Exhibit 4.2
AMENDMENT TO
RECEIVABLES CONTRIBUTION AND SALE AGREEMENT
This AMENDMENT is made and entered into as of April 1, 2003 (this
"Amendment") by and between Deutsche Floorplan Receivables, L.P., a Delaware
limited partnership, as Seller (the "Limited Partnership") and CDF Financing,
L.L.C., a Delaware limited liability company, as Buyer (the "LLC").
BACKGROUND
WHEREAS, Limited Partnership and the LLC are parties to the Receivables
Contribution and Sale Agreement, dated as of December 31, 2002 (the "Sale
Agreement"); and
WHEREAS, the parties to the Sale Agreement desire to amend the Sale
Agreement as set forth herein.
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. Amendments.
(a) Amendment to Representations and Warranties.
Subsection 2.3(a) of the Sale Agreement is hereby amended by adding the
following new clause at the end thereof:
"(vi) The additional representations and warranties set forth
in Schedule 2 hereto are true and correct."
(b) Schedule 2. The Sale Agreement is hereby amended by
adding Schedule 2 attached hereto as Schedule 2 to the Sale Agreement.
SECTION 3. 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 3:
(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 4. 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 (whether in the
Sale Agreement or in any other agreement or document) from and after
the date hereof shall be deemed to refer to the Sale Agreement as
amended hereby, unless otherwise expressly stated.
(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 5. 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.
CDF FINANCING, L.L.C.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager
Amendment to Contribution
and Sale Agreement
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DEUTSCHE FLOORPLAN RECEIVABLES, L.P.
By: Deutsche Floorplan Receivables, Inc., its
General Partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Amendment to Contribution
and Sale Agreement
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SCHEDULE 2
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 Seller's
right, title and interest in, to and under (i) the Receivables, (ii) the
Collateral Security and all proceeds thereof and (iii) the Floorplan Agreements
(clauses (i), (ii) and (iii) may be referred to herein as the "Receivables
Property") in favor of the Buyer, which (a) is enforceable against creditors of
and purchasers from the Seller, 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 Seller has taken all steps necessary to perfect its ownership
interest in the rights of CDF in the property securing the Receivables Property.
3. Creation. Immediately prior to the conveyance of the
Receivables pursuant to this Agreement, the Seller owns and has good and
marketable title to, or has a valid security interest in CDF's rights in, the
Receivables Property free and clear of any Lien, claim or encumbrance of any
Person.
4. Perfection. The Seller 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 ownership interest
arising under this Agreement in the Seller's rights in the Receivables Property.
5. Priority. Other than the ownership interests transferred to
the Buyer pursuant to this Agreement, the Seller 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 Seller has not
authorized the filing of and is not aware of any financing statements against
the Seller that include a description of collateral covering the Receivables
Property other than any financing statement (i) relating to the security
interests granted to the Buyer 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 Buyer. The Seller 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 2 shall be continuing, and remain in
full force and effect.
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 2 (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
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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. Seller to Maintain Perfection and Priority. The Seller
covenants that, in order to evidence the interests of the Seller and the Buyer
under this Agreement, the Seller 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 Buyer) to maintain and
perfect, as a first priority interest, the Buyer's ownership interest in the
Seller'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
Buyer (and the Trustee) for the Buyer to authorize (based in reliance on the
Opinion of Counsel hereinafter provided for in this paragraph) the Seller 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 Buyer's ownership interest in the Seller's
rights in the Receivables Property as a first-priority interest (each a
"Filing"). The Servicer shall present each such Filing to the Buyer (and the
Trustee) together with (x) an Opinion of Counsel to the effect that such Filing
is (i) consistent with transfer of the ownership interest to the Buyer 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 Buyer's signature.
Upon receipt of such Opinion of Counsel and form of authorization, the Buyer
shall promptly authorize in writing the Seller to, and the Seller shall, effect
such Filing under the UCC. Notwithstanding anything else in this Agreement to
the contrary, the Seller shall not have any authority to effect a Filing without
obtaining written authorization from the Buyer 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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