND SERVICING AGREEMENT
Exhibit 99.1
AMENDMENT NO. 2 TO AMENDED AND RESTATED
SALE AND SERVICING AGREEMENT
SALE AND SERVICING AGREEMENT
This AMENDMENT NO. 2 TO AMENDED AND RESTATED SALE AND SERVICING AGREEMENT (this
“Amendment”), dated as of February 12, 2009, among TEXTRON FINANCIAL CORPORATION, a
Delaware corporation (the “Servicer”), TEXTRON RECEIVABLES CORPORATION III, a Delaware
corporation (the “Seller”), TEXTRON FINANCIAL FLOORPLAN MASTER NOTE TRUST, a Delaware
statutory trust (the “Trust”), and THE BANK OF NEW YORK MELLON (f/k/a The Bank of New
York), not in its individual capacity but solely as Indenture Trustee (the “Indenture
Trustee”).
BACKGROUND
A. The Servicer, the Seller, the Trust and the Indenture Trustee are party to that certain
Amended and Restated Sale and Servicing Agreement dated as of May 26, 2005 (as amended or otherwise
modified, the “Sale and Servicing Agreement”).
B. The Seller and the Servicer have made a request to amend certain provisions of the Sale and
Servicing Agreement pursuant to Section 8.1(b) of the Sale and Servicing Agreement, which permits
an amendment of the Sale and Servicing Agreement without the consent of any of the Interestholders
of any outstanding Series so long as (i) the Servicer has delivered to the Indenture Trustee an
Officer’s Certificate to the effect that the amendment will not adversely affect in any material
respect the interests of any of the Interestholders of any outstanding Series and (ii) the Rating
Agency Condition is satisfied.
C. The parties hereto are willing to enter into this Amendment upon the terms and conditions
set forth below.
NOW THEREFORE, in consideration of the matters set forth in the recitals and the covenants and
provisions herein set forth, and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
Section 1. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed thereto in the Sale and Servicing Agreement.
Section 2. Amendments to the Sale and Servicing Agreement.
(a) Section 1.1 of the Sale and Servicing Agreement is hereby amended by restating in its
entirety the definition of “Required Net Pool Balance” as follows:
“Required Net Pool Balance” means, as of any date of determination, the
difference between (x) the higher of (i) the sum of the numerators used at such date
to calculate the Fixed Allocation Percentages with respect to Principal Collections
for all Series outstanding on such date, or (ii) the sum of the amounts for each
Series outstanding on such date obtained by multiplying (a) the Required Residual
Percentage for such Series by (b) the numerator used at such date to calculate the
Floating Allocation Percentage for such Series, and (y) the sum of (A) the amount on
deposit in the Excess Funding Account as of such date of determination and (B) the
amount on deposit in the Principal Account
as of such date of determination for any Series in its Controlled Accumulation
Period or Early Amortization Period.
(b) Section 2.7 of the Sale and Servicing Agreement is hereby amended by inserting a new
clause (c) immediately before the last paragraph of such Section as follows:
(c) Notwithstanding the foregoing, if, on any day, an Account has a Receivable
balance of zero which the Servicer will remove from its master files, only the
conditions set forth in Section 2.7(b)(v), (vi)(B) and (vii)
(to the extent applicable) need be satisfied, but such Account shall otherwise be
deemed to be a Removed Account and Designated Account and the Removal Commencement
Date shall be the date on which the Servicer removes such Account from its master
files. In connection with such removal, the Servicer shall deliver to the Owner
Trustee and the Indenture Trustee a computer file or microfiche or written list of
such Designated Accounts being removed and specifying the account number for each
such Designated Account.
(c) The second to last sentence of Section 2.7 of the Sale and Servicing Agreement is hereby
amended by restating in its entirety such sentence as follows:
Upon satisfaction of the above conditions, if applicable, on the Removal
Commencement Date with respect to any Designated Account, the Seller shall cease to
allocate any Collections therefrom in accordance with this Section 2.7 and
such Designated Account and any Collateral Security related to any present or former
Receivables in such Designated Account shall be deemed removed from the Trust for
all purposes and the Trust shall automatically and without further action be deemed
to sell, transfer, assign, set over and otherwise convey to the Seller, without
recourse, representation or warranty, all the right, title and interest of the Trust
in and to all Collateral Security related to any present or former Receivable in
such Designated Account and all moneys due or to become due with respect thereto and
all proceeds thereof.
Section 3. Covenants, Representations and Warranties.
(a) Upon the effectiveness of this Amendment, each of the Servicer, the Seller and the
Trust hereby reaffirms all covenants, representations and warranties made by it, to the
extent the same are not amended hereby, in the Basic Documents and agrees that all such
covenants, representations and warranties (except to the extent such representations and
warranties related to a specific date) shall be deemed to have been re-made as of the date
of this Amendment.
(b) Each of the Servicer, the Seller and the Trust hereby represents and warrants as to
itself (i) that this Amendment constitutes the legal, valid and binding obligation of such
party enforceable against such party in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and general principles of equity
which may limit the availability of equitable remedies and (ii) upon the effectiveness of
this Amendment, no event shall have occurred and be continuing which constitutes an Event of
Default.
Section 4. Conditions Precedent. This Amendment shall be effective as of the date
first set forth above, subject to the satisfaction of the following conditions precedent:
(a) Executed Amendment. Receipt by the Indenture Trustee of a copy of this
Amendment duly executed by each of the parties hereto;
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(b) Servicer Officer’s Certificate. The Servicer has delivered to the
Indenture Trustee an Officer’s Certificate to the effect that this Amendment will not
adversely affect in any material respect the interests of any of the Interestholders of any
outstanding Series; and
(c) Rating Agency Condition. The Rating Agency Condition is satisfied.
Section 5. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF (OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAWS) AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 6. Execution in Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken together shall
constitute but one and the same instrument.
Section 7. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment for any other
purpose.
Section 8. Instruction to Owner Trustee. Each of the Servicer and the Seller, as the
sole Certificateholder under the Trust Agreement, hereby instructs the Owner Trustee to execute, on
behalf of the Trust, this Amendment and to execute each other document and take any and all
additional action as may be required in connection with the transactions contemplated by this
Amendment. The Seller, in its capacity as the sole Certificateholder under the Trust Agreement,
hereby waives any prior notice required under Section 4.1 of the Trust Agreement with respect to
this Amendment. Each of the Servicer and the Seller hereby certifies that the above-referenced
actions are duly authorized pursuant to and in accordance with the Trust Agreement and that all
conditions precedent under the Basic Documents with respect to this Amendment have been satisfied
or waived. Each of the Servicer and the Seller agree that all action taken by the Owner Trustee in
connection with this Amendment is covered by the fee and indemnification provisions set forth in
the Trust Agreement and that U.S. Bank Trust National Association shall be fully indemnified by the
Servicer or the Seller in connection with action taken pursuant to this Amendment and the
transactions contemplated hereby.
Section 9. Limitation of Owner Trustee and Indenture Trustee Liability.
(a) It is expressly understood and agreed by the parties that (i) this Amendment is
executed and delivered by U.S. Bank Trust National Association, not individually or
personally, but solely as Owner Trustee, in the exercise of the powers and authority
conferred and vested in it, pursuant to the Trust Agreement, (ii) each of the
representations, undertakings and agreements herein made on the part of the Trust is made
and intended not as personal representations, undertakings and agreements by U.S. Bank Trust
National Association but is made and intended for the purpose for binding only the Trust,
(iii) nothing herein contained shall be construed as creating any liability on U.S. Bank
Trust National Association, individually or personally, to perform any covenant either
expressed or implied contained herein, all such liability, if any, being expressly waived by
the parties hereto and by any person claiming by, through or under the parties hereto, and
(iv) under no circumstances shall U.S. Bank Trust National Association be personally liable
for the payment of any indebtedness or expenses of the Trust or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or undertaken by the
Trust under this Amendment or any other related documents.
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(b) It is expressly understood and agreed by the parties that (i) this Amendment is
executed and delivered by The Bank of New York Mellon, not individually or personally, but
solely as Indenture Trustee, in the exercise of the powers and authority conferred and
vested in it, pursuant to the Indenture, (ii) nothing herein contained shall be construed as
creating any liability on The Bank of New York Mellon, individually or personally, to
perform any covenant either expressed or implied contained herein, all such liability, if
any, being expressly waived by the parties hereto and by any person claiming by, through or
under the parties hereto, and (iii) under no circumstances shall The Bank of New York Mellon
be personally liable for the payment of any indebtedness or expenses of the Trust or be
liable for the breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the Trust under this Amendment or any other related documents.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective authorized officers as of the day and year first above written.
TEXTRON FINANCIAL CORPORATION, as Servicer |
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By: | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Assistant Treasurer | |||
TEXTRON RECEIVABLES CORPORATION III, as Seller |
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By: | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Assistant Treasurer | |||
TEXTRON FINANCIAL FLOORPLAN MASTER
NOTE TRUST |
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By: | U.S. BANK TRUST NATIONAL
ASSOCIATION, not in its individual capacity but solely as Owner |
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Trustee on behalf of the Trust | ||||
By: | /s/ Xxxx Xxxxxxx | |||
Name: | Xxxx Xxxxxxx | |||
Title: | Vice President | |||
THE BANK OF NEW YORK MELLON, not in
its individual capacity but solely as Indenture Trustee |
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By: | /s/ Xxxxxxxxxx Xxxx | |||
Name: | Xxxxxxxxxx Xxxx | |||
Title: | Assistant Treasurer | |||
Signature Page to Amendment No. 2 to Amended and Restated Sale and Servicing Agreement