Exhibit 3.5
FIRST AMENDMENT TO LIMITED LIABILITY COMPANY AGREEMENT OF CDF
FINANCING, L.L.C.
FIRST AMENDMENT TO LIMITED LIABILITY COMPANY AGREEMENT (this
"Amendment") dated as of April 1, 2003 between General Electric Capital
Services, Inc. ("GECS") and Deutsche Floorplan Receivables, L.P. (the "Limited
Partnership"; the Limited Partnership and GECS may be referred to herein
collectively as the "Initial Members").
Preliminary Statement
The Initial Members have formed a limited liability company (the
"Company") under the Delaware Limited Liability Company Act, as amended from
time to time (the "Act"), and are party to a Limited Liability Company Agreement
with respect to the Company, dated as of December 31, 2002 (the "Limited
Liability Company Agreement").
The Initial Members wish to amend the Limited Liability Company
Agreement as set forth herein.
ARTICLE I. Definitions.
SECTION 1.1. Definitions. Capitalized terms used in this Amendment and
not otherwise defined herein shall have the meanings assigned to such terms in
the "Definitions Addendum" attached to the Limited Liability Company Agreement
and shall otherwise have the meanings assigned to such terms in the Act.
ARTICLE II. Amendments.
SECTION 2.1. Amendment to Section 8.1. Section 8.1 of the Limited
Liability Company Agreement is hereby amended to state in its entirety as set
forth below:
"SECTION 8.1. Management.
(a) Management of the Company is vested in the Persons
appointed by GECS (GECS may be referred to from time to time as the "Controlling
Member") from time to time (each a "Manager"). Each Manager shall be a manager
within the meaning of the Act. Each Manager shall perform duties as Manager as
set forth in this Agreement and in the Act and may enter into contracts with
Persons on behalf of the Company and engage in activities on behalf of the
Company, including without limitation issuing, delivering and executing
contracts, agreements and other documents in connection therewith, in each case
in accordance with Section 4.1.
(b) Any action to be taken by or on behalf of the Company
(including without limitation the filing of a registration statement with the
Securities and Exchange Commission, the filing of any amendment to any such
registration statement and any activity contemplated by Section 4.1) may be
authorized or approved by a majority of the Managers, without the vote, consent
or approval of any Member. Any authorization or approval by a majority of the
Managers may occur either: (i) by a vote of a majority of the Mangers; or (ii)
without a vote and without a meeting if a consent or consents in writing shall
be signed by a majority of the Managers.
(c) Nothing in this Section 8.1 shall override Section 16.1."
SECTION 2.2. Amendment to Section 15.1. Section 15.1 of the Limited
Liability Company Agreement is hereby amended to state in its entirety as set
forth below:
"SECTION 15.1 Duration and Dissolution. The Company shall not
be dissolved and its affairs shall not be wound up solely upon the
withdrawal or termination of a Member (other than the last remaining
Member). The Company shall be dissolved and its affairs shall be wound
up upon the affirmative vote or written consent of either of the
Initial Members; provided that no such dissolution (or any liquidation,
consolidation, merger, asset sale (other than as provided for in the
Pooling and Servicing Agreement, any Supplement thereto or any other
"Related Document" as defined in the Pooling and Servicing Agreement)
or amendment of its organization documents) shall occur during such
time as any Series of Investor Certificates is outstanding."
SECTION 2.3. Amendment to Section 16.1. Section 16.1 of the Limited
Liability Company Agreement is hereby amended to state in its entirety as set
forth below:
"SECTION 15.1 Bankruptcy. Except by the unanimous consent of
all Managers (at least one of whom at the time of such vote must be an
Independent Manager), the Company shall not file a voluntary petition
in bankruptcy, consent to or acquiesce in an involuntary petition or
otherwise seek relief under Title 11 of the United States Code or any
successor statute thereto, or under any similar applicable state law."
SECTION 2.4. New Article XVII. The Limited Liability Company Agreement
is hereby amended by inserting the following Article XVII after Article XVI:
"ARTICLE XVII.
Section 17.1 Separate Identity. In order to maintain a separate
identity from its Members or any other Person, the Company shall at all times
(i) maintain books and records separate from any other Person; (ii) avoid
commingling its assets with those of any other Person (including the Members of
the Company); (iii) conduct its business in its own name; (iv) maintain
financial statements separate from any other entity; (v) pay its own liabilities
out of its own funds; (vi) observe all organizational formalities under the Act
or this Agreement; (vii) maintain an arm's length relationship with its
Affiliates (including the Members of the Company); (viii) not guarantee or
become obligated for the debts of any other Person or hold out its credit as
being available to satisfy the obligations of any other Person; (ix) allocate
reasonable overhead expenses for office space shared with any other entity; (x)
use its own stationery, invoices and checks; (xi) avoid pledging its assets for
the benefit of any other Person; and (xii) hold itself out as a separate entity;
provided that this Section shall not prevent (x) the servicing and collection
activities of the "Servicer" pursuant to the Pooling and Servicing Agreement or
(y) the Company from agreeing to provide indemnification to underwriters and
purchasers
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pursuant to underwriting agreements and purchase agreements relating to the sale
of Investor Certificates.
Section 17.2. Independent Manager. Notwithstanding Section 8.1 of this
Agreement, the Company shall at all times have at least one Independent Manager.
Section 17.3. Additional Debt. The Company shall incur no debt or
contingent liabilities (other than debt or contingent liabilities (x) pursuant
to the Pooling and Servicing Agreement or any Supplement thereto or related to
the Investor Certificates or (y) contemplated by underwriting agreements and
purchase agreements relating to the sale of Investor Certificates), unless (a)
such additional debt or contingent liability is non-recourse to the Company or
any assets of the Company (other than cash flows in excess of amounts necessary
to pay amounts relating to the outstanding Series of Investor Certificates) and
does not constitute a claim against the Company to the extent that funds are
insufficient to pay such additional debt or contingent liability and (b) (i)
such additional debt or contingent liability is rated by a Rating Agency (as
such term is defined in the Pooling and Servicing Agreement) the same as or
higher than the outstanding Series of Investor Certificates or (ii) such
additional debt or contingent liability is subordinated to the outstanding
Series of Investor Certificates.
Section 17.4. Dissolution. Upon the dissolution of the Company pursuant
to Section 15.1 of this Agreement, (i) subject to the terms of the Pooling and
Servicing Agreement and all Supplements thereto, the Trustee (as defined in the
Pooling and Servicing Agreement) shall have the ability to retain the Trust
Assets (as defined in the Pooling and Servicing Agreement) and continue to pay
scheduled principal and interest payments on the outstanding Series of Investor
Certificates or to liquidate the Trust Assets (as defined in the Pooling and
Servicing Agreement) in the event the proceeds of Receivables would be
insufficient to repay all amounts due, and (ii) subject to the terms of the
Pooling and Servicing Agreement, the assets of the Company shall not be
liquidated without the consent of 100% of the holders of the outstanding Series
of Investor Certificates (for the avoidance of doubt, this clause (ii) shall not
apply to Trust Assets).
Section 17.5 Qualification. The Company shall at all times be qualified
to transact business in the states where the tangible assets of the Company are
located.
Section 17.6 Interests of Creditors. When acting on matters subject to
the vote of the Members, notwithstanding that the Company may be insolvent, the
Members and the Independent Manager shall take into account the interests of the
Company's creditors."
ARTICLE III. Miscellaneous.
SECTION 3.1. Headings. The titles of Sections of this Amendment are for
convenience or reference only and shall not define or limit any of the
provisions of this Amendment.
SECTION 3.2. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without giving
effect to conflicts of law principles thereof.
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SECTION 3.3. Separability of Provisions. Each provision of this
Amendment shall be considered separable and if for any reason any provision or
provisions herein are determined to be invalid, unenforceable or illegal under
any existing or future law, such invalidity, unenforceability or illegality
shall not impair the operation of or affect those portions of this Amendment
which are valid, enforceable and legal.
SECTION 3.4. Further Assurances. Each Initial Member agrees to execute
and deliver such further instruments and do such further acts and things as may
be required to carry out the intent and purposes of this Amendment.
SECTION 3.5. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be deemed an original of this Amendment.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have duly executed this Amendment as of the date first above written.
GENERAL ELECTRIC CAPITAL
SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
First Amendment to Limited
Liability Company Agreement
DEUTSCHE FLOORPLAN
RECEIVABLES, L.P.
By: Deutsche Floorplan Receivables, Inc., its
general partner
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
First Amendment to Limited
Liability Company Agreement
