EXHIBIT 10.2
AMENDMENT TO
RECEIVABLES CONTRIBUTION AND SALE AGREEMENT
This AMENDMENT is made and entered into as of December 31, 2002
("Amendment") by and between GE Commercial Distribution Finance Corporation, a
Nevada corporation (formerly known as Deutsche Financial Services Corporation),
as Seller ("CDF") and Deutsche Floorplan Receivables, L.P., a Delaware limited
partnership, as Buyer ("Limited Partnership").
BACKGROUND
WHEREAS, CDF and Limited Partnership are parties to the Receivables
Contribution and Sale Agreement, dated as of December 1, 1993, amended and
restated as of March 1, 1994, amended as of January 24, 1996 and amended and
restated as of October 1, 1996 (as so amended, the "Sale Agreement"); and
WHEREAS, Deutsche Business Services Corporation ("DBSC") is no longer a
going concern and therefore is no longer a seller under the Sale Agreement;
WHEREAS, the parties to the Sale Agreement desire to amend the Sale
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms defined in the Sale
Agreement and used in this Amendment but not otherwise defined herein shall have
the meanings assigned to them in the Sale Agreement.
SECTION 2. Recitals. The third and fourth recitals to the Sale
Agreement are hereby deleted and replaced with the following:
"WHEREAS, the Buyer desires to sell or contribute such payment
obligations to CDF Financing, L.L.C. ("LLC"), pursuant to a Receivables
Contribution and Sale Agreement dated as of December 31, 2002 (as the same may
from time to time be amended, supplemented or otherwise modified, the "LP/LLC
Sale Agreement");
WHEREAS, the LLC is becoming a party to (and the Buyer is ceasing to be
a party to) the Amended and Restated Pooling and Servicing Agreement dated as of
April 1, 2000 (as the same may from time to time be amended, supplemented or
otherwise modified, the "Pooling and Servicing Agreement"), among the LLC, CDF,
as Servicer, and Wilmington Trust Company, as successor to The Chase Manhattan
Bank, as Trustee (the "Trustee")."
SECTION 3. Deutsche Business Services Corporation Amendments.
(a) Generally. All references to "Deutsche Business Services
Corporation" in the Sale Agreement are hereby deleted.
(b) Sellers. All references to "either Seller" , "each Seller" ,
"such Seller" or "the applicable Seller" are hereby replaced with "the
Seller" and all references to "Sellers" are hereby replaced with
"Seller".
(c) Section 5.1 of the Sale Agreement. The first sentence of
Section 5.1 of the Sale Agreement is hereby amended by deleting the
language "Neither Seller shall consolidate" and replacing it with "The
Seller shall not consolidate".
(d) Section 7.1(f) of the Sale Agreement. Section 7.1(f) of the
Sale Agreement is hereby deleted in its entirety.
(e) Section 7.6 of the Sale Agreement. Section 7.6 is hereby
amended by deleting the language "or, in the case of notices to
Deutsche BSC, to the following address: 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx.
Xxxxx, Xxxxxxxx 00000, Attention: Secretary" and by replacing it with
the language "or, in the case of notices to Limited Partnership, to the
following address: 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx
00000, Attention: Finance Manager".
SECTION 4. Uniform Commercial Code References.
(a) Section 2.1 of the Sale Agreement. The first paragraph of
Section 2.1 of the Sale Agreement is hereby amended by deleting the
phrase "(including "proceeds" as defined in Section 9-306 of the UCC as
in effect in the State of Missouri and the State of Georgia, as
applicable, and Recoveries)" and replacing it with "(including
"proceeds" as defined in the UCC, and Recoveries)". The fifth paragraph
of Section 2.1 is hereby amended by deleting the phrase "(as defined in
Section 9-105 of the UCC as in effect in any state where such Seller's
or the Servicer's chief executive offices or books and records relating
to the Receivables are located)" and replacing it with "(as defined in
the UCC)".
(b) Section 2.2(j) of the Sale Agreement. Section 2.2(j) is hereby
amended by deleting the language "Missouri and the County Recorder of
St. Louis County in the State of Missouri with respect to DFS and the
County Recorder of Xxxx County in the State of Georgia, in the case of
Deutsche BSC" and replace it with "Nevada".
(c) Section 7.2(b) of the Sale Agreement. Section 7.2 is hereby
amended by deleting the language "Section 9-402(7) of the UCC as in
effect in the State of Missouri or the State of Georgia, as applicable,
or such other applicable jurisdiction," and replacing it with "the UCC
as in effect in the applicable jurisdiction,".
SECTION 5. Additional Amendments to Sale Agreement.
(a) The last sentence of the last paragraph of Section 2.2 is
hereby amended by inserting the phrase ", the Collateral Security and
Floorplan Rights" after the words "The obligation of the Seller to
purchase the Receivables".
(b) Section 2.3(a)(iii) is hereby amended in its entirety to read
as follows: "(iv) On the Cut-Off Date, each Initial Account is an
Eligible Account, and, in the case of
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Additional Accounts, on the Additional Cut-Off Date, each such
Additional Account is an Eligible Account."
(c) Section 2.4(b)(v)(C) is hereby amended by changing the word
"servicer" to "Servicer".
(d) Section 2.4(b)(x) is hereby amended by deleting the language
"no less frequently" and replacing it with "no more frequently".
(e) Section 7.1(b) is hereby amended by deleting the word "action"
in the second to last sentence of the paragraph and replacing it with
"amendment".
(f) Section 7.5 is hereby amended and restated to read as follows:
"Section 7.5. GOVERNING LAW. THIS AGREEMENT AND THE OBLIGATIONS ARISING
HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK, BUT OTHERWISE WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW
PROVISIONS OF THE STATE OF NEW YORK)."
SECTION 6. Representations and Warranties. In order to induce the
parties hereto to enter into this Amendment, each of the parties hereto
represents and warrants unto the other parties hereto as set forth in this
Section 6:
(a) Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by such party of this Amendment are within its
powers, have been duly authorized by all necessary action, and do not:
(i) contravene its organizational documents; or (ii) contravene any
contractual restriction, law or governmental regulation or court decree
or order binding on or affecting it; and
(b) Validity, etc. This Amendment constitutes the legal, valid and
binding obligation of such party enforceable against such party in
accordance with its terms, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights and general equitable
principles.
SECTION 7. Binding Effect; Ratification. (a) This Amendment shall
become effective, as of the date first set forth above, when counterparts hereof
shall have been executed and delivered by the parties hereto, and thereafter
shall be binding on the parties hereto and their respective successors and
assigns.
(b) Any reference to the Sale Agreement from and after the date
hereof shall be deemed to refer to the Sale Agreement as amended
hereby, unless otherwise expressly stated.
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(c) Except as expressly amended hereby, the Sale Agreement shall
remain in full force and effect and is hereby ratified and confirmed by
the parties hereto.
SECTION 8. Miscellaneous. (a) THIS AMENDMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401(1) OF THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REGARD TO ANY
OTHER CONFLICT OF LAW PROVISIONS THEREOF).
(b) Headings used herein are for convenience of reference only and
shall not affect the meaning of this Amendment or any provision hereof.
(c) This Amendment may be executed in any number of counterparts,
and by the parties hereto on separate counterparts, each of which when
executed and delivered shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(d) Executed counterparts of this Amendment may be delivered
electronically.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective representatives thereunto duly authorized as of the
day and year first above written.
GE COMMERCIAL DISTRIBUTION FINANCE
CORPORATION
By: __________________________________
Name:_____________________________
Title:____________________________
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DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
By: Deutsche Floorplan Receivables,
Inc., its General Partner
By: __________________________________
Name:_____________________________
Title:____________________________
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