Exhibit 4.12
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: 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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