Exhibit 3.1
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/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President
DEUTSCHE FLOORPLAN
RECEIVABLES, L.P.
By: Deutsche Floorplan Receivables, Inc.,
its general partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Treasurer
