Exhibit 99.2
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DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC
Seller
DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC
Servicer
and
DAIMLERCHRYSLER MASTER OWNER TRUST
SALE AND SERVICING AGREEMENT
Dated as of December 16, 2004
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Table of Contents
Page
ARTICLE I
Definitions
SECTION 1.01 Definitions.................................................................................1
SECTION 1.02 Other Definitional Provisions..............................................................19
ARTICLE II
Conveyance of Receivables
SECTION 2.01 Conveyance of Receivables..................................................................20
SECTION 2.02 Acceptance by the Trust; Payment for Conveyances...........................................22
SECTION 2.03 Representations and Warranties of the Seller Relating to the Seller and this
Agreement..................................................................................23
SECTION 2.04 Representations and Warranties of the Seller Relating to the Receivables...................25
SECTION 2.05 Addition of Accounts.......................................................................27
SECTION 2.06 Covenants of the Seller....................................................................30
SECTION 2.07 Removal of Eligible Accounts...............................................................32
SECTION 2.08 Removal of Ineligible Accounts.............................................................38
SECTION 2.09 Sale of Ineligible Receivables.............................................................39
SECTION 2.10 Representations and Warranties as to the Trust's Security Interest in the
Receivables................................................................................40
ARTICLE III
Administration and Servicing of Receivables
SECTION 3.01 Acceptance of Appointment and Other Matters Relating to the Servicer.......................41
SECTION 3.02 Servicing Compensation.....................................................................43
SECTION 3.03 Representations, Warranties and Covenants of the Servicer..................................43
SECTION 3.04 Reports and Instructions for the Trustee...................................................46
SECTION 3.05 Annual Servicer's Certificate..............................................................46
SECTION 3.06 Annual Independent Public Accountants' Servicing Report....................................47
SECTION 3.07 Tax Treatment..............................................................................47
SECTION 3.08 Notices to DCS.............................................................................48
SECTION 3.09 Adjustments................................................................................48
SECTION 3.10 Dealer Concentrations......................................................................48
ARTICLE IV
DEPOSIT, Allocation and
Application of Collections AND OTHER AMOUNTS
SECTION 4.01 Interests in Receivables and Other Collateral..............................................49
SECTION 4.02 Deposits of Collections into the Collection Account........................................49
SECTION 4.03 Allocations of Collections and Other Amounts to Each Series................................51
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SECTION 4.04 Allocations of Collections to the Seller...................................................52
SECTION 4.05 Repurchased Receivables Purchase Price Payments............................................52
SECTION 4.06 Excess Funding Account; Deposits, Allocations and Withdrawals..............................53
SECTION 4.07 Unallocated Principal Collections..........................................................55
ARTICLE V
[RESERVED]
ARTICLE VI
[reserved]
ARTICLE VII
Other Matters Relating to the Seller
SECTION 7.01 Liability of the Seller....................................................................55
SECTION 7.02 Limitation on Liability of the Seller......................................................56
SECTION 7.03 Seller Indemnification of the Trust, the Trustee, the Owner Trustee and the
Enhancement Providers......................................................................56
SECTION 7.04 Transfer of Seller's Interest to Designated Affiliate......................................57
ARTICLE VIII
Other Matters Relating to the Servicer
SECTION 8.01 Liability of the Servicer..................................................................58
SECTION 8.02 Merger or Consolidation of, or Assumption of, the Obligations of the Servicer..............58
SECTION 8.03 Limitation on Liability of the Servicer and Others.........................................58
SECTION 8.04 Servicer Indemnification of the Trust, the Trustee, the Owner Trustee and the
Enhancement Providers......................................................................59
SECTION 8.05 The Servicer Not to Resign.................................................................59
SECTION 8.06 Access to Certain Documentation and Information Regarding the Receivables..................59
SECTION 8.07 Delegation of Duties.......................................................................60
SECTION 8.08 Examination of Records.....................................................................60
SECTION 8.09 Optional Repurchase by the Servicer........................................................60
ARTICLE IX
[RESERVED]
ARTICLE X
Service Defaults
SECTION 10.01 Service Defaults...........................................................................60
SECTION 10.02 Trustee to Act; Appointment of Successor...................................................62
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ARTICLE XI
[reserved]
ARTICLE XII
Termination
SECTION 12.01 Termination of Agreement...................................................................64
ARTICLE XIII
Miscellaneous Provisions
SECTION 13.01 Amendment..................................................................................64
SECTION 13.02 Protection of Right, Title and Interest to Trust...........................................65
SECTION 13.03 No Petition................................................................................66
SECTION 13.04 GOVERNING LAW..............................................................................66
SECTION 13.05 Notices....................................................................................67
SECTION 13.06 Severability of Provisions.................................................................67
SECTION 13.07 Assignment.................................................................................67
SECTION 13.08 Further Assurances.........................................................................67
SECTION 13.09 No Waiver; Cumulative Remedies.............................................................68
SECTION 13.10 Counterparts...............................................................................68
SECTION 13.11 Third-Party Beneficiaries..................................................................68
SECTION 13.12 Rule 144A Information......................................................................68
SECTION 13.13 Merger and Integration.....................................................................68
SECTION 13.14 Headings...................................................................................68
SECTION 13.15 Limitation on Liability of the Owner Trustee and Trustee...................................69
EXHIBITS
EXHIBIT A [Intentionally Omitted]
EXHIBIT B Form of Assignment of Receivables in Additional Accounts
EXHIBIT C Form of Annual Servicer's Certificate
EXHIBIT D [Intentionally Omitted]
EXHIBIT E [Intentionally Omitted]
EXHIBIT F [Intentionally Omitted]
EXHIBIT G-1 Form of Opinion of Counsel with respect to Amendments
EXHIBIT G-2 Form of Opinion of Counsel with respect to Accounts
EXHIBIT H Form of Reassignment Agreement
EXHIBIT I [Intentionally Omitted]
EXHIBIT J Form of Subordinated Note of the Seller
EXHIBIT K Form of Assignment and Assumption Agreement
SCHEDULES
SCHEDULE 1 List of Accounts
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SALE AND SERVICING AGREEMENT, dated as of December 16, 2004, among
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC, a Delaware limited liability
company, as Seller, DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC, a Michigan
limited liability company, as Servicer, and DAIMLERCHRYSLER MASTER OWNER
TRUST, a Delaware statutory trust.
WITNESSETH:
WHEREAS, DCWR (as transferee from US Auto, which itself was the
transferee from CARCO), DCS (as successor to CFC, which itself was the
successor to CFC Corp., which itself was the successor to CCC) and the CARCO
Trust Trustee are parties to the Amended and Restated Pooling and Servicing
Agreement, dated as of December 5, 2001, as amended by the First Amendment
thereto, dated as of November 14, 2003 (as so amended, the "Pooling and
Servicing Agreement"); and
WHEREAS, pursuant to the Program Amendment Agreement, dated as of
the date hereof, among DCWR, DCS, the CARCO Trust Trustee, the Trust, the
Trustee and the Owner Trustee (as amended and supplemented from time to time,
the "Program Amendment Agreement"), the CARCO Trust governed under the Pooling
and Servicing Agreement shall be dissolved, and the Pooling and Servicing
Agreement (and the Series 2002-CC Supplement) among DCWR, DCS and the CARCO
Trust Trustee shall be terminated, upon (i) the delivery of the Collateral
Certificate by the Trustee, on behalf of the Trust and DCWR, to the CARCO
Trust Trustee for cancellation, (ii) the delivery of the CARCO Certificate by
DCWR to the CARCO Trust Trustee for cancellation, (iii) the issuance of the
DCMOT Certificate by the Trust to DCWR pursuant to the Trust Agreement, (iv)
the amendment and restatement of the Existing Transaction Documents (as
defined in the Program Amendment Agreement) to reflect, among other things,
the direct ownership of the Receivables and related Collateral Security by the
Trust and the grant of a security interest therein by the Trust to the Trustee
and (v) the execution and delivery by the parties hereto of this Agreement,
which shall contain, to the extent applicable, the sale and servicing
provisions of the Pooling and Servicing Agreement (and the Series 2002-CC
Supplement).
NOW THEREFORE, in consideration of the mutual agreements herein
contained, each party agrees as follows for the benefit of the other parties
hereto:
ARTICLE I
Definitions
SECTION 1.01 Definitions.
Whenever used in this Agreement, the following words and phrases
shall have the following meanings:
"Account" shall mean each Existing Account and, from and after the
related Addition Date, each Additional Account. The term "Account" shall not
apply to any Removed Accounts reassigned or assigned to the Seller or the
Servicer in accordance with the terms of this Agreement.
"Addition Date" shall mean, with respect to Additional Accounts, the
date from and after which such Additional Accounts are to be included as
Accounts pursuant to Section 2.05(c).
"Addition Notice" shall have the meaning specified in Section
2.05(c).
"Additional Account" shall mean each individual wholesale financing
account established by DCS with a Dealer pursuant to a Floorplan Financing
Agreement, which account is designated pursuant to Section 2.05(a) or (b) to
be included as an Account and is identified in the computer file or microfiche
or written list delivered to the Trust and the Trustee by the Seller pursuant
to Sections 2.01 and 2.05(d).
"Additional Cut-Off Date" shall mean, with respect to Additional
Accounts, the day specified in the Addition Notice delivered with respect to
such Additional Accounts pursuant to Section 2.05(c).
"Adjustment Payment" shall have the meaning specified in Section
3.09.
"Affiliate" shall mean, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" shall mean, with respect to any Series, the Person so
designated in the related Indenture Supplement.
"Aggregate Series Nominal Liquidation Amount" shall mean, at any
time of determination, an amount equal to the sum of the Series Nominal
Liquidation Amounts for all Series of Notes at such time (in each case, after
giving effect to the allocations, distributions, withdrawals and deposits to
be made at such time).
"Aggregate Series Servicing Fee" shall have the meaning specified in
Section 3.02.
"Agreement" shall mean this Sale and Servicing Agreement, as the
same may from time to time be amended, modified or otherwise supplemented.
"Assignment" shall have the meaning specified in Section 2.05(d).
"Assignment and Assumption Agreement" shall mean an agreement among
the Seller, the Designated Affiliate and the Trust, which shall be
acknowledged and agreed to by the Trustee, substantially in the form of
Exhibit K.
"Automatic Additional Accounts" shall have the meaning specified in
Section 2.05(f).
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"Automatic Removal Date" shall have the meaning specified in Section
2.07(g).
"Automatic Removed Accounts" shall have the meaning specified in
Section 2.07(g).
"Business Day" shall mean, unless otherwise specified in the
Indenture Supplement for any Series or Class of Notes, any day other than (a)
a Saturday or a Sunday or (b) any other day on which national banking
associations or state banking institutions in New York, New York or
Wilmington, Delaware, are authorized or obligated by law, executive order or
governmental decree to be closed.
"CARCO" shall mean Chrysler Auto Receivables Company, a Delaware
corporation, and its successors in interest.
"CARCO Certificate" shall mean the certificate issued to the
"Seller" (under and as defined in the Pooling and Servicing Agreement) by the
CARCO Trust pursuant to the Pooling and Servicing Agreement.
"CARCO Collection Account" shall mean the "Collection Account"
established and maintained in the name of the CARCO Trust Trustee pursuant to
Section 4.02 of the Pooling and Servicing Agreement. Pursuant to Section 6(a)
of the Program Amendment Agreement, on the Effective Date or promptly
thereafter, the CARCO Trust Trustee shall (i) liquidate all the investments
then credited to the CARCO Collection Account, (ii) transfer all such
liquidation proceeds, together with any other monies then on deposit in the
CARCO Collection Account, to the Collection Account and (iii) shall terminate
the CARCO Collection Account.
"CARCO Excess Funding Account" shall mean the "Excess Funding
Account" established and maintained in the name of the CARCO Trust Trustee
pursuant to Section 4.02 of the Series 2002-CC Supplement. Pursuant to Section
6(b) of the Program Amendment Agreement, on the Effective Date or promptly
thereafter, the CARCO Trust Trustee shall (i) liquidate all the investments
then credited to the CARCO Excess Funding Account, (ii) transfer all such
liquidation proceeds, together with any other monies then on deposit in the
CARCO Excess Funding Account, to the Excess Funding Account and (iii) shall
terminate the CARCO Excess Funding Account.
"CARCO Trust" shall mean the CARCO Auto Loan Master Trust governed
under the Pooling and Servicing Agreement.
"CARCO Trust Trustee" shall mean The Bank of New York, a New York
banking corporation, in its capacity as "Trustee" under the Pooling and
Servicing Agreement. The Bank of New York is the successor CARCO Trust Trustee
under the Pooling and Servicing Agreement to Manufacturers and Traders Trust
Company.
"Cash Management Accounts" shall mean the deposit accounts
maintained by DCS for the benefit of the Dealers.
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"CCC" shall mean Chrysler Credit Corporation, a Delaware
corporation, and its successors in interest. As of the date of this Agreement,
DCS is the indirect successor in interest to CCC.
"CFC" shall mean Chrysler Financial Company L.L.C., a Michigan
limited liability company, and its successors in interest. As of the date of
this Agreement, DCS is the successor in interest to CFC.
"CFC Corp." shall mean Chrysler Financial Corporation, a Michigan
corporation, and its successors in interest. As of the date of this Agreement,
DCS is the indirect successor in interest to CFC Corp.
"Class" shall mean, with respect to any Series, any one of the
classes of Notes of that Series.
"Closing Date" shall mean, with respect to any Series, the "Issuance
Date" for such Series, as specified in the related Indenture Supplement.
"Collateral" shall have the meaning specified in the Indenture.
"Collateral Certificate" shall mean the Auto Loan Asset Backed
Certificates, Series 2002-CC issued by the CARCO Trust pursuant to the Pooling
and Servicing Agreement, as supplemented by the Series 2002-CC Supplement.
"Collateral Security" shall mean, with respect to any Receivable,
all collateral security granted by or on behalf of the related Dealer with
respect thereto, including a first priority perfected security interest in the
related Vehicle, certain parts inventory, equipment, fixtures, service
accounts, chattel paper, instruments, franchise rights or realty with respect
to such Dealer and all guarantees of any Receivable.
"Collection Account" shall mean the "Collection Account" established
and maintained in the name of the Trustee pursuant to Section 402(a) of the
Indenture.
"Collection Period" shall mean, with respect to any Payment Date,
the calendar month preceding the month in which such Payment Date occurs.
"Collections" shall mean, without duplication, all payments by or on
behalf of Dealers received by the Servicer in respect of the Receivables, in
the form of cash, checks, wire transfers or any other form of payment,
including amounts paid by Dealers for deposit to such Dealers' cash management
account and such Dealer's wholesale deposit account as provided in such
Dealers' Floorplan Financing Agreements. Collections of Non-Principal
Receivables shall include all Recoveries.
"Corporate Trust Office" shall have, with respect to the Trustee,
the meaning specified in the Indenture.
"DaimlerChrysler" shall mean DaimlerChrysler Corporation, a Delaware
corporation, and its successors in interest. As of the date of this Agreement,
DaimlerChrysler is
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the successor in interest to Chrysler Corporation. References to
DaimlerChrysler include its predecessor, Chrysler Corporation.
"Date of Processing" shall mean, with respect to any transaction,
the date on which such transaction is first recorded on the Servicer's
computer file of accounts (without regard to the effective date of such
recordation).
"DCMOT Certificate" shall mean the certificate, substantially in the
form attached as Exhibit B to the Trust Agreement, issued by the Trust
pursuant to Article X of the Trust Agreement.
"DCS" shall mean DaimlerChrysler Services North America LLC, a
Michigan limited liability company, and its successors in interest. DCS is the
successor by merger to CFC, a Michigan limited liability company, which itself
was the successor by merger to CFC Corp., a Michigan corporation, which itself
was the successor by merger to CCC. References in this Agreement to DCS will
include, as appropriate, references to CFC, CFC Corp. or CCC. By way of
example and not limitation of the preceding sentence, the phrase "an account
originated by DCS" will, unless otherwise expressly specified, include an
account originated by CCC, CFC Corp. or CFC, as appropriate.
"DCWR" shall mean DaimlerChrysler Wholesale Receivables LLC, a
Delaware limited liability company, and its successors in interest.
"Dealer" shall mean a Person engaged generally in the business of
purchasing Vehicles from a manufacturer thereof and holding such Vehicles for
sale or lease in the ordinary course of business.
"Dealer Overconcentration" on any Determination Date shall mean,
with respect to any Dealer or group of affiliated Dealers, the excess of (a)
the aggregate of all amounts of Principal Receivables due from such Dealer or
group of affiliated Dealers on the last day of the Collection Period
immediately preceding such Determination Date over (b) 2% of the Pool Balance
on the last day of such immediately preceding Collection Period; provided,
however, that the percentage specified in clause (b) shall be 4% in the case
of either AutoNation, Inc. and its affiliates or United Auto Group, Inc. and
its affiliates; provided, further, that the Seller may, upon 10 days' prior
notice to the Trustee and each Rating Agency and upon satisfaction of the
Rating Agency Condition, increase the percentage specified in clause (b)
(including, for the avoidance of doubt, the percentage specified in the
immediately preceding proviso).
"Dealer Trouble Status" shall mean, with respect to an Account, that
any of the following circumstances apply to such Account: (i) the related
Dealer has failed to remit any principal or interest due on a Receivable in
such Account when due; (ii) the Servicer has been notified of any liens,
levies or attachments on the related Collateral Security or (iii) the related
Dealer has experienced a general deterioration of its financial condition as
determined by the Servicer.
"Defaulted Amount" on any Determination Date shall mean an amount
(which shall not be less than zero) equal to (a) the sum for all the Accounts
of the amount of Principal Receivables which became Defaulted Receivables
during the immediately preceding Collection
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Period minus (b) the sum of (i) the full amount of any such Defaulted
Receivables which are subject to reassignment or assignment to the Seller or
the Servicer in accordance with the terms of this Agreement and (ii) the
excess, if any, for the immediately preceding Determination Date of the amount
determined pursuant to this clause (b) for such Determination Date over the
amount determined pursuant to clause (a) for such Determination Date;
provided, however, that, if an Insolvency Event occurs with respect to the
Seller, the amounts of such Defaulted Receivables which are subject to
reassignment to the Seller shall not be added to the sum so subtracted and, if
an Insolvency Event occurs with respect to the Servicer, the amount of such
Defaulted Receivables which are subject to assignment to the Servicer shall
not be added to the sum so subtracted.
"Defaulted Receivables" on any Determination Date shall mean (a) all
Receivables in an Account which are charged off as uncollectible in respect of
the immediately preceding Collection Period in accordance with the Servicer's
customary and usual servicing procedures for servicing Dealer floorplan
receivables comparable to the Receivables which have not been sold to third
parties and (b) all Receivables which were Eligible Receivables when
transferred to the Trust (or to the CARCO Trust if such Receivables were
initially transferred to the CARCO Trust), which arose in an Account that
thereafter became an Ineligible Account and which remained outstanding for any
six consecutive Determination Dates (inclusive of the Determination Date on
which such determination is being made) after such Account became an
Ineligible Account.
"Deposit Date" shall mean each day on which the Servicer deposits
Collections in the Collection Account pursuant to Section 4.03.
"Designated Account" shall have the meaning specified in Section
2.07(b).
"Designated Affiliate" shall mean a corporation or limited liability
company which is (a) a direct or indirect wholly-owned subsidiary of DCS, (b)
which is a corporation or limited liability company, and (c) which is formed
for limited purposes which shall be substantially the same purposes for which
CARCO is formed.
"Designated Affiliate Transfer" shall have the meaning specified in
Section 7.04(a).
"Designated Balance" shall have the meaning specified in Section
2.07(b).
"Designated Receivables" shall have the meaning specified in Section
2.07(c).
"Determination Date" with respect to any Payment Date shall mean the
day that is two Business Days prior to such Payment Date.
"DTS Account" shall have the meaning specified in Section 2.07(f).
"DTS Designated Balance" shall have the meaning specified in Section
2.07(f).
"DTS Removal Commencement Date" shall have the meaning specified in
Section 2.07(f).
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"DTS Removal Date" shall have the meaning specified in Section
2.07(f).
"Due Date" shall mean the close of business on the last Business Day
of each month.
"Early Redemption Event" shall have the meaning specified in the
Indenture.
"Effective Date" shall mean the date of this Agreement.
"Eligible Account" shall mean each individual wholesale financing
account originated by DCS with a Dealer pursuant to a Floorplan Financing
Agreement in the ordinary course of business, which, as of the date of
determination with respect thereto: (a) is in favor of a Dealer which is an
Eligible Dealer, (b) is in existence and maintained and serviced by DCS and
(c) is an Account in respect of which no amounts have been charged off as
uncollectible or are classified as past due or delinquent.
"Eligible Dealer" shall mean a Dealer, as of the date of
determination thereof, (a) which is located in the United States of America
(including its territories and possessions), (b) which has not been identified
by the Servicer as being the subject of any voluntary or involuntary
bankruptcy proceeding or in voluntary or involuntary liquidation, (c) in which
DaimlerChrysler or any Affiliate thereof does not have an equity investment
and (d) which is not in "dealer trouble status" as determined by the Servicer
under the Floorplan Financing Guidelines.
"Eligible Receivable" shall mean each Receivable:
(a) which was originated or acquired by DCS in the ordinary course
of business; provided, however, that if such Receivable was acquired by
DCS from a Person that is not DaimlerChrysler or any of its Affiliates,
such Receivable shall have satisfied the Rating Agency Condition;
(b) which has arisen under an Eligible Account and is payable in
United States dollars;
(c) which is owned by DCS at the time of sale to the Seller;
(d) which represents the obligation of a Dealer to repay an advance
made to such Dealer to finance the acquisition of Vehicles;
(e) which at the time of creation and at the time of transfer to the
Trust (or if such Receivable was initially transferred to the CARCO
Trust, at the time of transfer to the CARCO Trust) is secured by, inter
alia, a first priority perfected security interest in the Vehicle
relating thereto;
(f) which was created in compliance in all respects with all
Requirements of Law applicable thereto and pursuant to a Floorplan
Financing Agreement which complies in all respects with all Requirements
of Law applicable to any party thereto;
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(g) with respect to which all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any
Governmental Authority required to be obtained, effected or given by
DaimlerChrysler, DCS or the Seller in connection with the creation of
such Receivable or the transfer thereof to the Trust (or to the CARCO
Trust if such Receivable was initially transferred to the CARCO Trust) or
the execution, delivery and performance by DCS of the Floorplan Financing
Agreement pursuant to which such Receivable was created, have been duly
obtained, effected or given and are in full force and effect;
(h) as to which at all times following the transfer of such
Receivable to the Trust (or to the CARCO Trust if such Receivable was
initially transferred to the CARCO Trust), the Trust or the CARCO Trust,
as applicable, will have good and marketable title thereto free and clear
of all Liens arising prior to the transfer or arising at any time, other
than Liens permitted by this Agreement;
(i) which (1) if originally transferred to the CARCO Trust, has been
the subject of a valid transfer and assignment from the Seller to the
CARCO Trust and from the CARCO Trust to the Trust of all the Seller's
right, title and interest in such Receivable (including any proceeds
thereof) and (2) if directly sold by the Seller to the Trust, has been
the subject of a valid transfer and assignment from the Seller to the
Trust of all the Seller's right, title and interest in such Receivable
(including any proceeds thereof);
(j) which will at all times be the legal, valid, binding and
assignable payment obligation of the Dealer relating thereto, enforceable
against such Dealer in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws, now or hereafter in
effect, affecting the enforcement of creditors' rights in general and
except as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity);
(k) which at the time of transfer to the Trust (or to the CARCO
Trust if such Receivable was initially transferred to the CARCO Trust) is
not subject to any right of rescission, setoff, counterclaim or any other
defense (including defenses arising out of violations of usury laws) of
the Dealer;
(l) as to which, at the time of transfer of such Receivable to the
Trust (or to the CARCO Trust if such Receivable was initially transferred
to the CARCO Trust), DaimlerChrysler, DCS and the Seller have satisfied
all their respective obligations with respect to such Receivable required
to be satisfied at such time;
(m) as to which, at the time of transfer of such Receivable to the
Trust (or to the CARCO Trust if such Receivable was initially transferred
to the CARCO Trust), neither DaimlerChrysler, DCS nor the Seller has
taken nor failed to take any action which would impair the rights of the
Trust or the Noteholders therein;
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(n) which constitutes "tangible chattel paper" or an "account" or
"payment intangible", each as defined in Article 9 of the UCC as then in
effect in the State of Michigan; and
(o) with respect to which the representations set forth in Sections
2.04(a)(i) and (ii) were correct at the time of transfer of such
Receivable to the Trust (or to the CARCO Trust if such Receivable was
initially transferred to the CARCO Trust).
"Eligible Servicer" shall mean the Trustee or an entity which, at
the time of its appointment as Servicer, (a) is legally qualified and has the
capacity to service the Accounts, (b) in the sole determination of the
Trustee, which determination shall be conclusive and binding, has demonstrated
the ability to professionally and competently service a portfolio of similar
accounts in accordance with high standards of skill and care and (c) is
qualified to use the software that is then currently being used to service the
Accounts or obtains the right to use or has its own software which is adequate
to perform its duties under this Agreement.
"Enhancement" shall mean the rights and benefits provided to the
Noteholders of any Series or Class pursuant to any letter of credit, surety
bond, cash collateral account, spread account, guaranteed rate agreement,
maturity liquidity facility, tax protection agreement, interest rate swap
agreement or other similar arrangement. The subordination of any Series or
Class to any other Series or Class, or of the Overcollateralization Amount to
any Series or Class, shall each be an Enhancement.
"Enhancement Agreement" shall mean any agreement, instrument or
document governing the terms of any Enhancement or pursuant to which any
Enhancement is issued or outstanding. A "Derivative Agreement" (as defined in
the Indenture) shall be an Enhancement Agreement; but an Indenture Supplement
that provides for the terms of an Overcollateralization Amount shall not be an
Enhancement Agreement.
"Enhancement Provider" shall mean the Person providing any
Enhancement, other than any Noteholders the Notes of which are subordinated to
any Series or Class. A "Derivative Counterparty" (as defined in the Indenture)
shall be an Enhancement Provider; but there shall not be an Enhancement
Provider with respect to an Overcollateralization Amount.
"Excess Available Principal Amounts" shall mean, with respect to any
Payment Date, the sum of all Shared Excess Available Principal Amounts for all
Series of Notes that are not required for payment or deposit into an account
under the Indenture Supplement for any Series on such Payment Date.
"Excess Funding Account" shall mean the "Excess Funding Account"
established and maintained in the name of the Trustee pursuant to Section
402(b) of the Indenture.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Existing Account" shall mean each individual wholesale financing
account originated by DCS with a Dealer pursuant to a Floorplan Financing
Agreement which is identified in the computer file or microfiche or written
list delivered to the Trust and the Trustee on the Effective Date by the
Seller pursuant to Section 2.01.
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"Fleet Receivables" shall mean all amounts shown in special accounts
on the Servicer's records as amounts payable by any Dealer designated by DCS
as a "fleet dealer" in respect of advances made by DCS to such Dealer or
advances made by DaimlerChrysler to such Dealer and purchased by DCS, in each
case to finance the acquisition of Vehicles in lots of five or more.
"Floorplan Financing Agreement" shall mean, collectively, the group
of related agreements between and among DCS, the Dealer with respect thereto
and, in the case of new Vehicles, a Vehicle manufacturer, pursuant to which
(a) DCS agrees to extend credit to such Dealer to finance the acquisition of
used Vehicles and new Vehicles manufactured by such manufacturer, (b) such
Dealer grants to DCS a security interest in the specific Vehicles financed by
DCS, certain other Vehicles, certain other collateral and the proceeds
thereof, (c) such Dealer agrees to repay advances made by DCS on demand but in
any event such Dealer agrees to repay not less than 90% of each such advance
upon the sale of the Vehicle to which such advance relates and the remaining
balance of such advance not later than the tenth day of the second calendar
month following the month in which such sale occurs, and (d) the obligations
of such Dealer to repay such advances is evidenced by one or more demand
promissory notes of such Dealer.
"Floorplan Financing Guidelines" shall mean DCS's written policies
and procedures, as such policies and procedures may be amended from time to
time, (a) relating to the operation of its floorplan financing business,
including the written policies and procedures for determining the interest
rate charged to Dealers, the other terms and conditions relating to DCS's
wholesale financing accounts, the creditworthiness of Dealers and the
extension of credit to Dealers, and (b) relating to the maintenance of
accounts and collection of receivables.
"Governmental Authority" shall mean the United States of America,
any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Indenture" shall mean the Amended and Restated Indenture, dated as
of December 16, 2004, between the Trust and the Trustee, as amended and
supplemented from time to time.
"Indenture Supplement" shall mean any supplement to the Indenture
pursuant to which a Series of Notes is issued, as amended and supplemented
from time to time.
"Ineligible Account" shall mean an Account that at the time of
determination is not an Eligible Account.
"Ineligible Amount" on any Determination Date shall mean the amount
of Ineligible Receivables included in the Trust on such Determination Date
pursuant to Section 2.09.
"Ineligible Receivable" shall mean any Receivable that arises in an
Eligible Account, was not an Eligible Receivable at the time of its transfer
to the Trust and was transferred to the Trust in accordance with Section 2.09.
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"Initial Cut-Off Date" shall mean November 30, 2004.
"Insolvency Event" shall mean, with respect to any specified Person:
(a) such Person shall file a petition commencing a voluntary case
under any chapter of the Federal bankruptcy laws; or such Person shall file a
petition or answer or consent seeking reorganization, arrangement, adjustment
or composition under any other similar applicable Federal law, or shall
consent to the filing of any such petition, answer or consent; or such Person
shall appoint, or consent to the appointment of, a custodian, receiver,
liquidator, trustee, assignee, sequestrator or other similar official in
bankruptcy or insolvency of it or of any substantial part of its property; or
such Person shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due;
or
(b) any order for relief against such Person shall have been entered
by a court having jurisdiction in the premises under any chapter of the
Federal bankruptcy laws, and such order shall have continued undischarged or
unstayed for a period of 60 days; or a decree or order by a court having
jurisdiction in the premises shall have been entered approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of such Person under any other similar applicable Federal law, and
such decree or order shall have continued undischarged or unstayed for a
period of 120 days; or a decree or order of a court having jurisdiction in the
premises for the appointment of a custodian, receiver, liquidator, trustee,
assignee, sequestrator or other similar official in bankruptcy or insolvency
of such Person or of any substantial part of its property, or for the winding
up or liquidation of its affairs, shall have been entered, and such decree or
order shall have remained in force undischarged or unstayed for a period of
120 days.
"Insurance Proceeds" with respect to an Account shall mean any
amounts received by the Servicer pursuant to any policy of insurance which is
required to be paid to DCS pursuant to a Floorplan Financing Agreement.
"Interest Collections" shall mean (i) Collections of interest and
other nonprincipal charges (including insurance service fees, handling fees,
Recoveries and Insurance Proceeds) and (ii) any interest and earnings (net of
losses and investment expenses) on funds on deposit in the Collection Account.
"Internal Revenue Code" shall mean the Internal Revenue Code of
1986, as amended.
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory
or other), preference, participation interest, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever,
including any conditional sale or other title retention agreement and any
financing lease having substantially the same economic effect as any of the
foregoing.
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"Miscellaneous Payments" shall mean, with respect to any Collection
Period, the sum of (a) Adjustment Payments and Transfer Deposit Amounts on
deposit in the Collection Account on the related Payment Date and (b)
Unallocated Principal Collections available to be treated as Miscellaneous
Payments pursuant to Section 4.07 on such Payment Date.
"Monthly Payment Rate" shall mean, for any Collection Period, the
percentage derived from dividing the Principal Collections for such Collection
Period by the average daily Pool Balance for such Collection Period.
"Monthly Servicing Fee Rate" shall mean 1/12 of 1% per month, or
such lesser percentage as the Servicer shall determine in connection with a
waiver by the Servicer of all or any portion of the Servicing Fee on any date.
The annual servicing fee rate is 1%.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., or its
successor.
"Nominal Liquidation Amount" shall mean, with respect to any Series
or Class of Notes, the amount specified as such in the related Indenture
Supplement.
"Non-Principal Receivables" with respect to any Account shall mean
all amounts billed to the related Dealer in respect of interest and all other
non-principal charges, including insurance service fees and handling fees.
"Note" or "Notes" shall mean any note or notes of any Series or
Class authenticated and delivered from time to time under the Indenture.
"Noteholder" or "Holder" shall have the meaning specified in the
Indenture.
"Noteholders' Interest" shall have the meaning specified in Section
4.01.
"Note PFA Earnings Shortfall" shall mean, with respect to each
Payment Date, the sum of the "PFA Earnings Shortfalls" for all Series of Notes
as calculated under the related Indenture Supplements.
"Note Rating Agency" shall have the meaning specified in the
Indenture.
"Notice Date" shall have the meaning specified in Section 2.05(c).
"Officers' Certificate" with respect to any corporation or limited
liability company shall mean, unless otherwise specified in this Agreement, a
certificate signed by (a) the Chairman of the Board, Vice Chairman of the
Board, President or any Vice President and (b) a Treasurer, Assistant
Treasurer, Secretary or Assistant Secretary of such corporation or limited
liability company.
"Opinion of Counsel" shall mean a written opinion of counsel, who
may be counsel of the Seller or DCS and who shall be reasonably acceptable to
the Trustee.
"Outstanding Dollar Principal Amount" shall mean, with respect to
any Series or Class of Notes, the amount specified as such in the related
Indenture Supplement.
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"Overcollateralization Amount" shall mean, with respect to any
Series, the amount specified as such in the related Indenture Supplement. For
the avoidance of doubt, unless otherwise specified in the related Indenture
Supplement, the Overcollateralization Amount for any Series shall equal the
sum of the "Primary Overcollateralization Amount" for such Series (as defined
in the related Indenture Supplement) plus the "Incremental
Overcollateralization Amount" for such Series (as defined in the related
Indenture Supplement).
"Overconcentration Amount" on any Determination Date shall mean the
sum of the Dealer Overconcentrations on such Determination Date.
"Overconcentration Default Amount" on any Determination Date shall
mean, with respect to each Dealer or group of affiliated Dealers with respect
to which there existed a Dealer Overconcentration during the immediately
preceding Collection Period, the lesser of (a) the aggregate amount of
Receivables in the Accounts of such Dealers which became Defaulted Receivables
during such Collection Period and (b) the aggregate amount of such Dealer
Overconcentrations on such Determination Date.
"Owner Trustee" shall mean Chase Manhattan Bank USA, National
Association, a national banking association, in its capacity as "Owner
Trustee" under the Trust Agreement, and any successor thereto in such capacity
under the Trust Agreement.
"Partial Account" shall mean any Account pursuant to which any
Purchased Receivables have arisen.
"Payment Date" shall mean the fifteenth day of each month or, if
such day is not a Business Day, the next succeeding Business Day.
"Permitted Transaction" shall have the meaning specified in Section
2.06(f).
"Person" shall mean any individual, corporation, estate,
partnership, limited liability company, limited liability partnership, joint
venture, association, joint-stock company, business trust, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Pool Balance" shall mean, as of the time of determination thereof,
the aggregate of Principal Receivables in the Trust at such time.
"Pooling and Servicing Agreement" shall have the meaning specified
in the recitals of this Agreement.
"Prime Rate" shall mean the rate designated as the "prime rate" from
time to time by certain financial institutions selected by DCS.
"Principal Collections" shall mean all Collections of Principal
Receivables.
"Principal Receivables" with respect to an Account shall mean
amounts shown on the Servicer's records as Receivables (other than such
amounts which represent Non-Principal Receivables) payable by the related
Dealer. Notwithstanding anything to the contrary in this
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Agreement, (i) Purchased Receivables and Fleet Receivables shall not be deemed
to be Principal Receivables for the purposes of this Agreement and (ii) the
amount of Principal Receivables on any date of determination for all purposes
of this Agreement shall be deemed to be the actual amount thereof at such time
minus the aggregate amount on deposit at such time in the Cash Management
Accounts maintained for the benefit of the related Dealers.
"Program Amendment Agreement" shall have the meaning specified in
the recitals of this Agreement.
"Purchased Assets" shall have the meaning specified in Section
2.01(a).
"Purchased Receivables" shall mean, with respect to an Existing
Account or Additional Account, the principal amounts shown on the Servicer's
records as amounts payable by the related Dealer (and interest accrued
thereon), from time to time in respect of advances made by DCS to such Dealer
prior to the Initial Cut-Off Date or the applicable Additional Cut-Off Date,
as the case may be, or advances made by DaimlerChrysler to such Dealer and
purchased by DCS prior to the Initial Cut-Off Date or the applicable
Additional Cut-Off Date, as the case may be, in each case to finance the
acquisition of Vehicles by such Dealer, in which an interest has been sold,
transferred, assigned or otherwise conveyed by DCS prior to the Initial
Cut-Off Date or the applicable Additional Cut-Off Date, as the case may be, to
any Person other than DCWR, CARCO or the Trust.
"Purchased Receivables Owners" shall mean any Person that has
acquired an interest in any Purchased Receivable other than DCS.
"Purchase Price" shall mean, with respect to any Receivable for any
date on which such Receivable is to be purchased pursuant to Section 3.03, (a)
an amount equal to the amount payable by the Dealer in respect thereof as
reflected in the records of the Servicer as of the date of purchase plus (b)
interest accrued from the end of the last Collection Period in respect of
which interest on such Receivable was billed by the Servicer, at a per annum
rate of the Prime Rate plus 1.00%, based on the actual number of days elapsed
over a year of 360 days.
"Rating Agency" shall mean, with respect to any outstanding Series
or Class, each statistical rating agency selected by the Seller to rate the
Notes of such Series or Class. Notwithstanding anything to the contrary in
this Agreement, the term "Rating Agency" shall mean, whenever used in this
Agreement, Moody's and Standard & Poor's; provided, however, that any notice
required to be given to a Rating Agency pursuant to this Agreement shall also
be given to Fitch, Inc. (together with its successors, "Fitch"), although
Fitch shall not be deemed to be a Rating Agency for any purposes of this
Agreement.
"Rating Agency Condition" shall mean, with respect to any action,
that each Rating Agency shall have notified the Seller, the Servicer and the
Trustee in writing that such action will not result in a reduction or
withdrawal of the rating of any outstanding Series or Class with respect to
which it is a Rating Agency.
"Ratings Effect" shall have the meaning specified in the Indenture.
"Reassignment" shall have the meaning specified in Section 2.07(c).
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"Reassignment Amount" shall mean, with respect to any Payment Date,
after giving effect to any deposits and distributions otherwise to be made on
such Payment Date, the sum of (a) the Aggregate Series Nominal Liquidation
Amount on such Payment Date and (b) accrued and unpaid interest on the
Outstanding Dollar Principal Amount of all of the Notes through the day
preceding such Payment Date.
"Receivables" shall mean, with respect to an Account, all amounts
shown on the Servicer's records as amounts payable by the related Dealer, from
t ime to time in respect of advances made by DCS to such Dealer or advances
made by DaimlerChrysler to such Dealer and purchased by DCS, in each case to
finance the acquisition of Vehicles by such Dealer, together with the group of
writings evidencing such amounts and the security interest created in
connection therewith. Receivables which become Defaulted Receivables shall not
be shown on the Servicer's records as amounts payable (and will cease to be
included as Receivables) on the day on which they become Defaulted
Receivables. Receivables which DCS is unable to transfer to the Seller
pursuant to the Receivables Purchase Agreement or which the Seller is, unable
to transfer to the Trust as provided in Section 2.06(b) and Receivables which
arise in Designated Accounts from and after the related Removal Commencement
Date shall not be included in calculating the amount of Receivables.
Notwithstanding anything to the contrary in this Agreement, Purchased
Receivables and Fleet Receivables shall not be deemed to be Receivables for
the purposes of this Agreement.
"Receivables Purchase Agreement" shall mean the Second Amended and
Restated Receivables Purchase Agreement, dated as of December 16, 2004,
between DCS and DCWR, as amended and supplemented from time to time.
"Recoveries" on any Determination Date shall mean all amounts
received, including Insurance Proceeds, by the Servicer during the Collection
Period immediately preceding such Determination Date with respect to
Receivables which have previously become Defaulted Receivables.
"Related Documents" shall mean, collectively, the Receivables
Purchase Agreement, the Subordinated Note, the Trust Agreement and the DCMOT
Certificate.
"Removal and Repurchase Date" shall have the meaning specified in
Section 2.07(c).
"Removal and Repurchase Notice Date" shall have the meaning
specified in Section 2.07(c).
"Removal Commencement Date" shall have the meaning specified in
Section 2.07(b).
"Removal Date" shall have the meaning specified in Section 2.07(b).
"Removal Notice" shall have the meaning specified in Section
2.07(b).
"Removed Account" shall have the meaning specified in Section
2.07(d), 2.07(f) or 2.08(c), as applicable.
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"Repurchased Receivables Purchase Price" shall have the meaning
specified in Section 2.07(c).
"Required Participation Amount" shall mean, at any time of
determination, an amount equal to (a) the sum of the amounts for each Series
of Notes obtained by multiplying the Required Participation Percentage for
such Series by the Nominal Liquidation Amount of such Series of Notes at such
time plus (b) the sum of the Overcollateralization Amounts for all outstanding
Series of Notes on the immediately preceding Determination Date (after giving
effect to the allocations, distributions, withdrawals and deposits to be made
on the Payment Date following such Determination Date).
"Required Participation Percentage" shall mean, with respect to any
Series, unless otherwise specified in the related Indenture Supplement, 103%;
provided, however, that if either (a) the aggregate amount of Principal
Receivables due from either AutoNation, Inc. and its affiliates or United Auto
Group, Inc. and its affiliates at the close of business on the last day of any
Collection Period with respect to which such determination is being made
pursuant to Section 3.10 is greater than 4% of the Pool Balance on such last
day or (b) the aggregate amount of Principal Receivables due from any other
Dealer or group of affiliated Dealers at the close of business on the last day
of any Collection Period with respect to which such determination is being
made pursuant to Section 3.10 is greater than 1.5% of the Pool Balance on such
last day, the Required Participation Percentage shall mean, as of such last
day and with respect to such Collection Period and the immediately following
Collection Period only, 104%; provided, further, that the Seller may, upon 10
days' prior notice to the Trustee and each Rating Agency and upon satisfaction
of the Rating Agency Condition, reduce the Required Participation Percentage
to a percentage which shall not be less than 100%.
"Requirements of Law" for any Person shall mean the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or Governmental Authority, in each case applicable to or binding
upon such Person or to which such Person is subject, whether Federal, state or
local (including usury laws and the Federal Truth in Lending Act).
"Secured Party" shall mean any "Secured Party" as defined in the
Indenture. For the avoidance of doubt, unless otherwise specified in the
Indenture or any Indenture Supplement, the Secured Parties under the Indenture
shall be the Noteholders and the Enhancement Providers.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Seller" shall mean DCWR and its successors in interest to the
extent permitted hereunder.
"Seller's Certificates" shall mean, collectively, the DCMOT
Certificate and any outstanding Supplemental Certificates. The Seller's
Certificates shall, in the aggregate, evidence 100% of the Seller's Interest.
As of the date hereof, the DCMOT Certificate is the sole Seller's Certificate.
"Seller's Interest" shall have the meaning specified in Section
4.01.
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"Seller's Interest Collections" shall have the meaning specified in
Section 4.04(a).
"Seller's Participation Amount" shall mean, at any time of
determination, an amount equal to the Pool Balance at such time minus the
Aggregate Series Nominal Liquidation Amount at such time.
"Seller's Percentage" shall mean, with respect to any Collection
Period, the percentage (not less than 0%) equal to 100% minus either (a) the
sum of the "Series Floating Allocation Percentages" for all Series of Notes
(as defined in the related Indenture Supplements) for such Collection Period,
when used with respect to allocations of Interest Collections or (b) the sum
of the "Series Principal Allocation Percentages" for all Series of Notes (as
defined in the related Indenture Supplements) for such Collection Period, when
used with respect to allocations of Principal Collections. For the avoidance
of doubt, the Seller's Percentage with respect to allocations of Miscellaneous
Payments shall be zero.
"Seller's Principal Collections" shall have the meaning specified in
Section 4.04(b).
"Series" shall mean any series of Notes.
"Series 2002-CC Supplement" shall mean the Series 2002-CC
Supplement, dated as of June 1, 2002, among DCWR, DCS and the CARCO Trust
Trustee.
"Series Account" shall mean any "Supplemental Account" as defined in
the Indenture.
"Series Allocation Percentage" shall mean, with respect to any
Series of Notes, (a) the "Series Floating Allocation Percentage" for such
Series of Notes (as defined in the related Indenture Supplement), when used
with respect to allocations of Interest Collections and Defaulted Amounts to
such Series and (b) the "Series Principal Allocation Percentage" for such
Series of Notes (as defined in the related Indenture Supplement), when used
with respect to allocations of Principal Collections to such Series, and (c)
the "Series Miscellaneous Allocation Percentage" for such Series of Notes (as
defined in the related Indenture Supplement), when used with respect to
allocations of Miscellaneous Payments to such Series.
"Series Cut-Off Date" shall mean, with respect to any Series, the
date specified as such in the related Indenture Supplement.
"Series Nominal Liquidation Amount" shall mean, with respect to any
Series, unless otherwise specified in the related Indenture Supplement, an
amount equal to the sum of the Nominal Liquidation Amount of the Notes of such
Series plus the Overcollateralization Amount for such Series.
"Service Default" shall have the meaning specified in Section 10.01.
"Service Transfer" shall have the meaning specified in Section
10.01.
17
"Servicer" shall initially mean DCS, in its capacity as Servicer
under this Agreement, and after any Service Transfer, the Successor Servicer.
"Servicing Fee" shall have the meaning specified in Section 3.02(a).
"Servicing Officer" shall mean any officer of the Servicer involved
in, or responsible for, the administration and servicing of the Receivables
whose name appears on a list of servicing officers furnished to the Trust and
the Trustee by the Servicer as such list may from time to time be amended.
"Shared Excess Available Principal Amount" shall mean, with respect
to any Series, the amount specified as such in the related Indenture
Supplement.
"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a
division of the ▇▇▇▇▇▇-▇▇▇▇ Companies Inc., or its successor.
"Subordinated Note" shall mean the subordinated note of the Seller
the form of which is attached hereto as Exhibit J.
"Successor Servicer" shall have the meaning specified in Section
10.02(a).
"Supplemental Certificate" shall mean any certificate issued by the
Trust pursuant to Section 10.10 of the Trust Agreement.
"Tax Opinion" shall mean, with respect to any action, an Opinion of
Counsel to the effect that, for Federal income and Michigan state income and
single business tax purposes, (a) other than in the case of a Designated
Affiliate Transfer, such action will not adversely affect the characterization
of the Notes of any outstanding Series or Class as debt of DCWR (or, in the
case of Section 7.04(b)(iv), following a Designated Affiliate Transfer, the
Notes of all outstanding Series will be characterized as debt of the
Designated Affiliate) and (b) such action will not cause or constitute a
taxable event with respect to any Noteholders or the Trust.
"Transaction Documents" shall mean this Agreement, the Receivables
Purchase Agreement, the Trust Agreement, the Administration Agreement, the
Indenture, the Indenture Supplements, and the underwriting, placement and/or
purchase agreements with respect to the Notes, together with all such other
documents and certificates delivered in connection herewith or therewith.
"Transfer Date" shall have the meaning specified in Section 2.01(b).
"Transfer Deposit Amount" shall mean, with respect to any Receivable
reassigned or assigned to the Seller or the Servicer, as applicable, pursuant
to Section 2.04(c) or Section 3.03, the amounts specified in such Sections.
"Trust" shall mean the DaimlerChrysler Master Owner Trust governed
pursuant to the Trust Agreement.
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"Trust Agreement" shall mean the Amended and Restated Trust
Agreement, dated as of December 16, 2004, between DCWR and the Owner Trustee,
as amended and supplemented from time to time.
"Trustee" shall mean The Bank of New York, a New York banking
corporation, in its capacity as "Indenture Trustee" under the Indenture, and
any successor thereto in such capacity under the Indenture.
"Trust Termination Date" shall mean the date on which the Trust
dissolves pursuant to Section 7.01 of the Trust Agreement.
"UCC" shall mean the Uniform Commercial Code, as amended from time
to time, as in effect in any specified jurisdiction.
"Unallocated Principal Collections" shall have the meaning specified
in Section 4.07.
"US Auto" shall mean U.S. Auto Receivables Company, a Michigan
corporation, and its successors in interest.
"Used Vehicle" shall mean any Vehicle held for sale by a Dealer that
is determined to be a "used" Vehicle in accordance with the Servicer's
standard wholesale servicing practices.
"Vehicle" shall mean an automobile or light-duty truck.
"Vice President" when used with respect to the Seller, Servicer and
DCS shall mean any vice president whether or not designated by a number or
word or words added before or after the title "vice president".
SECTION 1.02 Other Definitional Provisions.
(a) All capitalized terms used in this Agreement and not otherwise
defined herein shall have the meanings ascribed to them in the Trust
Agreement, the Indenture or, with respect to any Series, the related Indenture
Supplement, as applicable.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate
or other document to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting principles. To the
extent that the definitions of accounting terms in this Agreement or in any
such certificate or other document are inconsistent with the meanings of such
terms under generally accepted accounting principles,
19
the definitions contained in this Agreement or in any such certificate or
other document shall control.
(d) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section, Schedule
and Exhibit references contained in this Agreement are references to Sections,
Schedules and Exhibits in or to this Agreement unless otherwise specified; the
term "including" shall mean "including without limitation"; and the term "or"
is not exclusive.
(e) The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
ARTICLE II
Conveyance of Receivables
SECTION 2.01 Conveyance of Receivables.
(a) By execution of this Agreement, the Seller does hereby sell,
transfer, assign, set over and otherwise convey, without recourse (except as
expressly provided herein), to the Trust on the Effective Date, in the case of
the Existing Accounts, and on the applicable Addition Date, in the case of
Additional Accounts, (i) all of its right, title and interest in, to and under
the Receivables in each Account and all Collateral Security with respect
thereto owned by the Seller at the close of business on the Initial Cut-Off
Date, in the case of the Existing Accounts, and on the applicable Additional
Cut-Off Date, in the case of Additional Accounts, and all monies due or to
become due and all amounts received with respect thereto and all proceeds
(including Recoveries) thereof and (ii) all of the Seller's rights, remedies,
powers and privileges with respect to such Receivables under the Receivables
Purchase Agreement (collectively, the "Purchased Assets"). For the avoidance
of doubt, the parties hereto acknowledge and agree that the Receivables and
related Collateral Security sold and assigned by the Seller on the Effective
Date pursuant to this Section 2.01(a) include all the Receivables and related
Collateral Security originally sold and assigned by DCWR to the CARCO Trust on
or prior to the Effective Date pursuant to the Pooling and Servicing
Agreement, other than any such receivables and related collateral security
that have been repurchased in accordance with the Pooling and Servicing
Agreement, and the CARCO Trust has sold, transferred, assigned, set over and
otherwise conveyed such Receivables and Collateral Security to the Trust on
the Effective Date.
(b) As of each Business Day prior to the earlier of (i) the
occurrence of an Insolvency Event with respect to the Seller, the Servicer,
DCS or DaimlerChrysler and (ii) the Trust Termination Date, on which
Receivables are created in the Accounts (a "Transfer Date"), the Seller does
hereby sell, transfer, assign, set over and otherwise convey, without recourse
(except as expressly provided herein), to the Trust, all of its right, title
and interest in, to and under the Receivables in each Account (other than any
Receivables created in any Designated Account from and after the applicable
Removal Commencement Date) and all Collateral
20
Security with respect thereto owned by the Seller at the close of business on
such Transfer Date and not theretofore conveyed to the Trust, all monies due
or to become due and all amounts received with respect thereto and all
proceeds (including Recoveries) thereof. Such property, together with the
Collateral Security with respect thereto, shall collectively constitute part
of the Collateral of the Trust that will be pledged by the Trust to the
Trustee pursuant to the Indenture.
(c) The foregoing sale, transfer, assignment, set-over and
conveyance and any subsequent sales, transfers, assignments, set-overs and
conveyances do not constitute, and are not intended to result in, the creation
or an assumption by the Trust, the Owner Trustee, the Trustee, any Agent, any
Noteholder or any Enhancement Provider of any obligation of the Servicer, DCS,
the Seller, DaimlerChrysler or any other Person in connection with the
Accounts, the Receivables or under any agreement or instrument relating
thereto, including any obligation to any Dealers.
(d) In connection with such sales, the Seller agrees to record and
file, at its own expense, a financing statement on form UCC-1 (and
continuation statements when applicable) with respect to the Receivables now
existing and hereafter created for the sale of "tangible chattel paper",
"accounts" or "payment intangibles" (each as defined in Section 9-102 of the
UCC as in effect in the relevant jurisdiction) meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect the sale and assignment of the Receivables and the Collateral
Security to the Trust, and to deliver a file-stamped copy of such financing
statements or other evidence of such filing to the Trustee on or prior to the
Effective Date, in the case of the Existing Accounts, and (if any additional
filing is so necessary) the applicable Addition Date, in the case of
Additional Accounts. The Trustee shall be under no obligation whatsoever to
file such financing statement, or a continuation statement to such financing
statement, or to make any other filing under the UCC in connection with such
sales.
(e) In connection with such sales, the Seller further agrees, at its
own expense, on or prior to the Effective Date, in the case of the Existing
Accounts, the applicable Addition Date, in the case of Additional Accounts,
and the applicable Removal Commencement Date, in the case of Removed Accounts,
(x) to indicate in its computer files and to cause DCS to indicate in its
computer files as required by the Receivables Purchase Agreement, that the
Receivables created in connection with the Accounts (other than Removed
Accounts) have been sold, and the Collateral Security assigned, to the Seller
in accordance with the Receivables Purchase Agreement, and sold to the Trust
pursuant to this Agreement, and pledged by the Trust to the Trustee for the
benefit of the Noteholders and the other Secured Parties pursuant to the
Indenture and (y) to deliver to the Trust and the Trustee (or cause DCS to do
so) a computer file or microfiche or written list containing a true and
complete list of all such Accounts (other than Removed Accounts) specifying
for each such Account, as of the Initial Cut-Off Date, in the case of the
Existing Accounts, and the applicable Additional Cut-Off Date, in the case of
Additional Accounts, (i) its account number, (ii) the aggregate amount of
Receivables outstanding in such Account and (iii) the aggregate amount of
Principal Receivables in such Account. Such file, microfiche or list, as
amended and/or supplemented from time to time to reflect Additional Accounts
and Removed Accounts, shall be marked as Schedule 1 to this Agreement and is
hereby incorporated into and made a part of this Agreement and the Indenture.
The Trustee shall be under no obligation whatsoever to verify the accuracy or
completeness of the information contained in Schedule 1 from time to time.
21
(f) The parties hereto intend that the transfers of Purchased Assets
effected by this Agreement be sales. Nevertheless, if such transfers are
deemed to be transfers for security, then this Agreement also shall be deemed
to be and hereby is a security agreement within the meaning of the UCC, and
the conveyance by the Seller provided for in this Agreement shall also be
deemed to be and hereby is a grant by the Seller to the Trust of a security
interest in all of the Seller's right, title and interest, whether now owned
or hereafter acquired, in, to and under such Purchased Assets. For tax
purposes, the parties hereto intend that all transfers of Purchased Assets
under this Agreement constitute transfers of such Purchased Assets as security
for a loan.
SECTION 2.02 Acceptance by the Trust; Payment for Conveyances.
(a) The Trust hereby acknowledges its acceptance of all right, title
and interest previously held by the Seller to the property, now existing and
hereafter created, conveyed to the Trust pursuant to Section 2.01 and declares
that it shall hold such right, title and interest subject to the rights of the
Indenture Trustee for the benefit of the Secured Parties as provided herein
and in the Indenture. The Trust further acknowledges that, prior to or
simultaneously with the execution and delivery of this Agreement, the Seller
delivered to the Trust and the Trustee the computer file or microfiche or
written list relating to the Existing Accounts described in Section 2.01(e).
(b) In consideration for the property transferred by the Seller (or
by the CARCO Trust Trustee on behalf of the Seller as provided in the Program
Amendment Agreement) to the Trust on the Effective Date pursuant to Section
2.01(a), the Trust (i) shall cause the Indenture Trustee to deliver, on behalf
of the Trust and the Seller, on the Effective Date the Collateral Certificate
to the CARCO Trust Trustee for cancellation by the CARCO Trust Trustee and
(ii) shall execute, and cause the Owner Trustee to authenticate and deliver to
the order of the Seller on the Effective Date, the DCMOT Certificate pursuant
to the Trust Agreement; it being understood that concurrently with such
issuance and delivery of the DCMOT Certificate to the Seller, the Seller shall
have delivered the CARCO Certificate to the CARCO Trust Trustee for
cancellation by the CARCO Trust Trustee.
(c) In consideration for the property transferred by the Seller to
the Trust on each Addition Date pursuant to Section 2.01(a) and on each
Transfer Date (other than the Effective Date) pursuant to Section 2.01(b), the
Trust shall cause to be paid to the Seller all such funds available to be paid
to the Seller in respect of the Seller's Interest, to the extent specifically
permitted under this Agreement, the Indenture and the Indenture Supplements;
it being understood that any excess of the aggregate principal balance of the
Receivables transferred on an Addition Date or a Transfer Date (other than the
Effective Date) over the funds available to be paid to the Seller on such date
shall result, to the extent provided in this Agreement, the Indenture and the
Indenture Supplements, in an increase of the Seller's Interest evidenced by
the Seller's Certificates issued pursuant to the Trust Agreement.
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SECTION 2.03 Representations and Warranties of the Seller Relating to the
Seller and this Agreement.
The Seller hereby represents and warrants to the Trust as of the
Effective Date and each subsequent Closing Date that:
(a) Organization and Good Standing. The Seller is a limited
liability company duly organized and validly existing and in good standing
under the law of the State of Delaware and has, in all material respects, full
power, authority and legal right to own its properties and conduct its
business as such properties are presently owned and such business is presently
conducted, and to execute, deliver and perform its obligations under this
Agreement.
(b) Due Qualification. The Seller is duly qualified to do business
and, where necessary, is in good standing as a foreign company (or is exempt
from such requirement) and has obtained all necessary licenses and approvals
in each jurisdiction in which the conduct of its business requires such
qualification except where the failure to so qualify or obtain licenses or
approvals would not have a material adverse effect on its ability to perform
its obligations hereunder.
(c) Due Authorization. The execution and delivery of this Agreement
and the Related Documents and the consummation of the transactions provided
for or contemplated by this Agreement and the Related Documents, have been
duly authorized by the Seller by all necessary action on the part of the
Seller.
(d) No Conflict. The execution and delivery of this Agreement and
the Related Documents, the performance of the transactions contemplated by
this Agreement and the Related Documents and the fulfillment of the terms
hereof and thereof, will not conflict with, result in any breach of any of the
material terms and provisions of, or constitute (with or without notice or
lapse of time or both) a material default under, any indenture, contract,
agreement, mortgage, deed of trust, or other instrument to which the Seller is
a party or by which it or its properties are bound.
(e) No Violation. The execution and delivery of this Agreement and
the Related Documents, the performance of the transactions contemplated by
this Agreement and the Related Documents and the fulfillment of the terms
hereof and thereof applicable to the Seller, will not conflict with or violate
any material Requirements of Law applicable to the Seller.
(f) No Proceedings. There are no proceedings or, to the best
knowledge of the Seller, investigations pending or threatened against the
Seller before any Governmental Authority (i) asserting the invalidity of this
Agreement or any of the Related Documents, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or the
Related Documents, (iii) seeking any determination or ruling that, in the
reasonable judgment of the Seller, would materially and adversely affect the
performance by the Seller of its obligations under this Agreement or the
Related Documents, (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Agreement or the Related Documents or (v) seeking to affect adversely the
income tax
23
attributes of the Trust under the United States Federal or any State income,
single business or franchise tax systems.
(g) All Consents Required. All appraisals, authorizations, consents,
orders, approvals or other actions of any Person or of any governmental body
or official required in connection with the execution and delivery of this
Agreement and the Related Documents, the performance of the transactions
contemplated by this Agreement and the Related Documents, and the fulfillment
of the terms hereof and thereof, have been obtained.
(h) Enforceability. This Agreement and the Related Documents each
constitutes a legal, valid and binding obligation of the Seller enforceable
against the Seller in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect affecting the
enforcement of creditors' rights in general and except as such enforceability
may be limited by general principles of equity (whether considered in a suit
at law or in equity).
(i) Record of Accounts. As of the Effective Date, in the case of the
Existing Accounts, as of the applicable Addition Date, in the case of the
Additional Accounts, and, as of the applicable Removal Commencement Date, in
the case of Designated Accounts, Schedule 1 to this Agreement is an accurate
and complete listing in all material respects of all the Accounts as of the
Initial Cut-Off Date, the applicable Additional Cut-Off Date or the applicable
Removal Commencement Date, as the case may be, and the information contained
therein with respect to the identity of such Accounts and the Receivables
existing thereunder is true and correct in all material respects as of the
Initial Cut-Off Date, such applicable Additional Cut-Off Date or such Removal
Commencement Date, as the case may be.
(j) Valid Transfer. This Agreement or, in the case of Additional
Accounts, the related Assignment constitutes a valid sale, transfer and
assignment to the Trust of all right, title and interest of the Seller in the
Receivables and the Collateral Security and the proceeds thereof and all of
the Seller's rights, remedies, powers and privileges with respect to the
Receivables under the Receivables Purchase Agreement and, upon the filing of
the financing statements described in Section 2.01 with the Secretary of State
of the State of Delaware and, in the case of the Receivables hereafter created
and the proceeds thereof, upon the creation thereof, the Trust shall have a
first priority perfected ownership interest in such property, subject to the
rights of the Purchased Receivables Owners in any Collateral Security in
respect of the Partial Accounts (other than the Vehicles relating to Principal
Receivables arising in the Partial Accounts), except for Liens permitted under
the Receivables Purchase Agreement. Except as otherwise provided in this
Agreement and except for Liens permitted under the Receivables Purchase
Agreement or the other Transaction Documents, neither the Seller nor any
Person claiming through or under the Seller has any claim to or interest in
the Collateral of the Trust.
The representations and warranties set forth in this Section 2.03
shall survive the transfer and assignment of the Receivables to the Trust and
the issuance of the Notes. Upon discovery by the Seller, the Servicer, the
Trust, the Owner Trustee, any Agent or the Trustee of a breach of any of the
foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other parties specified above, and to
any Enhancement Providers.
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In the event of any breach of any of the representations and
warranties set forth in this Section 2.03 having a material adverse effect on
the interests of the Noteholders, then either the Trustee or the Holders of
Notes evidencing not less than a majority of the aggregate Outstanding Dollar
Principal Amount of all Notes, by notice then given in writing to the Seller
(and to the Trustee, the Trust, any Enhancement Providers and the Servicer if
given by the Noteholders), may direct the Seller to purchase the Noteholders'
Interest within 60 days of such notice (or within such longer period as may be
specified in such notice), and the Seller shall be obligated to make such
purchase on a Payment Date occurring within such 60-day period on the terms
and conditions set forth below; provided, however, that no such purchase shall
be required to be made if, by the end of such 60-day period (or such longer
period as may be specified), the representations and warranties set forth in
this Section 2.03 shall be satisfied in all material respects, and any
material adverse effect on the Noteholders' Interest caused thereby shall have
been cured. The Seller shall deposit in the Collection Account in immediately
available funds on the Business Day preceding such Payment Date, in payment
for such purchase of the Noteholders' Interest, the Reassignment Amount for
such Payment Date.
Notwithstanding anything to the contrary in this Agreement, such
amounts deposited in the Collection Account shall be applied in accordance
with Section 706 of the Indenture and shall be allocated pro rata among the
then-outstanding Series based on their respective Series Nominal Liquidation
Amounts. If the Trustee or the Noteholders give notice directing the Seller to
purchase the Noteholders' Interest as provided above, the obligation of the
Seller to purchase the Noteholders' Interest pursuant to this Section 2.03
shall constitute the sole remedy respecting an event of the type specified in
the first sentence of this Section 2.03 available to the Noteholders (or the
Trustee on behalf of the Noteholders).
SECTION 2.04 Representations and Warranties of the Seller Relating to the
Receivables.
(a) Representations and Warranties. The Seller hereby represents and
warrants to the Trust that:
(i) Each Receivable and all Collateral Security existing on the
Effective Date or, in the case of Additional Accounts, on the applicable
Addition Date, and on each Transfer Date, has been conveyed to the Trust
free and clear of any Lien, subject to the rights of the Purchased
Receivables Owners in any Collateral Security in respect of the Partial
Accounts (other than the Vehicles relating to Principal Receivables
arising in the Partial Accounts) and except for Liens permitted under the
Receivables Purchase Agreement.
(ii) With respect to each Receivable and all Collateral Security
existing on the Effective Date or, in the case of Additional Accounts, on
the applicable Addition Date, and on each Transfer Date, all consents,
licenses, approvals or authorizations of or registrations or declarations
with any Governmental Authority required to be obtained, effected or
given by the Seller in connection with the conveyance of such Receivable
or Collateral Security to the Trust have been duly obtained, effected or
given and are in full force and effect.
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(iii) On the Initial Cut-Off Date, the Effective Date and each
subsequent Closing Date, each Existing Account is an Eligible Account
and, in the case of Additional Accounts, on the applicable Additional
Cut-Off Date and each subsequent Closing Date, each such Additional
Account is an Eligible Account.
(iv) On the Effective Date, in the case of the Existing Accounts,
and, in the case of the Additional Accounts, on the applicable Additional
Cut-Off Date, and on each Transfer Date, each Receivable conveyed to the
Trust on such date is an Eligible Receivable or, if such Receivable is
not an Eligible Receivable, such Receivable is conveyed to the Trust in
accordance with Section 2.09.
(b) Notice of Breach. The representations and warranties set forth
in this Section 2.04 shall survive the transfer and assignment of the
Receivables to the Trust and the issuance of the Notes. Upon discovery by the
Seller, the Servicer, the Trust, the Owner Trustee, any Agent or the Trustee
of a breach of any of the representations and warranties set forth in this
Section 2.04, the party discovering such breach shall give prompt written
notice to the other parties specified above, and to any Enhancement Providers.
(c) Reassignment. In the event any representation or warranty under
Section 2.04(a) is not true and correct as of the date specified therein with
respect to any Receivable or Account and such breach has a material adverse
effect on the Noteholders' Interest in any such Receivable or Account, then,
within 30 days (or such longer period as may be agreed to by the Trustee) of
the earlier to occur of the discovery of any such event by the Seller or the
Servicer, or receipt by the Seller or the Servicer of written notice of any
such event given by the Trustee, any Agent or any Enhancement Providers, the
Seller shall accept a reassignment of such Receivable or, in the case of such
an untrue representation or warranty with respect to an Account, all
Receivables in such Account, on the Determination Date immediately succeeding
the day of such discovery or notice on the terms and conditions set forth in
the next succeeding paragraph; provided, however, that no such reassignment
shall be required to be made with respect to such Receivable if, by the end of
such 30-day period (or such longer period as may be agreed to by the Trustee),
the breached representation or warranty shall then be true and correct in all
material respects and any material adverse effect caused thereby shall have
been cured.
The Seller shall accept a reassignment of each such Receivable by
directing the Servicer to deduct, subject to the next sentence, the principal
amount of such Receivables from the Pool Balance on or prior to the end of the
Collection Period in which such reassignment obligation arises. If, following
such deduction, the Pool Balance would be less than the Aggregate Series
Nominal Liquidation Amount on the immediately preceding Determination Date
(after giving effect to the allocations, distributions, withdrawals and
deposits to be made on the Payment Date following such Determination Date),
then not later than 12:00 noon on the day on which such reassignment occurs,
the Seller shall deposit in the Collection Account in immediately available
funds the amount (the "Transfer Deposit Amount") by which the Pool Balance
would be less than the Aggregate Series Nominal Liquidation Amount (up to the
principal amount of such Receivables); provided that if the Transfer Deposit
Amount is not deposited as required by this sentence, then the principal
amounts of such Receivables shall only be deducted from the Pool Balance to
the extent that the Pool Balance is not reduced below the Aggregate Series
Nominal Liquidation Amount, and the Receivables the principal amounts of
26
which have not been so deducted shall not be reassigned to the Seller and
shall remain part of the Trust. Upon reassignment of any such Receivable, but
only after payment by the Seller of the Transfer Deposit Amount, if any, the
Trust shall automatically and without further action be deemed to sell,
transfer, assign, set over and otherwise convey to the Seller, without
recourse, representation or warranty, all the right, title and interest of the
Trust in and to such Receivable, all Collateral Security and all moneys due or
to become due with respect thereto and all proceeds thereof. The Trustee shall
execute such documents and instruments of transfer or assignment and take such
other actions as shall reasonably be requested by the Seller to effect the
conveyance of such Receivables pursuant to this Section. The obligation of the
Seller to accept a reassignment of any such Receivable and to pay any related
Transfer Deposit Amount shall constitute the sole remedy respecting the event
giving rise to such obligation available to the Trust, the Noteholders (or the
Trustee on behalf of the Noteholders).
SECTION 2.05 Addition of Accounts.
(a) If, as of the close of business on the last day of any
Collection Period, (i) the Pool Balance on such day is less than the Required
Participation Amount as of the following Payment Date (after giving effect to
the allocations, distributions, withdrawals and deposits to be made on such
Payment Date), or (ii) the result obtained by multiplying (x) the Seller's
Participation Amount as of the following Payment Date (after giving effect to
the allocations, distributions, withdrawals and deposits to be made on such
Payment Date), by (y) the percentage equivalent of the portion of the Seller's
Interest represented by the DCMOT Certificate, is less than 2% of the Pool
Balance on such last day, then the Seller shall, within ten Business Days
following the end of such Collection Period, designate and transfer to the
Trust the Receivables (and the related Collateral Security) of additional
Eligible Accounts of the Seller to be included as Accounts in a sufficient
amount such that after giving effect to such addition (i) the Pool Balance as
of the close of business on the Addition Date is at least equal to such
Required Participation Amount or (ii) the result obtained by multiplying (x)
such Seller's Participation Amount by (y) the percentage equivalent of the
portion of the Seller's Interest represented by the DCMOT Certificate, is at
least equal to 2% of such Pool Balance, as the case may be. The Seller shall
satisfy the conditions specified in Section 2.05(d) in designating such
Additional Accounts and conveying the related Receivables to the Trust. The
failure of the Seller to transfer Receivables to the Trust as provided in this
paragraph solely as a result of the unavailability of a sufficient amount of
Eligible Receivables shall not constitute a breach of this Agreement;
provided, however, that any such failure will nevertheless result in the
occurrence of an Early Redemption Event described in each Indenture
Supplement, unless otherwise specified therein with respect to the related
Series or Class.
(b) The Seller may from time to time, at its sole discretion,
subject to the conditions specified in paragraph (d) below, voluntarily
designate additional Eligible Accounts (including Partial Accounts) to be
included as Accounts and transfer to the Trust the Receivables (and the
related Collateral Security) of such Additional Accounts.
(c) Receivables and Collateral Security from such Additional
Accounts shall be sold to the Trust effective on a date (the "Addition Date")
specified in a written notice provided by the Seller (or the Servicer on its
behalf) to the Trust, the Trustee, the Rating Agencies, any Agent and any
Enhancement Providers specifying the Additional Cut-Off Date
27
and the Addition Date for such Additional Accounts (the "Addition Notice") on
or before the fifth Business Day but not more than the 30th day prior to the
related Addition Date (the "Notice Date"). The Addition Notice shall also
specify whether any such Additional Accounts are Partial Accounts.
(d) The Seller shall be permitted to convey to the Trust the
Receivables and all Collateral Security related thereto in any Additional
Accounts designated by the Seller as such pursuant to Section 2.05(a) or (b)
only upon satisfaction of each of the following conditions on or prior to the
related Addition Date:
(i) the Seller shall have provided the Trust, the Trustee, any
Agent, the Rating Agencies and any Enhancement Providers with a timely
Addition Notice;
(ii) such Additional Accounts shall all be Eligible Accounts;
(iii) the Seller shall have delivered to the Trust and the
Trustee a duly executed written assignment (which shall be acknowledged
and accepted by the Trustee) in substantially the form of Exhibit B (the
"Assignment") and the computer file or microfiche or written list
required to be delivered pursuant to Section 2.01;
(iv) the Seller shall, to the extent required by Section 4.03,
have deposited in the Collection Account all Collections with respect to
such Additional Accounts since the Additional Cut-Off Date;
(v) (A) no selection procedures believed by the Seller to be
adverse to the interests of the Trust, the Noteholders or any Enhancement
Providers were used in selecting such Additional Accounts; (B) the list
of Additional Accounts delivered pursuant to clause (iii) above is true
and correct in all material respects as of the Additional Cut-Off Date
and (C) as of each of the Notice Date and the Addition Date, the Seller
was neither insolvent nor will be made insolvent by such transfer, and
the Seller is not aware of any pending insolvency;
(vi) the Rating Agency Condition shall have been satisfied with
respect to such addition;
(vii) the addition of the Receivables arising in such Additional
Accounts shall not result in the occurrence of an Early Redemption Event;
(viii) the Seller shall have delivered to the Trust, the
Trustee and any Enhancement Providers a certificate of a Vice President
or more senior officer confirming (A) the items set forth in paragraphs
(ii) through (vii) above and (B) that the Seller reasonably believes that
the addition of the Receivables arising in such Additional Accounts will
not result in the occurrence of an Early Redemption Event; and
(ix) on or before each Addition Date, the Seller shall have
delivered to the Trust, the Trustee and any Enhancement Providers (A) an
Opinion of Counsel with respect to the Receivables in the Additional
Accounts substantially in the form of Exhibit
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G-2 and (B) except in the case of an addition required by Section
2.05(a), a Tax Opinion with respect to such addition.
(e) The Seller hereby represents and warrants as of the applicable
Addition Date as to the matters set forth in Section 2.05(d)(v). Upon
discovery by the Seller, the Servicer, the Trust, the Owner Trustee, any Agent
or the Trustee of a breach of the foregoing representations and warranties,
the party discovering the breach shall give prompt written notice to the other
parties specified above, and to any Enhancement Providers.
(f) Unless otherwise agreed to by the Rating Agencies,
notwithstanding anything to the contrary in this Agreement, the Seller may
from time to time, at its discretion, and subject only to the limitations
specified in this paragraph, designate Additional Accounts to be added to the
Trust. (Additional Accounts designated to be added to the Trust in accordance
with the provisions of this Section 2.05(f) are referred to herein as
"Automatic Additional Accounts".) On the Addition Date with respect to any
Automatic Additional Accounts, the Trust shall purchase the Receivables in
such Automatic Additional Accounts (and such Automatic Additional Accounts
shall be deemed to be Accounts for purposes of this Agreement) as of the close
of business on the applicable Additional Cut-Off Date, subject to the
satisfaction of the following conditions:
(i) such Automatic Additional Accounts shall be Eligible
Accounts;
(ii) the Seller shall, to the extent required by Section 4.03,
have deposited in the Collection Account all Collections with respect to
such Automatic Additional Accounts since the Additional Cut-Off Date;
(iii) no selection procedures believed by the Seller to be
adverse to the interests of the Trust, the Noteholders or any Enhancement
Providers were used in selecting such Automatic Additional Accounts;
(iv) as of each of the Additional Cut-Off Date and the Addition
Date, no Insolvency Event with respect to DCS or the Seller shall have
occurred nor shall the transfer of the Receivables arising in the
Automatic Additional Accounts to the Trust have been made in
contemplation of the occurrence thereof;
(v) the addition of the Receivables arising in the Automatic
Additional Accounts shall not cause an Early Redemption Event or any
event that, after the giving of notice or the lapse of time, would
constitute an Early Redemption Event to occur with respect to any Series;
(vi) on or before each Addition Date with respect to Automatic
Additional Accounts, the Seller shall have delivered to the Trust, the
Trustee and the Rating Agencies (A) an Opinion of Counsel with respect to
the Receivables in the Automatic Additional Accounts substantially in the
form of Exhibit G-2 to this Agreement and (B) a Tax Opinion with respect
to such addition;
(vii) within ten Business Days of the date on which any such
Receivables are added to the Trust, the Seller shall have delivered to
the Trust and the
29
Trustee a written assignment and a computer file or a microfiche list
containing a true and complete list of the related Automatic Additional
Accounts specifying for each such Account its account number, the
collection status, the aggregate amount outstanding in such Account and
the aggregate amount of Principal Receivables outstanding in such
Account; and
(viii) the Seller shall have delivered to the Trust and the
Trustee an Officers' Certificate of the Seller, dated the Addition Date,
to the effect that conditions (i) through (v) and (vii) above have been
satisfied.
The Seller hereby represents and warrants to the Trust as of the
related Addition Date as to the matters relating to it set forth in paragraphs
(iii) and (iv) above and that the file or list described below is, as of the
applicable Additional Cut-Off Date, true and complete in all material
respects.
In connection with the designation of Automatic Additional Accounts
to be added to the Trust, the Seller shall deliver to the Trust and the
Trustee (i) the computer file or microfiche list required to be delivered
pursuant to Section 2.01 with respect to such Automatic Additional Accounts
and (ii) a duly executed written Assignment (which shall be acknowledged and
accepted by the Trustee), substantially in the form of Exhibit B to this
Agreement.
Unless each Rating Agency otherwise consents, the number of
Automatic Additional Accounts added to the Trust with respect to any of the
three consecutive Collection Periods beginning in January, April, July and
October of each calendar year shall not exceed 8% of the number of Accounts as
of the first day of the calendar year during which such Collection Periods
commence and the number of Automatic Additional Accounts designated during any
such calendar year shall not exceed 20% of the number of Accounts as of the
first day of such calendar year. On or before the first business day of each
Collection Period beginning in January, April, July and October of each
calendar year, the Seller shall have requested and obtained notification from
each Rating Agency of any limitations to the right of the Seller to designate
Eligible Accounts as Automatic Additional Accounts during any period which
includes such Collection Period. To the extent that Automatic Additional
Accounts have been added to the Trust during the three consecutive Collection
Periods ending in the calendar month prior to such date, on or before January
31, April 30, July 31, October 31 of each calendar year, the Trustee shall
have received confirmation from each Rating Agency that the addition of all
Automatic Additional Accounts included as Accounts during the three
consecutive Collection Periods ending in the calendar month prior to such date
shall not have resulted in any applicable Rating Agency reducing or
withdrawing its rating of any outstanding Series or Class of Notes. If such
Rating Agency confirmation with respect to any Automatic Additional Accounts
is not so received, such Automatic Additional Accounts will be removed from
the Trust.
SECTION 2.06 Covenants of the Seller.
The Seller hereby covenants that:
(a) No Liens. Except for the conveyances hereunder, or as provided
in Section 10.10 of the Trust Agreement with respect to Supplemental
Certificates, the Seller will
30
not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or (subject to the rights of the Purchased Receivables Owners
with respect to the Collateral Security arising in the Partial Accounts (other
than the Vehicles relating to any Principal Receivables) and except as
permitted under the Receivables Purchase Agreement or the other Transaction
Documents) suffer to exist any Lien on, any Receivable or any Collateral
Security, whether now existing or hereafter created, or any interest therein,
or the Seller's rights, remedies, powers or privileges with respect to the
Receivables under the Receivables Purchase Agreement, or the Seller's Interest
or the Seller's Certificates and the Seller shall defend the right, title and
interest of the Trust in, to and under the Receivables and the Collateral
Security, whether now existing or hereafter created, and such rights,
remedies, powers and privileges, against all claims of third parties claiming
through or under the Seller.
(b) Account Allocations. In the event that the Seller is unable for
any reason to transfer Receivables to the Trust, then the Seller agrees that
it shall allocate, after the occurrence of such event, payments on each
Account with respect to the principal balance of such Account first to the
oldest principal balance of such Account and to have such payments applied as
Collections in accordance with the terms of this Agreement; provided, however,
that, in the case of Partial Accounts, Collections of Principal Receivables
shall be allocated to the Principal Receivables to which such Collections
relate. The parties hereto agree that Non-Principal Receivables, whenever
created, accrued in respect of Principal Receivables which have been conveyed
to the Trust shall continue to be a part of the Trust notwithstanding any
cessation of the transfer of additional Principal Receivables to the Trust and
Collections with respect thereto shall continue to be allocated and paid in
accordance with the terms of this Agreement.
(c) Delivery of Collections. In the event that the Seller, DCS or
any Affiliate thereof receives payments in respect of Receivables, the Seller
and DCS agree to pay or cause to be paid to the Servicer or any Successor
Servicer all payments received thereby in respect of the Receivables as soon
as practicable after receipt thereof, but in no event later than two Business
Days after the receipt by the Seller, DCS or any Affiliate thereof.
(d) Notice of Liens. The Seller shall notify the Trust and the
Trustee promptly after becoming aware of any Lien on any Receivable other than
the conveyances hereunder.
(e) Compliance with Law. The Seller hereby agrees to comply in all
material respects with all Requirements of Law applicable to the Seller.
(f) Activities of the Seller. The Seller will not engage in any
business or activity of any kind or enter into any transaction other than (x)
the businesses, activities and transactions contemplated and authorized by
this Agreement or the Related Documents or (y) the business of acquiring,
selling or financing wholesale and retail receivables and related activities
and transactions (such businesses, activities and transactions, collectively,
"Permitted Transactions").
(g) Indebtedness. The Seller will not create, incur or assume any
indebtedness or issue any securities or sell or transfer any receivables to a
trust or other Person
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which issues securities in respect of any such receivables, unless (i) any
such indebtedness or securities have no recourse to any assets of the Seller
other than the specified assets to which such indebtedness or securities
relate and (ii) the Rating Agency Condition shall have been satisfied in
connection therewith prior to the incurrence or issuance thereof.
(h) Guarantees. The Seller will not become or remain liable,
directly or contingently, in connection with any indebtedness or other
liability of any other Person, whether by guarantee, endorsement (other than
endorsements of negotiable instruments for deposit or collection in the
ordinary course of business), agreement to purchase or purchase, agreement to
supply or advance funds, or otherwise, except in connection with Permitted
Transactions and unless the Rating Agency Condition shall have been satisfied
with respect thereto.
(i) Investments. The Seller will not make or suffer to exist any
loans or advances to, or extend any credit to, or make any investments (by way
of transfer of property, contributions to capital purchase of stock or
securities or evidences of indebtedness, acquisition of the business or
assets, or otherwise) in, any Affiliate, unless prior thereto the Rating
Agency Condition shall have been satisfied with respect thereto; provided,
however, that the Seller shall not be prohibited under this Section 2.06(i)
from declaring or paying any dividends in respect of its common stock.
(j) Stock; Merger. The Seller will not (i) sell any shares of any
class of its capital stock or membership interests, as applicable, to any
Person (other than DCS and its Affiliates), or enter into any transaction of
merger or consolidation unless (A) the surviving Person of such merger or
consolidation assumes all of the Seller's obligations under this Agreement,
(B) the Seller shall have given the Rating Agencies at least 10 days' prior
notice and the Rating Agency Condition shall have been satisfied with respect
to such transaction and (C) such merger or consolidation does not conflict
with any provisions of the certificate of incorporation or other governing
document of the Seller, or (ii) terminate, liquidate or dissolve itself (or
suffer any termination, liquidation or dissolution), or (iii) acquire or be
acquired by any Person, or (iv) otherwise make (or suffer) any material change
in the organization of or method of conducting its business.
(k) Agreements. The Seller will not become a party to, or permit any
of its properties to be bound by, any indenture, mortgage, instrument,
contract, agreement, lease or other undertaking, except this Agreement, the
Related Documents and any document relating to a Permitted Transaction, or
amend or modify its certificate of incorporation or other governing document
or cancel, terminate, amend, supplement, modify or waive any of the provisions
of the Receivables Purchase Agreement or any of the other Related Documents or
request, consent or agree to or suffer to exist or permit any such
cancellation, termination, amendment, supplement, modification or waiver
unless, in any such case, the Rating Agency Condition shall have been
satisfied with respect thereto.
SECTION 2.07 Removal of Eligible Accounts.
(a) On each Determination Date the Seller shall have the right to
remove Accounts from the Trust in the manner prescribed in Section 2.07(b). In
addition, on each Determination Date the Seller shall have the right to remove
Accounts from the Trust and, in
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connection therewith, repurchase the then-existing Receivables in such
Accounts, in the manner prescribed in Section 2.07(c). In addition, on each
Determination Date the Seller shall have the right to remove DTS Accounts in
the manner prescribed in Section 2.07(f). None of the Receivables that have
been removed from the Trust shall be sold or otherwise transferred to DCS, and
DCS agrees that, notwithstanding anything to the contrary in the Receivables
Purchase Agreement, it will not purchase or otherwise acquire such
Receivables. For the avoidance of doubt, the Seller shall not remove Accounts
from the Trust more often than once a month.
(b) To remove Accounts, the Seller (or the Servicer on its behalf)
shall take the following actions and make the following determinations:
(i) not less than five Business Days prior to the Removal
Commencement Date, furnish to the Trust, the Trustee, any Agent, any
Enhancement Providers and the Rating Agencies a written notice (the
"Removal Notice") specifying the Determination Date (which may be the
Determination Date on which such notice is given) on which removal of the
Receivables of one or more Accounts will commence (a "Removal
Commencement Date") and the Accounts the future generated Receivables of
which are to be removed from the Trust (the "Designated Accounts");
(ii) determine on the Removal Commencement Date with respect to
such Designated Accounts the aggregate balance of Principal Receivables
in respect of each such Designated Account (the "Designated Balance") and
amend Schedule 1 by delivering to the Trust and the Trustee a computer
file or microfiche or written list containing a true and complete list of
the Removed Accounts specifying for each such Account, as of the Removal
Commencement Date, its account number, the aggregate amount of
Receivables outstanding in such Account and the Designated Balance;
(iii) from and after such Removal Commencement Date, cease to
transfer to the Trust any and all Receivables arising in such Designated
Accounts;
(iv) from and after such Removal Commencement Date, allocate all
Collections of Principal Receivables in respect of each such Designated
Account, first to the oldest outstanding principal balance of such
Designated Account, until the Determination Date on which the Designated
Balance with respect to such Designated Account is reduced to zero (the
"Removal Date");
(v) on each Business Day from and after such Removal
Commencement Date to and until the related Removal Date, allocate (A) to
the Trust (to be further allocated pursuant to the terms of this
Agreement), Defaulted Receivables and Collections of Non-Principal
Receivables in respect of each Designated Account, based on the ratio of
the aggregate amount of Principal Receivables in all Designated Accounts
sold to the Trust on such Business Day to the total aggregate amount of
Principal Receivables in all such Designated Accounts on such Business
Day and (B) to the Seller, the remainder of the Defaulted Receivables and
Collections of Non-Principal Receivables in all such Designated Accounts
on such Business Day;
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(vi) represent and warrant that the removal of any such Eligible
Account on any Removal Date shall not, in the reasonable belief of the
Seller, cause an Early Redemption Event to occur or cause the Pool
Balance to be less than the Required Participation Amount;
(vii) represent and warrant that no selection procedures
believed by the Seller to be adverse to the interests of the Trust, the
Noteholders or any Enhancement Providers were utilized in selecting the
Designated Accounts and that the selection procedures were applied so as
to randomly select the Designated Accounts from the entire population of
Accounts;
(viii) represent and warrant as of the Removal Date that the
list of Removed Accounts delivered pursuant to clause (ii) above, as of
the Removal Commencement Date, is true and complete in all material
respects;
(ix) represent and warrant that such removal will not result in
a reduction or withdrawal of the rating of any outstanding Series or
Class by the applicable Rating Agency;
(x) deliver to the Trust, the Trustee, each Rating Agency, any
Agent and any Enhancement Providers a Tax Opinion, dated the Removal
Commencement Date, with respect to such removal; and
(xi) on or before the related Removal Commencement Date,
deliver to the Trust, the Trustee, any Agent and any Enhancement
Providers an Officers' Certificate confirming the items set forth in
clauses (vi) through (ix) above and confirming that the Seller
reasonably believes that the removal of the Removed Accounts will
not result in the occurrence of an Early Redemption Event; the
Trustee may conclusively rely on such Officers' Certificate and
shall have no duty to make inquiries with regard to the matters set
forth therein and shall incur no liability in so relying. No
Designated Accounts shall be so removed if such removal will result
in a reduction or withdrawal of the rating of any outstanding Series
or Class by the applicable Rating Agency.
(c) To remove Accounts and repurchase the then-existing Receivables
in such Accounts, the Seller (or the Servicer on its behalf) shall take the
following actions and make the following determinations:
(i) not less than five Business Days prior to the Removal and
Repurchase Date (the "Removal and Repurchase Notice Date"), furnish to
the Trust, the Trustee, any Agent, any Enhancement Providers and the
Rating Agencies a Removal Notice specifying the Designated Accounts which
are to be removed, and the then-existing Receivables in such Designated
Accounts (the "Designated Receivables") which are to be repurchased, from
the Trust and the Determination Date (which may be the Determination Date
on which such notice is given) on which the removal of such Designated
Accounts and the repurchase of such Designated Receivables will occur (a
"Removal and Repurchase Date");
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(ii) on the Removal and Repurchase Date with respect to such
Designated Accounts, amend Schedule 1 by delivering to the Trust and the
Trustee a computer file or microfiche or written list containing a true
and complete list of the Removed Accounts specifying for each such
Account, as of the Removal and Repurchase Notice Date, its account number
and the aggregate amount of Receivables outstanding in such Account;
(iii) on the Removal and Repurchase Date, deposit into the
Collection Account funds in an amount equal to the aggregate outstanding
balance of the Repurchased Receivables on such date (the "Repurchased
Receivables Purchase Price"), which funds, notwithstanding anything in
this Agreement to the contrary, will not be released from the Collection
Account other than pursuant to Section 4.05 of this Agreement;
(iv) represent and warrant that the removal of any such Eligible
Account and the repurchase of the Receivables then-existing in such
Account on any Removal and Repurchase Date shall not, in the reasonable
belief of the Seller, cause an Early Redemption Event to occur or cause
the Pool Balance to be less than the Required Participation Amount;
(v) represent and warrant that no selection procedures believed
by the Seller to be adverse to the interests of the Trust, the
Noteholders or any Enhancement Providers were utilized in selecting the
Designated Accounts; further, represent and warrant that the selection
procedures were applied so as to randomly select the Designated Accounts
from the entire population of Accounts;
(vi) represent and warrant as of the Removal and Repurchase Date
that the list of Removed Accounts delivered pursuant to clause (ii)
above, as of the Removal and Repurchase Date, is true and complete in all
material respects;
(vii) represent and warrant that such removal and repurchase
will not result in a reduction or withdrawal of the rating of any
outstanding Series or Class by the applicable Rating Agency;
(viii) deliver to the Trust, the Trustee, each Rating Agency, any
Agent and any Enhancement Providers a Tax Opinion, dated the Removal and
Repurchase Date, with respect to such removal and repurchase; and
(ix) on or before the related Removal and Repurchase Date,
deliver to the Trust, the Trustee, any Agent and any Enhancement
Providers an Officers' Certificate confirming the items set forth in
clauses (iv) through (vii) above and confirming that the Seller
reasonably believes that the removal of the Removed Accounts and the
repurchase of the Repurchased Receivables will not result in the
occurrence of an Early Redemption Event; the Trustee may conclusively
rely on such Officers' Certificate and shall have no duty to make
inquiries with regard to the matters set forth therein and shall incur no
liability in so relying.
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No Designated Accounts shall be so removed and no Designated
Receivables shall be so repurchased unless each Rating Agency shall have
notified the Seller, the Servicer, the Trust and the Trustee in writing that
such removal and repurchase will not result in a reduction or withdrawal of
the rating of any outstanding Series or Class by such Rating Agency.
(d) In the case of any removal of a Designated Account pursuant to
Section 2.07(b), subject to such Section 2.07(b), on the Removal Date with
respect to any such Designated Account, the Seller shall cease to allocate any
Collections therefrom in accordance with Section 2.07(b) and such Designated
Account shall be deemed removed from the Trust for all purposes (a "Removed
Account"). Within five Business Days after the Removal Date, the Trust and the
Trustee shall deliver to the Seller a reassignment in substantially the form
of Exhibit H (the "Reassignment"), together with appropriate UCC financing
statements.
(e) In the case of any removal of Designated Accounts and repurchase
of Designated Receivables pursuant to Section 2.07(c), subject to such Section
2.07(c), on the Removal and Repurchase Date with respect to any such
Designated Account and Designated Receivables, such Designated Account shall
be deemed removed, and such Designated Receivables ("Repurchased Receivables")
shall be deemed repurchased, from the Trust for all purposes and the Trustee
shall, without further action, be deemed to sell, transfer, assign, set over
and otherwise convey to the Seller, effective as of the Removal and Repurchase
Date, without recourse, representation or warranty, all the right, title and
interest of the Trust in and to the Repurchased Receivables, all moneys due
and to become due and all amounts received with respect thereto and all
proceeds thereof. Within five Business Days after the Removal and Repurchase
Date, the Trust and the Trustee shall execute and deliver (but shall have no
duty to prepare) to the Seller a Reassignment, together with appropriate UCC
financing statements.
(f) To remove Accounts in respect of which the related Dealer is in
Dealer Trouble Status (each, a "DTS Account"), the Seller (or the Servicer on
its behalf) shall take the following actions and make the following
determinations:
(i) determine on the Business Day on which each such Dealer is
placed in Dealer Trouble Status (the "DTS Removal Commencement Date") the
aggregate balance of Principal Receivables in each such DTS Account (the
"DTS Designated Balance") and amend Schedule 1 by delivering to the Trust
and the Trustee a computer file or microfiche or written list containing
for each such DTS Account, as of the DTS Removal Commencement Date for
such Account, its account number, the aggregate amount of Receivables
outstanding in such DTS Account and the DTS Designated Balance;
(ii) from and after such DTS Removal Commencement Date, cease to
transfer to the Trust any and all Receivables arising in such DTS
Account;
(iii) from and after each such DTS Removal Commencement Date,
allocate all Collections of Principal Receivables in respect of each such
DTS Account, first, to the oldest outstanding principal balance of such
DTS Account, until the Determination Date on which the DTS Balance with
respect to such Designated Account is reduced to zero (the "DTS Removal
Date");
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(iv) on each Business Day from and after such DTS Removal
Commencement Date to and until the related DTS Removal Date, allocate (A)
to the Trust (to be further allocated pursuant to the terms of this
Agreement), Defaulted Receivables and Collections of Non-Principal
Receivables in respect of each DTS Account, based on the ratio of the
aggregate amount of Principal Receivables in all DTS Accounts sold to the
Trust on such Business Day to the total aggregate amount of Principal
Receivables in all such DTS Accounts on such Business Day and (B) to the
Seller, the remainder of the Defaulted Receivables and Collections of
Non-Principal Receivables in all such Designated Accounts on such
Business Day;
(v) represent and warrant as of the DTS Removal Date that the
DTS Accounts specified in clause (i) above and the DTS Designated
Balances of such DTS Accounts, as of the DTS Removal Commencement Date,
is true and complete in all material respects;
(vi) the Seller shall have delivered to the Trust, the Trustee,
each Rating Agency and any Enhancement Providers an Officers'
Certificate, dated the Automatic Removal Date, to the effect that the
Seller reasonably believes that such removal will not cause an Early
Redemption Event to occur with respect to any Series; and
(vii) deliver to the Trust, the Trustee, each Rating Agency,
any Agent and any Enhancement Providers a Tax Opinion, dated the DTS
Removal Commencement Date, with respect to such removal.
In the case of any removal of a DTS Account, on the DTS Removal Date
with respect to any such DTS Account, the Seller shall cease to allocate any
Collections therefrom in accordance with this Section 2.07(f) and such DTS
Account shall be deemed removed from the Trust for all purposes (also a
"Removed Account"). Within five Business Days after the DTS Removal Date, the
Trust and the Trustee shall execute and deliver (but shall have no duty to
prepare) to the Seller a Reassignment, together with appropriate UCC financing
statements.
(g) Notwithstanding anything in this Agreement to the contrary, the
Seller shall have the right to require the reassignment to it of all the
Trust's right, title and interest in, to and under the Receivables
then-existing and thereafter created, all monies due or to become due and all
amounts received with respect thereto and all proceeds thereof in or with
respect to the Accounts ("Automatic Removed Accounts") designated by the
Seller, upon satisfaction of the following conditions:
(i) on or before the fifth Business Day immediately preceding
the date upon which such Accounts are to be removed, the Seller shall
have given the Trust, the Trustee, each Enhancement Provider and the
Rating Agencies a Removal Notice specifying the date for removal of the
Automatic Removed Accounts (the "Automatic Removal Date");
(ii) on or prior to the date that is five Business Days after
the Automatic Removal Date, the Seller shall have delivered to the Trust
and the Trustee a
37
computer file or microfiche or written list containing a true and
complete list of the Automatic Removed Accounts specifying for each such
Account, as of the removal notice date, its account number and the
aggregate amount of Receivables outstanding in such Account;
(iii) the Seller shall have represented and warranted as of each
Automatic Removal Date that the list of Automatic Removed Accounts
delivered pursuant to clause (ii) above, as of the Automatic Removal
Date, is true and complete in all material respects and that the
selection procedures for selecting the Automatic Removed Accounts were
applied so as to randomly select the Automatic Removed Accounts from the
entire population of Accounts;
(iv) the Trustee shall have received confirmation from each
Rating Agency that such removal will not result in a reduction or
withdrawal of such Rating Agency's rating of any outstanding Series or
Class of Certificates;
(v) the Seller shall have delivered to the Trust, the Trustee,
each Rating Agency and any Enhancement Providers an Officers'
Certificate, dated the Automatic Removal Date, to the effect that the
Seller reasonably believes that such removal will not cause an Early
Redemption Event to occur with respect to any Series or cause the Pool
Balance to be less than the Required Participation Amount; and
(vi) the Seller shall have delivered to the Trust, the Trustee,
each Rating Agency and any Enhancement Providers a Tax Opinion, dated the
Automatic Removal Date, with respect to such removal.
Notwithstanding the foregoing provisions, the conditions specified in (i) that
relate to Enhancement Providers and Rating Agencies and the conditions
specified in (iv), (v) and (vi) above will not be required if all of the
Accounts to be removed have been liquidated and have zero balances. For the
avoidance of doubt, the Seller shall not remove Accounts from the Trust more
than once a month.
Upon satisfaction of the above conditions, on the Automatic Removal
Date all the right, title and interest of the Trust in and to the Receivables
arising in the Automatic Removed Accounts, all monies due and to become due
and all amounts received with respect thereto and all proceeds thereof shall
be deemed removed from the Trust for all purposes and shall be a Removed
Account.
SECTION 2.08 Removal of Ineligible Accounts.
(a) On any date on which an Account becomes an Ineligible Account
(which date shall be deemed to be the Removal Commencement Date) the Seller
shall commence removal of the Receivables of such Ineligible Account in the
manner prescribed in Section 2.08(b).
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(b) With respect to each Account that becomes an Ineligible Account,
the Seller (or the Servicer on its behalf) shall take the following actions
and make the following determinations:
(i) furnish to the Trust, the Trustee, any Agent and any
Enhancement Providers a Removal Notice specifying the Removal
Commencement Date and the Ineligible Accounts to be treated as Designated
Accounts;
(ii) determine on the Removal Commencement Date with respect to
such Designated Accounts the Designated Balance with respect to each such
Designated Account and amend Schedule 1 by delivering to the Trust and
the Trustee a computer file or microfiche or written list containing a
true and complete list of the Removed Accounts specifying for each such
Account, as of the Removal Commencement Date, its account number, the
aggregate amount of Receivables outstanding in such Account and the
Designated Balance;
(iii) from and after such Removal Commencement Date, cease to
transfer to the Trust any and all Receivables arising in such Designated
Accounts;
(iv) from and after such Removal Commencement Date, allocate
Collections of Principal Receivables in respect of each Designated
Account, first to the oldest outstanding principal balance of such
Designated Account, until the Removal Date with respect thereto; and
(v) on each Business Day from and after such Removal
Commencement Date to and until the related Removal Date, allocate (A) to
the Trust (to be further allocated pursuant to the terms of this
Agreement), Defaulted Receivables and Collections of Non-Principal
Receivables in respect of each Designated Account, based on the ratio of
the aggregate amount of Principal Receivables in all Designated Accounts
sold to the Trust on such Business Day to the total aggregate amount of
Principal Receivables in all such Designated Accounts on such Business
Day and (B) to the Seller, the remainder of the Defaulted Receivables and
Collections of Non-Principal Receivables in all such Designated Accounts
on such Business Day.
(c) Subject to Section 2.07(b), on the Removal Date with respect to
any such Designated Account, the Seller shall cease to allocate any
Collections therefrom in accordance with Section 2.07(b) and such Designated
Account shall be deemed removed from the Trust for all purposes (a "Removed
Account"). After the Removal Date and upon the written request of the
Servicer, the Trust and the Trustee shall deliver to the Seller a reassignment
in substantially the form of Exhibit H (the "Reassignment").
SECTION 2.09 Sale of Ineligible Receivables.
The Seller shall sell to the Trust on each Transfer Date any and all
Receivables arising in any Eligible Accounts that are Ineligible Receivables;
provided that (a) on the Initial Cut-Off Date or, in the case of Receivables
arising in Additional Accounts, on the related Additional Cut-Off Date, and on
the applicable Transfer Date, the Account in which such Receivables arise is
an Eligible Account and (b) the "Incremental Overcollateralization Amount"
39
with respect to each Series or Class of Notes is adjusted in accordance with
the definition thereof set forth in the related Indenture Supplement.
SECTION 2.10 Representations and Warranties as to the Trust's Security
Interest in the Receivables.
The Seller makes the following representations and warranties to the
Trust as of the Effective Date and each Transfer Date:
(a) Except as may be expressly permitted herein or in the other
Transaction Documents, this Agreement creates a valid and continuing security
interest (as defined in the UCC) in the Receivables in favor of the Trust,
which security interest is prior to all other Liens and is enforceable as such
against creditors of and purchasers from the Seller.
(b) The Receivables constitute "tangible chattel paper", "accounts"
or "payment intangibles" within the meaning of Article 9 of the UCC.
(c) The Seller has taken all necessary steps to perfect its security
interest (if any) against account debtors on the Receivables in any property
securing the Receivables.
(d) The Seller owns and has good and marketable title to the
Receivables free and clear of any Lien of any Person, except as permitted
under the Receivables Purchase Agreement.
(e) The Seller has caused or will have caused, within ten days after
the date of execution of this Agreement, the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security interest
in the Receivables granted to the Trust hereunder.
(f) Other than the security interest granted to the Trust pursuant
to this Agreement, the Seller has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the Receivables. 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 other than any financing statement relating to the security
interest granted to the Trust hereunder or that has been terminated. The
Seller is not aware of any judgment or tax lien filings against the Seller.
(g) The Servicer as custodian for the Trust has in its possession
all original copies of the contracts that constitute or evidence the
Receivables, and will hold all such contracts for the benefit of the Trustee.
The contracts that constitute or evidence the Receivables do not have any
marks or notations indicating that they have been pledged, assigned or
otherwise conveyed to any Person other than the Trust. All financing
statements filed or to be filed against the Seller in favor of the Trust in
connection herewith and describing the Receivables contain a statement to the
following effect: "A purchase of or security interest in any collateral
described in this financing statement will violate the rights of the Secured
Party".
(h) The Seller has received all consents and approvals (if any)
required by the terms of the Receivables to the sale of the Receivables
hereunder to the Trust.
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The representations and warranties set forth in this Section 2.10
shall survive the termination of this Agreement and the issuance of the Notes.
The representations and warranties set forth in this Section 2.10 may not be
waived or amended except upon satisfaction of the Rating Agency Condition. The
Seller covenants and agrees to take such actions as are necessary to maintain
the first priority perfected security interest of the Trust in the
Receivables.
ARTICLE III
Administration and Servicing of Receivables
SECTION 3.01 Acceptance of Appointment and Other Matters Relating to the
Servicer.
(a) The Servicer shall service and administer the Receivables, shall
collect payments due under the Receivables and shall charge-off as
uncollectible Receivables, all in accordance with its customary and usual
servicing procedures for servicing wholesale receivables comparable to the
Receivables which the Servicer services for its own account and in accordance
with the Floorplan Financing Guidelines. The Servicer shall have full power
and authority, acting alone or through any party properly designated by it
hereunder, to do any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing and subject to Section 10.01, the Servicer is
hereby authorized and empowered, unless such power and authority is revoked by
the Trustee on account of the occurrence of a Service Default pursuant to
Section 10.01, (i) to instruct the Trustee to make withdrawals and payments
from the Collection Account, the Excess Funding Account and any Series Account
as set forth in this Agreement, the Indenture or any Indenture Supplement,
(ii) to instruct the Trustee to take any action required or permitted under
any Enhancement Agreement, (iii) to execute and deliver, on behalf of the
Trust, any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge, and all other comparable instruments, with
respect to the Receivables and, after the delinquency of any Receivable and to
the extent permitted under and in compliance with applicable Requirements of
Law, to commence enforcement proceedings with respect to such Receivables,
(iv) to make any filings, reports, notices, applications, registrations with,
and seek any consents or authorizations from, the Securities and Exchange
Commission and any State securities authority on behalf of the Trust as may be
necessary or advisable to comply with any Federal or State securities laws or
reporting requirement, and (v) to delegate certain of its servicing,
collection, enforcement and administrative duties hereunder with respect to
the Accounts and the Receivables to any Person who agrees to conduct such
duties in accordance with the Floorplan Financing Guidelines and this
Agreement; provided, however, that the Servicer shall notify the Trust, the
Trustee, the Rating Agencies, any Agent and any Enhancement Providers in
writing of any such delegation of its duties which is not in the ordinary
course of its business, that no delegation will relieve the Servicer of its
liability and responsibility with respect to such duties and that the Rating
Agency Condition shall have been satisfied with respect to any such
delegation. The Trustee or the Owner Trustee, on behalf of the Trust, shall
furnish the Servicer, at its written request therefor, with any powers of
attorney and other documents necessary or appropriate to enable the Servicer
to carry out its servicing and administrative duties hereunder.
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(b) In the event that the Seller is unable for any reason to
transfer Receivables to the Trust in accordance with the provisions of this
Agreement (including by reason of an Insolvency Event occurring with respect
to the Seller, the Servicer, DCS or DaimlerChrysler, or any court of competent
jurisdiction ordering that the Seller not transfer any additional Principal
Receivables to the Trust) then, in any such event, the Servicer agrees (i) to
give prompt written notice thereof to the Trust, the Trustee, any Enhancement
Providers, any Agent and each Rating Agency and (ii) that it shall in any such
event allocate after the occurrence of such event, payments on each Account
with respect to the principal balance of such Account first to the oldest
principal balance of such Account, subject to the proviso set forth in Section
2.06(b), and to have such payments applied as Collections in accordance with
Sections 4.03 and 4.04. The parties hereto agree that Non-Principal
Receivables, whenever created, accrued in respect of Principal Receivables
which have been conveyed to the Trust shall continue to be a part of the
corpus of the Trust notwithstanding any cessation of the transfer of
additional Principal Receivables to the Trust and Collections with respect
thereto shall continue to be allocated and paid in accordance with the terms
of this Agreement.
(c) The Servicer shall not, and any Successor Servicer shall not be
obligated to, use separate servicing procedures, offices, employees or
accounts for servicing the Receivables from the procedures, offices, employees
and accounts used by the Servicer in connection with servicing other wholesale
receivables.
(d) The Servicer shall comply with and perform its servicing
obligations with respect to the Accounts and Receivables in accordance with
the Floorplan Financing Agreements relating to the Accounts and the Floorplan
Financing Guidelines, except insofar as any failure to so comply or perform
would not materially and adversely affect the rights of the Trust, the
Noteholders or any Enhancement Providers. Subject to compliance with all
Requirements of Law, the Servicer (or DCS) may change the terms and provisions
of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in
any respect (including the calculation of the amount or the timing of
charge-offs and the rate of the finance charge assessed thereon), only if (i)
as a result of such change, in the reasonable judgment of the Servicer no
Early Redemption Event will occur at any time and none of the Enhancement
Providers, if any, or the Noteholders shall be adversely affected, (ii) such
change is made applicable to the comparable segment of wholesale accounts
owned or serviced by the Servicer which have characteristics the same as, or
substantially similar to, the Accounts which are the subject of such change
and (iii) in the case of a reduction in the rate of such finance charges, the
Servicer (or DCS) does not reasonably expect any such reduction to result in
the Net Receivables Rate for any Collection Period being less than the
weighted average of the sum of the "Note Interest Rates" and the applicable
rate used to calculate the Aggregate Series Servicing Fee for all outstanding
Series for the related "Interest Period" (each such term as defined in the
related Indenture Supplement).
(e) On behalf of the Trust (to the extent of the Trust's interest
therein), the Servicer hereby agrees that it holds in trust any document in
its possession evidencing or securing a Receivable and necessary for its
servicing thereof pursuant to this Agreement. The Servicer acknowledges that
it holds any documents relating to the Receivables in its possession as agent
and bailee and custodian for the use and benefit of the Trust and the Trustee.
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SECTION 3.02 Servicing Compensation.
(a) As full compensation for its servicing activities hereunder and
reimbursement for its expenses as set forth in the immediately following
paragraph, the Servicer shall be entitled to receive the Servicing Fee on each
Payment Date on or prior to the Trust Termination Date payable in arrears. The
"Servicing Fee" payable to the Servicer on each Payment Date in respect of any
Collection Period shall equal the product of (a) the Monthly Servicing Fee
Rate and (b) the Pool Balance as of the last day of the Collection Period
second preceding such Payment Date. A portion of the Servicing Fee shall be
allocated to each Series of Notes in accordance with the related Indenture
Supplement. The portion of the Servicing Fee so allocated to any Series of
Notes shall be paid in accordance with the related Indenture Supplement only
to the extent of funds available for such payment pursuant to such Indenture
Supplement. The sum of the portions of the Servicing Fee allocable to all
Series of Notes is referred to as the "Aggregate Series Servicing Fee". The
remainder of the Servicing Fee that is not otherwise allocated to any Series
of Notes shall be paid by the Seller and in no event shall the Trust, the
Trustee or the Noteholders be liable for the share of the Servicing Fee to be
paid by the Seller.
(b) The Servicer's expenses include the amounts due to the Trustee
pursuant to Section 807 of the Indenture and the reasonable fees and
disbursements of independent accountants and all other expenses incurred by
the Servicer in connection with its activities hereunder, and including all
other fees and expenses of the Trust not expressly stated herein to be for the
account of the Noteholders. The Servicer shall be required to pay such
expenses for its own account, and shall not be entitled to any payment
therefor other than the Servicing Fee. The Servicer will be solely responsible
for all fees and expenses incurred by or on behalf of the Servicer in
connection herewith and the Servicer will not be entitled to any fee or other
payment from, or claim on, any of the Collateral of the Trust (other than the
Servicing Fee).
(c) The Servicer will be permitted, in its sole discretion, to waive
all or any portion of the Servicing Fee for any Payment Date by notice to the
Trustee on or before the related Determination Date; provided that the
Servicer believes that sufficient Collections of Non-Principal Receivables
will be available on any future Payment Date to pay the Aggregate Series
Servicing Fee relating to the waived Servicing Fee. If the Servicer so waives
all or any portion of the Servicing Fee for any Payment Date, the Servicing
Fee and the Aggregate Series Servicing Fee for such Payment Date shall be
deemed to be reduced by the amount so waived for all purposes of this
Agreement, the Indenture and the Indenture Supplements; provided, however,
that such Aggregate Series Servicing Fee shall be paid on a future Payment
Date solely to the extent amounts are available therefor pursuant to the
Indenture Supplements; provided, further, that, to the extent any such waived
Aggregate Series Servicing Fee is so paid, the related portion of the
Servicing Fee to be paid by the Seller shall be paid by the Seller to the
Servicer.
SECTION 3.03 Representations, Warranties and Covenants of the Servicer.
(a) DCS, as Servicer, hereby makes, and any Successor Servicer by
its appointment hereunder shall make, on the Effective Date and each
subsequent Closing Date (and on the date of any such appointment) the
following representations, warranties and covenants:
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(i) Organization and Good Standing. Such party is a limited
liability company duly organized, validly existing and in good standing
under the applicable laws of the state of its formation and has, in all
material respects, full corporate power, authority and legal rights to
own its properties and conduct its wholesale receivable servicing
business as such properties are presently owned and as such business is
presently conducted, and to execute, deliver and perform its obligations
under this Agreement.
(ii) Due Qualification. Such party is duly qualified to do
business and is in good standing as a foreign limited liability company
(or is exempt from such requirements) and has obtained all necessary
licenses and approvals in each jurisdiction in which the servicing of the
Receivables as required by this Agreement requires such qualification
except where the failure to so qualify or obtain licenses or approvals
would not have a material adverse effect on its ability to perform its
obligations hereunder.
(iii) Due Authorization. The execution, delivery, and
performance of this Agreement has been duly authorized by such party by
all necessary corporate action on the part thereof.
(iv) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of such party, enforceable in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereinafter in effect, affecting the enforcement of creditors'
rights and except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or in
equity).
(v) No Violation. The execution and delivery of this Agreement
by such party, the performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof and thereof applicable
to such party will not conflict with, violate, result in any breach of
any of the material terms and provisions of, or constitute (with or
without notice or lapse of time or both) a material default under, any
Requirement of Law applicable to such party or any indenture, contract,
agreement, mortgage, deed of trust, or other instrument to which such
party is a party or by which it is bound.
(vi) No Proceedings. There are no proceedings or, to the best
knowledge of such party, investigations, pending or threatened against
such party before any court, regulatory body, administrative agency or
other tribunal or governmental instrumentality seeking to prevent the
issuance of the Notes or the consummation of any of the transactions
contemplated by this Agreement, seeking any determination or ruling that,
in the reasonable judgment of such party, would materially and adversely
affect the performance by such party of its obligations under this
Agreement, or seeking any determination or ruling that would materially
and adversely affect the validity or enforceability of this Agreement.
(vii) Compliance with Requirements of Law. Such party shall duly
satisfy all obligations on its part to be fulfilled under or in
connection with the
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Receivables and the Accounts, will maintain in effect all qualifications
required under Requirements of Law in order to service properly the
Receivables and the Accounts and will comply in all material respects
with all Requirements of Law in connection with servicing the Receivables
and the Accounts the failure to comply with which would have a material
adverse effect on the interests of the Trust, the Noteholders or any
Enhancement Providers.
(viii) No Rescission or Cancellation. Such party shall not
permit any rescission or cancellation of a Receivable except as ordered
by a court of competent jurisdiction or other Governmental Authority.
(ix) Protection of Secured Parties' Rights. Such party shall
take no action, nor omit to take any action, which would impair the
rights of the Trust, the Noteholders or any Enhancement Providers in the
Receivables nor shall it reschedule, revise or defer payments due on any
Receivable except in accordance with the Floorplan Financing Guidelines.
(x) Servicer Concentration Account. The Servicer maintains
deposit accounts (collectively, the "Concentration Account") into which
it shall deposit all amounts paid by the Dealers under Floorplan
Financing Agreements. The Servicer agrees (i) that it will not change
this method of collection without the prior written consent of any
Enhancement Providers and any Agents; (ii) with respect to amounts
deposited into the Concentration Account in respect of a particular day,
that it will not transfer such amounts from the Concentration Account
until the Servicer has posted all Collections in respect of the
Receivables for such day and (iii) concurrently with the transfer of
amounts from the Concentration Account in respect of a particular day,
the Servicer will make the deposits and transfers required by the terms
of this Agreement for such day.
(xi) Negative Pledge. Except for the conveyance hereunder to the
Trust and the Liens permitted under the Transaction Documents, the
Servicer will not sell, pledge, assign or transfer to any other Person,
or grant, create, incur, assume or suffer to exist any Lien on, any
Receivable sold and assigned to the Trust, whether now existing or
hereafter created, or any interest therein, and the Servicer shall defend
the rights, title and interest of the Trust in, to and under any
Receivable sold and assigned to the Trust, whether now existing or
hereafter created, against all claims of third parties claiming through
or under the Seller or the Servicer.
(b) Notice of Breach. The representations and warranties set forth
in this Section 3.03 shall survive the transfer and assignment of the
Receivables to the Trust and the issuance of the Notes. Upon discovery by the
Seller, the Servicer, the Trust, the Owner Trustee, any Agent or the Trustee
of a breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the other parties
specified above, and to any Enhancement Providers.
(c) Purchase. In the event any representation or warranty under
Section 3.03(a)(vii), (viii) or (ix) is not true and correct in any material
respect as of the date specified
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therein with respect to any Receivable or Account and such breach has a
material adverse effect on the Noteholders' Interest in such Receivable, then,
within 30 days (or such longer period as may be agreed to by the Trustee) of
the earlier to occur of the discovery of any such event by the Seller or the
Servicer, or receipt by the Seller or the Servicer of written notice of any
such event given by the Trustee or any Enhancement Providers, the Servicer
shall purchase such Receivable or, in the case of an untrue representation
with respect to an Account, all Receivables in such Account, on the
Determination Date immediately succeeding the expiration of such 30-day period
on the terms and conditions set forth in the next succeeding paragraph;
provided, however, that no such purchase shall be required to be made with
respect to such Receivable if, by the end of such 30-day period (or such
longer period as may be agreed to by the Trustee) the breached representation
or warranty shall then be true and correct in all material respects and any
material adverse effect caused thereby shall have been cured. The Servicer
shall effect such purchase by depositing in the Collection Account in
immediately available funds an amount equal to the Purchase Price of such
Receivable. Any such deposit of such Purchase Price into the Collection
Account shall be considered a Transfer Deposit Amount and shall be applied in
accordance with the terms of this Agreement.
Upon each such payment of such Purchase Price, the Trust shall
automatically and without further action be deemed to sell, transfer, assign,
set over and otherwise convey to the Servicer, without recourse,
representation or warranty, all right, title and interest of the Trust in and
to such Receivables, all monies due or to become due with respect thereto and
all proceeds thereof and the related Collateral Security. The Trustee shall
execute such documents and instruments of transfer or assignment and take such
other actions as shall be reasonably requested by the Servicer to effect the
conveyance of any such Receivables pursuant to this Section. The obligation of
the Servicer to purchase such Receivables, and to make the deposits required
to be made to the Collection Account as provided in the preceding paragraph,
shall constitute the sole remedy respecting the event giving rise to such
obligation available to the Trust, the Noteholders (or the Trustee on behalf
of Noteholders).
SECTION 3.04 Reports and Instructions for the Trustee.
Pursuant to Section 907 of the Indenture, the Servicer will
cooperate with the Trust in completing and delivering to the Indenture Trustee
(with a copy to each Note Rating Agency) the Monthly Noteholders' Statements
provided for therein. Pursuant to Section 908 of the Indenture, the Servicer
will cooperate with the Trust in completing and delivering to the Indenture
Trustee the Payment Instructions provided for therein. Subject to the terms of
this Agreement, the Servicer shall calculate certain of the amounts and
percentages to be included in the Monthly Noteholders' Statements and the
Payment Instructions.
SECTION 3.05 Annual Servicer's Certificate.
The Servicer will deliver to the Rating Agencies, the Trustee, the
Trust, any Agent and any Enhancement Providers on or before March 31 of each
calendar year, beginning with March 31, 2005, an Officers' Certificate
substantially in the form of Exhibit C stating that (a) a review of the
activities of the Servicer during the preceding calendar year and of its
performance under this Agreement was made under the supervision of the officer
signing such certificate and (b) to the best of such officer's knowledge,
based on such review, the Servicer has
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performed in all material respects its obligations under this Agreement
throughout such year, or, if there has been a material default in the
performance of any such obligation, specifying each such default known to such
officer and the nature and status thereof. A copy of such certificate may be
obtained by any Noteholder by a request in writing to the Trustee addressed to
the Corporate Trust Office. Notwithstanding anything to the contrary in this
Section 3.05, the Servicer, in its sole discretion, may deliver, in lieu of
(or in addition to) the Officers' Certificate referred to above in this
Section 3.05, the report on compliance with servicing criteria that would be
required to be filed in respect of the Trust under the Exchange Act if
periodic reports under Section 15(d) of the Exchange Act, or any successor
provision thereto, were required to be filed in respect of the Trust.
SECTION 3.06 Annual Independent Public Accountants' Servicing
Report.
The Servicer shall cause a firm of independent certified public
accountants, who may also render other services to the Servicer or to the
Seller, to deliver to the Trustee, the Trust, the Rating Agencies, each Agent
and each Enhancement Provider on or before March 31 of each year, beginning
March 31, 2005, a report addressed to the Servicer and to the Trustee, to the
effect that such firm has examined the financial statements of the Servicer
or, if applicable, the parent corporation of the Servicer, and issued its
report thereon and that such examination: (a) was made in accordance with
generally accepted auditing standards, and accordingly included such tests of
the accounting records and such other auditing procedures as such firm
considered necessary in the circumstances, (b) included tests relating to
wholesale receivables (including financing arrangements with automobile
dealers to finance their automobile and light-duty truck inventory) serviced
for others in accordance with the requirements of the Uniform Single
Attestation Program for Mortgage Bankers, to the extent the procedures in such
program are applicable to the servicing obligations set forth in this
Agreement and (c) except as described in the report, disclosed no exceptions
or errors in the records relating to wholesale receivables (including
financing arrangements with automobile dealers to finance their automobile and
light-duty truck inventory) serviced for others that, in the firm's opinion,
paragraph four of such Uniform Single Attestation Program requires such firm
to report. A copy of such report may be obtained by any Noteholder by a
request in writing to the Trustee addressed to the Corporate Trust Office.
Notwithstanding anything to the contrary in this Section 3.06, the Servicer,
in its sole discretion, may deliver, in lieu of the accountants' report
referred to above in this Section 3.06, the attestation report of a registered
public accounting firm that would be required to be filed in respect of the
Trust under the Exchange Act if periodic reports under Section 15(d) of the
Exchange Act, or any successor provision thereto, were required to be filed in
respect of the Trust.
SECTION 3.07 Tax Treatment.
The Seller has entered into this Agreement with the intention that
the Notes will qualify under applicable tax law as indebtedness secured by the
Receivables. The Seller agrees to treat the Notes as indebtedness secured by
the Receivables for Federal income taxes, state and local income and franchise
taxes, Michigan Single Business tax and any other taxes imposed on or measured
by income.
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SECTION 3.08 Notices to DCS.
In the event DCS is no longer acting as Servicer, any Successor
Servicer appointed pursuant to Section 10.02 shall deliver or make available
to DCS, as the case may be, each certificate and report required to be
prepared, forwarded or delivered thereafter pursuant to Sections 3.04, 3.05
and 3.06.
SECTION 3.09 Adjustments.
(a) The Servicer shall adjust downward, subject to the following
sentence, the amount of any Principal Receivable because of a rebate, refund,
credit adjustment or billing error to a Dealer, or because such Receivable was
created in respect of a Vehicle which was refused or returned by a Dealer. If,
following any such adjustment downward, the Pool Balance would be less than
the Aggregate Series Nominal Liquidation Amount on the immediately preceding
Determination Date (after giving effect to the allocations, distributions,
withdrawals and deposits to be made on the Payment Date following such
Determination Date), then the Seller shall be required to pay an amount equal
to such deficiency (up to the amount of such adjustment) into the Collection
Account on the Business Day on which such adjustment or reduction occurs (each
such payment, an "Adjustment Payment"). If the Seller shall fail to make any
deposit to the Collection Account with respect to such Adjustment Payment or
portion thereof by the Determination Date relating to the Collection Period
with respect to which such Adjustment Payment is payable, the amount of such
Adjustment Payment or portion thereof shall be allocated on such related
Determination Date pro rata among the then-outstanding Series based on their
respective Series Nominal Liquidation Amounts for the Collection Period with
respect to which such deposit should have been made.
(b) If (i) the Servicer makes a deposit into the Collection Account
in respect of a Collection of a Receivable and such collection was received by
the Servicer in the form of a check which is not honored for any reason or
(ii) the Servicer makes a mistake with respect to the amount of any Collection
and deposits an amount that is less than or more than the actual amount of
such Collection, the Servicer shall appropriately adjust the amount
subsequently deposited into the Collection Account to reflect such dishonored
check or mistake. Any Receivable in respect of which a dishonored check is
received shall be deemed not to have been paid.
SECTION 3.10 Dealer Concentrations.
(a) On the last day of each Collection Period, the Servicer shall,
for purposes of determining the Required Participation Percentage for any
Series, determine (a) if the aggregate amount of Principal Receivables due
from either AutoNation, Inc. and its affiliates or United Auto Group, Inc. and
its affiliates at the close of business on such last day is greater than 4% of
the Pool Balance on such last day and (b) if the aggregate amount of Principal
Receivables due from any other Dealer or group of affiliated Dealers at the
close of business on such last day is greater than 1.5% of the Pool Balance on
such last day. The Servicer shall promptly provide the Trust and the Trustee a
report setting forth the basis for such determination. The Trustee upon
request from any Rating Agency will make such report available to such Rating
Agency.
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(b) On the last day of each Collection Period, the Servicer shall,
for purposes of determining the Dealer Overconcentrations that are used to
calculate the "Incremental Overcollateralization Amount" (as defined in the
related Indenture Supplement) for any Series, determine (a) if the aggregate
amount of Principal Receivables due from either AutoNation, Inc. and its
affiliates or United Auto Group, Inc. and its affiliates at the close of
business on such last day is greater than 4% of the Pool Balance on such last
day and (b) if the aggregate amount of Principal Receivables due from any
other Dealer or group of affiliated Dealers at the close of business on such
last day is greater than 2% of the Pool Balance on such last day. The Servicer
shall promptly provide the Trust and the Trustee a report setting forth the
basis for such determination. The Trustee upon request from any Rating Agency
will make such report available to such Rating Agency.
ARTICLE IV
DEPOSIT, Allocation and
Application of Collections AND OTHER AMOUNTS
SECTION 4.01 Interests in Receivables and Other Collateral.
The Notes issued by the Trust shall represent obligations of the
Trust secured by the Collateral, which, with respect to each Series or Class,
will consist of the right to receive, to the extent necessary to make the
required payments with respect to such Series or Class at the times and in the
amounts specified in the related Indenture Supplement, (i) the portion of
Collections allocable to such Series or Class pursuant to this Agreement, the
Indenture and the related Indenture Supplement, (ii) the funds and other
property credited to the Collection Account and the Excess Funding Account (or
any subaccounts thereof) allocable to such Series or Class pursuant to this
Agreement, the Indenture and such Indenture Supplement, (iii) funds and other
property credited to any related Series Account and (iv) funds available
pursuant to any related Enhancement Agreement (such property collectively,
with respect to all Series and all Classes, the "Noteholders' Interest"); it
being understood that the Notes of any Series or Class shall not represent any
interest in any Series Account or Enhancement Agreement for the benefit of any
other Series or Class. The Seller's Certificates shall represent the ownership
interest in the remainder of the Collateral and other property of the Trust
not allocated pursuant to this Agreement, the Indenture or any Indenture
Supplement to the Noteholders' Interest and shall include the right to receive
Collections with respect to the Receivables and other amounts at the times and
in the amounts specified in this Agreement, the Indenture or any Indenture
Supplement to be released to the Trust (the "Seller's Interest"); provided,
however, that the Seller's Certificates shall not represent any interest in
the Collection Account, the Excess Funding Account, any Series Account or any
Enhancement Agreement, except as specifically provided in this Agreement, the
Indenture or any Indenture Supplement.
SECTION 4.02 Deposits of Collections into the Collection Account.
(a) From and after the Effective Date, the Servicer shall no longer
deposit Collections into the CARCO Collection Account, and instead shall
deposit Collections directly into the Collection Account established and
maintained in the name of the Trustee pursuant to
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Section 402(a) of the Indenture. The Servicer shall make deposits into the
Collection Account at such times and in such amounts as specified below in
this Section 4.02.
(b) Except as otherwise provided in Section 4.02(c), the Servicer
shall deposit Collections into the Collection Account as promptly as possible
after the Date of Processing of such Collections, but in no event later than
the second Business Day after such Date of Processing.
(c) Notwithstanding anything in this Agreement to the contrary, for
so long as (i) DCS remains the Servicer hereunder, (ii) no Service Default has
occurred and is continuing and (iii)(x) DCS maintains a short-term rating of
at least A-1 by Standard & Poor's and P-1 by Moody's (and has maintained such
short-term ratings for five Business Days following any reduction of either
such rating), (y) DCS arranges for and maintains a letter of credit or other
form of enhancement in respect of the Servicer's obligations to make deposits
of collections on the Receivables in the Collection Account that is acceptable
in form and substance to each Rating Agency and any Agents or (z) DCS
otherwise obtains the Rating Agency confirmations described below, then,
subject to any limitations in the confirmations described below, the Servicer
need not make the daily deposits of Collections into the Collection Account as
provided in this Section 4.02, but may make a single deposit into the
Collection Account in same-day or next-day funds not later than 11:00 A.M.,
New York City time, on the Payment Date in a net amount equal to the amount
which would have been on deposit with respect to the immediately preceding
Collection Period in the Collection Account; provided, however, that prior to
ceasing daily deposits as described above the Seller shall have delivered to
the Trustee written confirmation from each of the Rating Agencies that the
failure by DCS to make daily deposits will not result in a reduction or
withdrawal of the rating of any outstanding Series or Class. Notwithstanding
anything to the contrary in this Section 4.02(c), if DCS no longer maintains a
short-term rating from either Standard & Poor's or Moody's, DCS may continue
to make monthly net deposits of Collections into the Collection Account in
accordance with this Section 4.02(c) so long as (i) DCS remains the Servicer
hereunder, (ii) no Service Default has occurred and is continuing and (iii)
DaimlerChrysler North America Holding Corporation maintains a short-term
rating of at least A-1 by Standard & Poor's and P-1 by Moody's (and has
maintained such short-term ratings for five Business Days following any
reduction of either such rating).
(d) Subject to Section 4.04, but notwithstanding anything else in
this Agreement to the contrary, with respect to any Collection Period, whether
the Servicer is required to make deposits of Collections pursuant to paragraph
(b) or (c) above, (i) the Servicer will only be required to deposit
Collections into the Collection Account up to the aggregate amount of
Collections required to be deposited into the Excess Funding Account or any
Series Account or, without duplication, distributed on the related Payment
Date to Noteholders, to any Agent or to any Enhancement Provider pursuant to
the terms of the Indenture or any Indenture Supplement or Enhancement
Agreement and (ii) if at any time prior to such Payment Date the amount of
Collections deposited in the Collection Account exceeds the amount required to
be deposited pursuant to clause (i) above, the Servicer will be permitted to
withdraw the excess from the Collection Account.
(e) Pursuant to the authority granted to the Servicer in Section
3.01(a), the Servicer shall have the power, revocable by the Trustee, to
instruct the Trustee to make
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withdrawals and payments from the Collection Account for the purposes of
carrying out the Servicer's or the Trustee's duties specified in this
Agreement, the Indenture or an Indenture Supplement, as the case may be.
SECTION 4.03 Allocations of Collections and Other Amounts to Each
Series.
(a) All Interest Collections, Principal Collections, Miscellaneous
Payments and Defaulted Amounts will be allocated to each Series from and after
the related Series Cut-Off Date according to the applicable Series Allocation
Percentage for such Series, as specified in the related Indenture Supplement.
Interest Collections, Principal Collections and Miscellaneous Payments so
allocated to any Series will not be available for the benefit of any other
Series, except to the extent expressly provided in this Agreement, the
Indenture or the related Indenture Supplements, as the case may be.
Allocations of Interest Collections, Principal Collections and Miscellaneous
Payments to be performed by the Servicer (i) with respect to each Series and
(ii) if applicable, among the Classes of a Series and any related Enhancement
Provider will be set forth in the related Indenture Supplement or Supplements.
The application of such allocated Interest Collections, Principal Collections
and Miscellaneous Payments will also be set forth in the related Indenture
Supplement or Supplements.
(b) For purposes of determining each Series' Series Allocation
Percentage in connection with the allocation of Interest Collections,
Principal Collections, Miscellaneous Payments and Defaulted Amounts for the
specified Collection Period:
(i) unless the related Indenture Supplement shall provide
otherwise, each Series upon issuance shall be deemed to have been created
and in existence as of the first day of the first Collection Period to
occur after the Series Cut-Off Date and, as a result, shall be allocated
(based on its applicable Series Allocation Percentage) its allocable
portion of Interest Collections, Principal Collections, Defaulted Amounts
and Miscellaneous Payments for such Collection Period; and
(ii) unless the related Indenture Supplement shall provide
otherwise, with respect to any Series, if (x) as of the last day of any
Collection Period the amounts on deposit in the Collection Account, the
Excess Funding Account and the related Series Accounts with respect to
such Collection Period are sufficient to pay in full all amounts payable
by the Trust on or with respect to the Notes of such Series on the
Payment Date relating to such Collection Period (after giving effect to
the allocations, distributions, withdrawals and deposits to be made on
such related Payment Date) then (y) such Series shall be deemed to have
been paid in full on such last day and, as a result, shall not be
allocated any portion of Interest Collections, Principal Collections,
Defaulted Amounts and Miscellaneous Payments for any subsequent
Collection Period. For purposes of making the determination in clause (x)
above, on the date of any such determination it shall be assumed that any
theretofore unpaid Adjustment Payments with respect to the immediately
preceding Collection Period shall be allocated to such Series on the
related Determination Date and shall be payable from amounts allocated to
or available with respect to such Series on the related Payment Date.
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SECTION 4.04 Allocations of Collections to the Seller.
(a) Subject to Sections 4.04(c) and (d), the Servicer shall instruct
the Trustee on each Deposit Date to withdraw an amount equal to the Seller's
Percentage for the related Collection Period of Interest Collections deposited
in the Collection Account for such Deposit Date (the "Seller's Interest
Collections") and to release such Seller's Interest Collections to the Trust
for distribution in respect of the Seller's Certificates pursuant to the Trust
Agreement.
(b) Subject to Section 4.04(c) and (d), the Servicer shall instruct
the Trustee on each Deposit Date to withdraw an amount equal to the Seller's
Percentage for the related Collection Period of Principal Collections
deposited in the Collection Account for such Deposit Date (the "Seller's
Principal Collections") and to release such Seller's Principal Collections to
the Trust for distribution in respect of the Seller's Certificates pursuant to
the Trust Agreement, so long as the Pool Balance (determined after giving
effect to any Principal Receivables transferred to the Trust on such Payment
Date) equals or exceeds the Aggregate Series Nominal Liquidation Amount for
the immediately preceding Determination Date (after giving effect to the
allocations, distributions, withdrawals and deposits to be made on such
Payment Date); it being understood that any Seller's Principal Collections not
otherwise released to the Trust as a result of the condition specified in this
Section 4.04(b) shall be retained in the Collection Account and included as
part of the Unallocated Principal Collections held therein.
(c) The withdrawals to be made from the Collection Account pursuant
to Section 4.04(a) or (b) do not apply to deposits into the Collection Account
that do not represent Collections, including Miscellaneous Payments, payment
of the purchase price for the Noteholders' Interest pursuant to Section 2.03,
and proceeds from the sale, disposition or liquidation of Receivables pursuant
to an exercise of the "Put Feature" under and as defined in the Indenture or
any Indenture Supplement.
(d) Notwithstanding Section 4.04(a) or (b), with respect to each
Payment Date the Servicer shall instruct the Trustee to retain the Note PFA
Earnings Shortfall for such Payment Date from the amounts that would otherwise
be released to the Trust for distribution in respect of the Seller's
Certificates pursuant to the Trust Agreement and to apply such Note PFA
Earnings Shortfall under the Indenture Supplements.
SECTION 4.05 Repurchased Receivables Purchase Price Payments.
On each Payment Date, amounts on deposit in the Collection Account
on such Payment Date resulting from payment by the Seller of the Repurchased
Receivables Purchase Price pursuant to Section 2.07(c) shall be applied as
follows: first, to fund any unpaid Miscellaneous Payments due on or prior to
such Payment Date and second, an amount equal to the product of (i) the amount
of the Repurchased Receivables Purchase Price initially deposited by the
Seller in the Collection Account pursuant to Section 2.07(c) and (ii) the
Monthly Payment Rate for the immediately preceding Collection Period, shall be
treated as Principal Collections collected in the immediately preceding
Collection Period. Notwithstanding anything to the contrary in this Agreement,
including Section 2.07(c), the Seller shall not be required to make any
deposit into the Collection Account in respect of the Repurchased Receivables
Purchase
52
Price of any receivables repurchased by the Seller from the Trust pursuant to
this Agreement, including Section 2.07(c).
SECTION 4.06 Excess Funding Account; Deposits, Allocations and
Withdrawals.
(a) From and after the Effective Date, Excess Available Principal
Amounts shall no longer be subject to deposit into the CARCO Excess Funding
Account as provided in Section 4.04 of the Series 2002-CC Supplement, and
instead shall be subject to deposit by the Trustee into the Excess Funding
Account established and maintained in the name of the Trustee pursuant to
Section 402(b) of the Indenture. The Trustee shall make deposits into the
Excess Funding Account at such times and in such amounts as specified below in
this Section 4.06.
(b) On each Payment Date, commencing with the initial Payment Date
hereunder, the aggregate amount of Excess Available Principal Amounts, if any,
for the related Collection Period shall be applied as follows:
(i) first, deposited into the Excess Funding Account in an
amount equal to the excess, if any, of:
(A) the sum of (1) the aggregate Outstanding Dollar
Principal Amount of all Series of Notes and (2) the sum of the
Overcollateralization Amounts for all Series of Notes; over
(B) the sum of (1) the Aggregate Series Nominal Liquidation
Amount, (2) the aggregate amount on deposit in the Principal Funding
Accounts (other than any net investment earnings) for all Series of
Notes and (3) the amount on deposit in the Excess Funding Account
(other than any net investment earnings); it being understood that,
solely for the purpose of this subclause (B), the Aggregate Series
Nominal Liquidation Amount will be reduced by an amount equal to the
quotient obtained by dividing (x) the excess, if any, of the
Required Participation Amount (less the sum of the Incremental
Overcollateralization Amounts for all Series) over the Pool Balance
(less the sum of the Overconcentration Amount and the aggregate
amount of Ineligible Receivables), in each case, after giving effect
to any Principal Receivables transferred to the Trust on that
Payment Date and the allocations, distributions, withdrawals and
deposits to be made on that Payment Date (other than any deposits
into the Excess Funding Account that may be required to be made on
that Payment Date) by (y) the sum of the weighted average of the
Required Participation Percentages for each Series of Notes plus the
weighted average of the Overcollateralization Percentages used
for purposes of determining the Overcollateralization Amounts for
each Series of Notes; and
(ii) second, after giving effect to the immediately preceding
clause (i), the remaining Excess Available Principal Amounts, if any,
shall be released to the Trust for distribution in respect of the
Seller's Certificates pursuant to the Trust Agreement, so long as the
Pool Balance (determined after giving effect to any Principal Receivables
transferred to the Trust on such Payment Date) equals or exceeds the
Aggregate Series
53
Nominal Liquidation Amount for the immediately preceding Determination
Date (after giving effect to the allocations, distributions, withdrawals
and deposits to be made on such Payment Date); it being understood that
any Excess Available Principal Amounts not otherwise paid to the Trust as
a result of the condition specified in this clause (ii) shall be
transferred to the Collection Account and included as part of the
Unallocated Principal Collections held therein.
(c) All interest and earnings (net of losses and investment
expenses) on funds on deposit in the Excess Funding Account shall be allocated
to each Series of Notes pro rata on the basis of its Series Nominal
Liquidation Amount and on each Payment Date shall be withdrawn by the Trustee
for application under the Indenture Supplement for such Series of Notes;
provided, however, that beginning on the second Payment Date following the end
of the revolving period for a Series of Notes, no further net investment
earnings on funds in the Excess Funding Account shall be allocated to such
Series of Notes, unless the revolving period for such Series has recommenced
in accordance with the related Indenture Supplement.
(d) Amounts (other than investment earnings) being deposited to the
Excess Funding Account from Excess Available Principal Amounts pursuant to
Section 4.06(b)(i) shall be allocated to each Series of Notes (other than any
Series of Notes that is not in its revolving period) pro rata on the basis of
its Series Nominal Liquidation Amount. On the Payment Date next following the
end of the revolving period for a Series of Notes, any funds (other than
investment earnings) on deposit in the Excess Funding Account that are
allocable to such Series of Notes shall be withdrawn by the Trustee for
application under the Indenture Supplement for such Series of Notes.
(e) On each Determination Date, the Seller shall determine whether
the sum of the Aggregate Series Nominal Liquidation Amount (after giving
effect to the allocations, distributions, withdrawals and deposits to be made
on the Payment Date following such Determination Date), the amount on deposit
in the Excess Funding Account (other than any investment earnings) and the
amount on deposit in the Principal Funding Accounts for all Series of Notes
(other than any investment earnings) is greater than the aggregate Outstanding
Dollar Principal Amount of all Series of Notes plus the aggregate
Overcollateralization Amount for all Series of Notes. If on any such
Determination Date such sum is greater than the aggregate Outstanding
Principal Dollar Amount of all Series of Notes plus the aggregate
Overcollateralization Amount for all Series of Notes and thus there are
sufficient Principal Receivables in the Trust to permit an increase in the
Aggregate Series Nominal Liquidation Amount without causing an Early
Redemption Event to occur with respect to any outstanding Series of Notes, the
Seller shall notify the Trustee of the amount of the increase in the Aggregate
Series Nominal Liquidation Amount. Subject to the provisions set forth below
in this Section 4.06(e), upon receipt of such notice, the Aggregate Series
Nominal Liquidation Amount shall be increased by the amount specified, and the
Servicer shall instruct the Trustee to withdraw from the Excess Funding
Account and release to the Trust for distribution pursuant to the Trust
Agreement on the immediately succeeding Payment Date, an amount equal to the
amount of such increase in the Aggregate Series Nominal Liquidation Amount.
Such payment shall be in payment or partial payment pursuant to the
Receivables Purchase Agreement for additional Principal Receivables
transferred to the Trust. To the extent that the Aggregate Series Nominal
Liquidation Amount is increased by release of funds to the Trust, the Seller's
Interest shall be
54
reduced by the amount of such payment. Such increase in the Aggregate Series
Nominal Liquidation Amount shall be allocated among each Series of Notes
(other than any Series of Notes that is not in its revolving period) pro rata
on the basis of the Series Nominal Liquidation Amounts of such Series of
Notes. In addition, any increase in the Aggregate Series Nominal Liquidation
Amount is subject to the condition that, after giving effect to such increase,
the Pool Balance equals or exceeds the Required Participation Amount (after
giving effect to the allocations, distributions, withdrawals and deposits). In
connection with the foregoing release of funds from the Excess Funding
Account, the Seller shall endeavor (taking into account any seasonality
experienced in the Accounts in the Trust) to minimize the amounts on deposit,
from time to time, in the Excess Funding Account.
(f) Pursuant to the authority granted to the Servicer in Section
3.01(a), the Servicer shall have the power, revocable by the Trustee, to
instruct the Trustee to make withdrawals and payments from the Excess Funding
Account for the purposes of carrying out the Servicer's or the Trustee's
duties specified in this Agreement, the Indenture or an Indenture Supplement,
as the case may be.
SECTION 4.07 Unallocated Principal Collections.
The sum of those Seller's Principal Collections retained in the
Collection Account pursuant to Section 4.04(b) and those Excess Available
Principal Amounts transferred to the Collection Account pursuant to Section
4.06(b)(ii) (such sum, the "Unallocated Principal Collections") shall be
released to the Trust for distribution in respect of the Seller's Certificates
pursuant to the Trust Agreement at the time the Pool Balance (determined after
giving effect to any Principal Receivables transferred to the Trust at such
time) exceeds the Aggregate Series Nominal Liquidation Amount for the
immediately preceding Determination Date (after giving effect to the
allocations, distributions, withdrawals and deposits to be made on the Payment
Date immediately following such Determination Date); provided, however, that
any Unallocated Principal Collections on deposit in the Collection Account at
any time during which any Series is not in its revolving period shall be
deemed to be Miscellaneous Payments and shall be allocated to each Series as
provided in Section 4.03(a).
ARTICLE V
[RESERVED]
ARTICLE VI
[reserved]
ARTICLE VII
OTHER MATTERS RELATING TO THE SELLER
SECTION 7.01 Liability of the Seller.
The Seller shall be liable for all obligations, covenants,
representations and warranties of the Seller arising under or related to this
Agreement. Except as provided in the
55
preceding sentence, the Seller shall be liable only to the extent of the
obligations specifically undertaken by it in its capacity as Seller hereunder.
SECTION 7.02 Limitation on Liability of the Seller.
Subject to Sections 7.01 and 7.03, neither the Seller nor any of the
directors or officers or employees or agents of the Seller in its capacity as
Seller shall be under any liability to the Trust, the Owner Trustee, the
Trustee, the Noteholders or any other Person for any action taken or for
refraining from the taking of any action in the capacity as Seller pursuant to
this Agreement whether arising from express or implied duties under this
Agreement; provided, however, that this provision shall not protect the Seller
or any such Person against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Seller and any director or officer or employee or agent
of the Seller may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder.
SECTION 7.03 Seller Indemnification of the Trust, the Trustee, the
Owner Trustee and the Enhancement Providers.
The Seller shall indemnify and hold harmless the Trust, the Trustee,
the Owner Trustee and the Enhancement Providers, from and against any loss,
liability, expense, damage or injury suffered or sustained by reason of any
acts, omissions or alleged acts or omissions arising out of activities of the
Trust, the Trustee or the Owner Trustee pursuant to this Agreement, including
any judgment, award, settlement, reasonable attorneys' fees and other costs or
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim; provided, however, that the Seller shall not
indemnify the Trust, the Trustee, the Owner Trustee or any Enhancement
Provider if the acts, omissions or alleged acts or omissions of such Person
constitute fraud, gross negligence, breach of fiduciary duty or willful
misconduct by such Person; and provided, further, that the Seller shall not
indemnify the Trust, the Trustee or the Owner Trustee for any liabilities,
cost or expense of the Trust with respect to any action taken by such Person
at the request of any Noteholder, Enhancement Provider or holder of a
Supplemental Certificate to the extent the Trust, the Trustee or the Owner
Trustee, as the case may be, is indemnified by such Noteholder, Enhancement
Provider or holder of a Supplemental Certificate with respect to such action,
or with respect to any Federal, state or local income or franchise taxes (or
any interest or penalties with respect thereto) required to be paid by the
Trust or any Noteholder, Enhancement Provider or holder of a Supplemental
Certificate in connection herewith or with the Notes, the Indenture, any
Indenture Supplement, any Enhancement Agreement, the Supplemental Certificates
or the Trust Agreement to any taxing authority. Subject to Section 7.01, any
indemnification pursuant to this Section shall only be from (i) the excess of
the Seller's Interest for any date of determination over the Required
Participation Amount as of such date and (ii) any other assets of the Seller
not pledged to third parties or otherwise encumbered in a manner permitted by
the Seller's organizational documents and shall only be made after payment in
full of any amounts that the Seller is obligated to deposit in the Collection
Account pursuant to this Agreement. Any indemnification under this Article VII
shall survive the termination of this Agreement.
56
SECTION 7.04 Transfer of Seller's Interest to Designated Affiliate.
(a) Notwithstanding anything to the contrary contained in this
Agreement, DCWR may sell, transfer, assign and otherwise convey all, but not
less than all, of its right, title and interest in the Collateral of the
Trust, the Seller's Interest, the DCMOT Certificate, this Agreement, the
Related Documents and any other agreement, document or instrument relating to
this Agreement or the transactions contemplated hereby and its obligations as
Seller hereunder and thereunder to a Designated Affiliate (such transaction is
referred to herein as the "Designated Affiliate Transfer"); provided that such
Designated Affiliate assumes the performance of every covenant and obligation
of DCWR under this Agreement, the Related Documents and any such other
agreement, document or instrument. Such assignment and assumption shall
automatically occur ten Business Days following the date notice thereof is
given by DCWR to the Trust, the Trustee, the Rating Agencies, any Agent and
any Enhancement Providers or on such later date as of which the conditions set
forth in Section 7.04(b) are satisfied.
(b) The Designated Affiliate Transfer may not be effected unless and
until the following conditions precedent are satisfied:
(i) DCWR, the Designated Affiliate and the Trust shall have
executed and delivered an Assignment and Assumption Agreement, which
shall be acknowledged and agreed to by the Trustee, and the Designated
Affiliate shall have delivered to the Trust and the Trustee the Opinion
of Counsel substantially in the form attached to the Assignment and
Assumption Agreement;
(ii) DCWR shall have delivered to the Trust and the Trustee an
Officers' Certificate and an Opinion of Counsel to the effect that each
condition precedent (including the requirement with respect to all
required filings) provided by this Section 7.04(b) have been complied
with;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such Designated Affiliate Transfer;
(iv) DCWR shall have delivered to the Trust and the Trustee an
Issuer Tax Opinion (as defined in the Indenture) with respect to
such Designated Affiliate Transfer; and
(v) all filings required to continue the perfection of the
respective interests of the Trust and of the Trustee, as the
assignee of the Trust, in the Receivables and the Collateral
Security shall have been duly made by such Designated Affiliate.
(c) Upon such transfer, the Designated Affiliate shall be deemed to
have made all the representations and warranties of the Seller made in this
Agreement as of the date of effectiveness of the Designated Affiliate
Transfer. Upon the effectiveness of the Designated Affiliate Transfer, the
Seller shall surrender the DCMOT Certificate to the Owner Trustee for
registration of transfer and, upon the issuance of the new DCMOT Certificate
in the name of the Designated Affiliate, all as provided for in the Trust
Agreement, the term "Seller" or "DCWR" in this Agreement shall refer to such
Designated Affiliate.
57
ARTICLE VIII
Other Matters Relating to the Servicer
SECTION 8.01 Liability of the Servicer.
The Servicer shall be liable under this Article VIII only to the
extent of the obligations specifically undertaken by the Servicer in its
capacity as Servicer.
SECTION 8.02 Merger or Consolidation of, or Assumption of, the
Obligations of the Servicer.
The Servicer shall not consolidate with or merge into any other
Person or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(a) the Person formed by such consolidation or into which the
Servicer is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Servicer substantially as an entirety shall be a
Person organized and existing under the laws of the United States of America
or any State or the District of Columbia and, if the Servicer is not the
surviving entity, such Person shall assume, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, the
performance of every covenant and obligation of the Servicer hereunder; and
(b) the Servicer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such consolidation,
merger, conveyance or transfer comply with this Section 8.02 and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
SECTION 8.03 Limitation on Liability of the Servicer and Others.
Except as provided in Section 8.04, neither the Servicer nor any of
the directors or officers or employees or agents of the Servicer, shall be
under any liability to the Trust, the Owner Trustee, the Trustee, the
Noteholders or any other Person for any action taken or for refraining from
the taking of any action in its capacity as Servicer pursuant to this
Agreement; provided, however, that this provision shall not protect the
Servicer or any such Person against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Servicer and any director or officer or employee or
agent of the Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Servicer shall not be under any obligation to appear
in, prosecute or defend any legal action which is not incidental to its duties
to service the Receivables in accordance with this Agreement which in its
reasonable opinion may involve it in any expense or liability.
58
SECTION 8.04 Servicer Indemnification of the Trust, the Trustee, the
Owner Trustee and the Enhancement Providers.
The Servicer shall indemnify and hold harmless the Trust, the
Trustee, the Owner Trustee and the Enhancement Providers, from and against any
loss, liability, expense, damage or injury suffered or sustained by reason of
any acts, omissions or alleged acts or omissions arising out of activities of
the Servicer, the Trust, the Trustee or the Owner Trustee pursuant to this
Agreement, including any judgment, award, settlement, reasonable attorneys'
fees and other costs or expenses incurred in connection with the defense of
any actual or threatened action, proceeding or claim; provided, however, that
the Servicer shall not indemnify the Trust, the Trustee, the Owner Trustee or
any Enhancement Provider if the acts, omissions or alleged acts or omissions
of such Person constitute fraud, gross negligence, breach of fiduciary duty or
willful misconduct by such Person; and provided, further, that the Servicer
shall not indemnify the Trust, the Trustee or the Owner Trustee for any
liabilities, cost or expense of the Trust with respect to any action taken by
such Person at the request of any Noteholder, Enhancement Provider or holder
of a Seller's Certificate to the extent the Trust, the Trustee or the Owner
Trustee, as the case may be, is indemnified by such Noteholder, Enhancement
Provider or holder of a Seller's Certificate with respect to such action, or
with respect to any Federal, state or local income or franchise taxes (or any
interest or penalties with respect thereto) required to be paid by the Trust
or any Noteholder, Enhancement Provider or holder of a Seller's Certificate in
connection herewith or with the Notes, the Indenture, any Indenture
Supplement, any Enhancement Agreement, the Seller's Certificates or the Trust
Agreement to any taxing authority. Any indemnification under this Article VIII
shall survive the termination of this Agreement and the resignation and
removal of the Trustee.
SECTION 8.05 The Servicer Not to Resign.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except upon determination that (a) the performance of its duties
hereunder is no longer permissible under applicable law and (b) there is no
reasonable action which the Servicer could take to make the performance of its
duties hereunder permissible under applicable law. Any such determination
permitting the resignation of the Servicer shall be evidenced as to clause (a)
above by an Opinion of Counsel to such effect delivered to the Trust and the
Trustee. No such resignation shall become effective until the Trustee or a
Successor Servicer shall have assumed the responsibilities and obligations of
the Servicer in accordance with Section 10.02 hereof. If the Trustee is unable
within 120 days of the date of such determination to appoint a Successor
Servicer, the Trustee shall serve as Successor Servicer hereunder.
SECTION 8.06 Access to Certain Documentation and Information
Regarding the Receivables.
The Servicer shall provide to the Trustee access to the
documentation regarding the Accounts and the Receivables in such cases where
the Trustee is required in connection with the enforcement of the rights of
the Noteholders, or by applicable statutes or regulations to review such
documentation, such access being afforded without charge but only (a) upon
reasonable request, (b) during normal business hours, (c) subject to the
Servicer's normal security and confidentiality procedures and (d) at offices
designated by the Servicer. Nothing in
59
this Section 8.06 shall derogate from the obligation of the Seller, the Trust,
the Trustee or the Servicer to observe any applicable law prohibiting
disclosure of information regarding the Dealers and the failure of the
Servicer to provide access as provided in this Section 8.06 as a result of
such obligation shall not constitute a breach of this Section 8.06.
SECTION 8.07 Delegation of Duties.
Subject to Section 3.01, in the ordinary course of business, the
Servicer may at any time delegate any duties hereunder to any Person who
agrees to conduct such duties in accordance with the Floorplan Financing
Guidelines and this Agreement. The Servicer shall give prompt written notice
of any such delegation of a material function to the Note Rating Agencies, any
Agent and any Enhancement Providers. Such delegation shall not relieve the
Servicer of its liability and responsibility with respect to such duties, and
shall not constitute a resignation within the meaning of Section 8.05 and the
Rating Agency Condition shall have been satisfied with respect to such
delegation prior to such delegation.
SECTION 8.08 Examination of Records.
The Seller and the Servicer shall indicate generally in its computer
files or other records that the Receivables arising in the Accounts have been
conveyed to the Trust pursuant to this Agreement. The Seller and the Servicer
shall, prior to the sale or transfer to a third party of any receivable held
in its custody, examine its computer and other records to determine that such
receivable is not a Receivable.
SECTION 8.09 Optional Repurchase by the Servicer.
Pursuant to Section 1202 of the Indenture, and subject to the
conditions set forth therein, the Servicer shall have the right, but not the
obligation, to cause the Trust to redeem a Series or Class of Notes in whole
but not in part by paying to the Trust the applicable redemption price for
such Series or Class of Notes.
ARTICLE IX
[RESERVED]
ARTICLE X
Service Defaults
SECTION 10.01 Service Defaults.
If any one of the following events (a "Service Default") shall occur
and be continuing with respect to the Servicer:
(a) any failure by the Servicer to make any payment, transfer or
deposit or to give instructions or to give notice to the Trustee to make such
payment, transfer or deposit or to give notice to the Trustee as to any action
to be taken under any Enhancement Agreement on or before the date occurring
five days after the date such payment, transfer or deposit or such
60
instruction or notice is required to be made or given, as the case may be,
under the terms of this Agreement, the Indenture or any Indenture Supplement;
(b) failure on the part of the Servicer duly to observe or perform
any other covenants or agreements of the Servicer set forth in this Agreement,
the Indenture or any Indenture Supplement which has a material adverse effect
on the Noteholders of any Series, which continues unremedied for a period of
30 days after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Servicer by the Trustee; or
the Servicer shall delegate its duties under this Agreement, except as
permitted by Sections 3.01 and 8.07;
(c) any representation, warranty or certification made by the
Servicer in this Agreement or in any certificate delivered pursuant to this
Agreement shall prove to have been incorrect when made, which has a material
adverse effect on the rights of the Noteholders of any Series and which
material adverse effect continues for a period of 60 days after the date on
which written notice thereof, requiring the same to be remedied, shall have
been given to the Servicer by the Trustee;
(d) the Servicer shall consent to the appointment of a conservator
or receiver or liquidator or other similar official in any bankruptcy,
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to the Servicer or of or relating to all or
substantially all of its property, or a decree or order of a court or agency
or supervisory authority having jurisdiction in the premises for the
appointment of a conservator or receiver or liquidator or other similar
official in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of
its affairs, shall have been entered against the Servicer and such decree or
order shall have remained in force undischarged or unstayed; or the Servicer
shall admit in writing its inability to pay its debts generally as they become
due, file a petition to take advantage of any applicable bankruptcy,
insolvency or reorganization statute, make any assignment for the benefit of
its creditors or voluntarily suspend payment of its obligations;
then, in the event of any Service Default, so long as the Service Default
shall not have been remedied, the Trustee, by notice then given in writing to
the Servicer (a "Termination Notice"), may terminate all but not less than all
of the rights and obligations (other than its obligations that have accrued up
to the time of such termination) of the Servicer as Servicer under this
Agreement and in and to the Receivables and the proceeds thereof. After
receipt by the Servicer of a Termination Notice, and on the date that a
Successor Servicer shall have been appointed by the Trustee pursuant to
Section 10.02, all authority and power of the Servicer under this Agreement
shall pass to and be vested in a Successor Servicer (a "Service Transfer")
and, without limitation, the Trustee is hereby authorized and empowered (upon
the failure of the Servicer to cooperate) to execute and deliver, on behalf of
the Servicer, as attorney-in-fact or otherwise, all documents and other
instruments upon the failure of the Servicer to execute or deliver such
documents or instruments, and to do and accomplish all other acts or things
necessary or appropriate to effect the purposes of such Service Transfer. The
Servicer agrees to cooperate with the Trustee and such Successor Servicer in
effecting the termination of the responsibilities and rights of the Servicer
to conduct servicing hereunder, including the transfer to such Successor
Servicer of all authority of the Servicer to service the Receivables provided
for
61
under this Agreement, including all authority over all Collections which shall
on the date of transfer be held by the Servicer for deposit, or which have
been deposited by the Servicer, in the Collection Account, or which shall
thereafter be received with respect to the Receivables, and in assisting the
Successor Servicer. The Servicer shall promptly transfer its electronic
records relating to the Receivables to the Successor Servicer in such
electronic form as the Successor Servicer may reasonably request and shall
promptly transfer to the Successor Servicer all other records, correspondence
and documents necessary for the continued servicing of the Receivables in the
manner and at such times as the Successor Servicer shall reasonably request.
To the extent that compliance with this Section 10.01 shall require the
Servicer to disclose to the Successor Servicer information of any kind which
the Servicer reasonably deems to be confidential, the Successor Servicer shall
be required to enter into such customary licensing and confidentiality
agreements as the Servicer shall deem necessary to protect its interest.
Notwithstanding the foregoing, a delay in or failure of performance
under Section 10.01(a) for a period of ten Business Days or under Section
10.01(b) or (c) for a period of 60 Business Days shall not constitute a
Service Default if such delay or failure could not be prevented by the
exercise of reasonable diligence by the Servicer and such delay or failure was
caused by an act of God or the public enemy, acts of declared or undeclared
war, public disorder, rebellion or sabotage, epidemics, landslides, lightning,
fire, hurricanes, earthquakes, floods or similar causes. The preceding
sentence shall not relieve the Servicer from using its best efforts to perform
its respective obligations in a timely manner in accordance with the terms of
this Agreement and the Servicer shall provide the Trustee, any Agents, any
Enhancement Providers, the Seller, the Trust and the Noteholders with an
Officers' Certificate giving prompt notice of such failure or delay by it,
together with a description of its efforts so to perform its obligations. The
Servicer shall immediately notify the Trustee, the Seller and the Rating
Agencies in writing of any Service Default.
SECTION 10.02 Trustee to Act; Appointment of Successor.
(a) On and after the receipt by the Servicer of a Termination Notice
pursuant to Section 10.01, the Servicer shall continue to perform all
servicing functions under this Agreement until the date specified in the
Termination Notice or otherwise specified by the Trustee in writing or, if no
such date is specified in such Termination Notice, or otherwise specified by
the Trustee, until a date mutually agreed upon by the Servicer and the
Trustee. The Trustee shall as promptly as possible after the giving of a
Termination Notice appoint an Eligible Servicer as a successor servicer (the
"Successor Servicer"), subject to the consent of any Enhancement Providers and
any Agents, which consent shall not be unreasonably withheld, and such
Successor Servicer shall accept its appointment by a written assumption in a
form acceptable to the Trustee. In the event that a Successor Servicer has not
been appointed or has not accepted its appointment at the time when the
Servicer ceases to act as Servicer, the Trustee without further action shall
automatically be appointed the Successor Servicer. The Trustee may delegate
any of its servicing obligations to an affiliate or agent in accordance with
Sections 3.01 and 8.07. Notwithstanding the above, the Trustee shall, if it is
legally unable so to act, petition a court of competent jurisdiction to
appoint any established institution having a net worth of not less than
$100,000,000 and whose regular business includes the servicing of wholesale
receivables as the Successor Servicer hereunder. The Trustee shall immediately
give notice to
62
the Trust, the Note Rating Agencies, any Enhancement Providers, any Agents and
the Noteholders upon the appointment of a Successor Servicer.
(b) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing functions
under this Agreement and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof (except that the Successor Servicer shall not be liable for
any liabilities incurred by the predecessor Servicer), and all references in
this Agreement to the Servicer shall be deemed to refer to the Successor
Servicer. Any Successor Servicer, by its acceptance of its appointment, will
automatically agree to be bound by the terms and provisions of any Enhancement
Agreement.
(c) In connection with any Termination Notice, the Trustee will
review any bids which it obtains from Eligible Servicers and shall be
permitted to appoint any Eligible Servicer submitting such a bid as a
Successor Servicer for servicing compensation not in excess of the Servicing
Fee (provided that if all such bids exceed the Servicing Fee the Seller at its
own expense shall pay when due the amount of any compensation in excess of the
Servicing Fee); provided, however, that the Seller shall be responsible for
payment of the Seller's portion of the Servicing Fee as determined pursuant to
this Agreement and all other amounts in excess of the Aggregate Series
Servicing Fee, and that no such monthly compensation paid out of Collections
shall be in excess of the Aggregate Series Servicing Fee permitted to the
Servicer. The holders of the Seller's Certificates agree that if DCS (or any
Successor Servicer) is terminated as Servicer hereunder, the portion of
Collections to be released to the Trust for distribution in respect of the
Seller's Certificates pursuant to the Trust Agreement shall be reduced by an
amount sufficient to pay Seller's share of the compensation of the Successor
Servicer.
(d) All authority and power granted to the Successor Servicer under
this Agreement shall automatically cease and terminate upon termination of the
Trust pursuant to Section 7.01 of the Trust Agreement, and shall pass to and
be vested in the Seller and, without limitation, the Seller is hereby
authorized and empowered to execute and deliver, on behalf of the Successor
Servicer, as attorney-in-fact or otherwise, all documents and other
instruments, and to do and accomplish all other acts or things necessary or
appropriate to effect the purposes of such transfer of servicing rights. The
Successor Servicer agrees to cooperate with the Seller in effecting the
termination of the responsibilities and rights of the Successor Servicer to
conduct servicing on the Receivables. The Successor Servicer shall transfer
its electronic records relating to the Receivables to the Seller in such
electronic form as the Seller may reasonably request and shall transfer all
other records, correspondence and documents to the Seller in the manner and at
such times as the Seller shall reasonably request. To the extent that
compliance with this Section 10.02 shall require the Successor Servicer to
disclose to the Seller information of any kind which the Successor Servicer
deems to be confidential, the Seller shall be required to enter into such
customary licensing and confidentiality agreements as the Successor Servicer
shall deem necessary to protect its interests.
63
ARTICLE XI
[reserved]
ARTICLE XII
Termination
SECTION 12.01 Termination of Agreement.
This Agreement and the respective obligations and responsibilities
of the Seller, the Servicer and the Trust shall terminate, except with respect
to the duties described in Sections 7.03 and 8.04, upon the Trust Termination
Date. The Servicer will give the Rating Agencies prompt notice of the
occurrence of the Trust Termination Date.
ARTICLE XIII
Miscellaneous Provisions
SECTION 13.01 Amendment.
(a) This Agreement may be amended from time to time (including in
connection with the issuance of a Supplemental Certificate pursuant to the
Trust Agreement) by the Servicer, the Seller and the Trust without the consent
of any of the Noteholders; provided that (i) such action shall not, as
evidenced by an Opinion of Counsel for the Seller, addressed and delivered to
the Trust and the Trustee, adversely affect in any material respect the
interests of any Noteholder and (ii) the Trustee shall have received written
confirmation from each Note Rating Agency that such amendment will not have a
Ratings Effect.
(b) This Agreement may also be amended from time to time (including
in connection with the issuance of a Supplemental Certificate pursuant to the
Trust Agreement) by the Servicer, the Seller and the Trust, with the consent
of the Holders of Notes evidencing not less than 66-2/3% of the aggregate
Outstanding Dollar Principal Amount of the Notes of all adversely affected
Series or Classes, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders; provided, however, that
no such amendment shall (i) reduce in any manner the amount of or delay the
timing of any distributions to be made to Noteholders or deposits of amounts
to be so distributed or the amount available under any Enhancement Agreement
without the consent of each affected Noteholder, (ii) change the definition of
or the manner of calculating the interest of any Noteholder without the
consent of each affected Noteholder, (iii) reduce the aforesaid percentage
required to consent to any such amendment without the consent of each
Noteholder or (iv) adversely affect the rating of any Series or Class by each
Note Rating Agency without the consent of each affected Noteholder.
Notwithstanding anything to the contrary in the foregoing, any amendment to be
effected pursuant to this paragraph (b) without the consent of each adversely
affected Noteholder shall be subject to the Trustee's receipt of written
confirmation from each applicable Note Rating Agency that such amendment will
not have a Ratings Effect with respect to the adversely affected Notes.
64
Any amendment to be effected pursuant to this paragraph (b) shall be deemed to
adversely affect all outstanding Series and Classes, other than any Series or
Class with respect to which such action shall not, as evidenced by an Opinion
of Counsel for the Seller, addressed and delivered to the Trust and the
Trustee, adversely affect in any material respect the interests of any
Noteholder of such Series or Class. The Owner Trustee may, but shall not be
obligated to, enter into on behalf of the Trust any such amendment which
affects the Owner Trustee's rights, duties or immunities under this Agreement
or otherwise.
(c) Promptly after the execution of any such amendment or consent
(other than an amendment pursuant to paragraph (a)), the Servicer shall
furnish notification of the substance of such amendment to the Trustee, each
Rating Agency, each Agent and each Enhancement Provider. Upon its receipt of
any such notice, the Trustee shall promptly forward a copy of such notice to
each Noteholder in accordance with the Indenture.
(d) It shall not be necessary for the consent of Noteholders under
this Section 13.01 to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Noteholders shall be subject to such
reasonable requirements as the Trustee may prescribe.
(e) Notwithstanding anything in this Section to the contrary, no
amendment may be made to this Agreement which would adversely affect in any
material respect the interests of any Enhancement Provider without the consent
of such Enhancement Provider.
(f) Notwithstanding anything in this Section to the contrary, no
amendment may be made to this Agreement which would adversely affect in any
material respect the interests of any holders of the Seller's Certificates
issued by the Trust pursuant to the Trust Agreement without the consent of the
holders of Seller's Certificates evidencing not less than a majority of the
Percentage Interests (as defined in the Trust Agreement) of the outstanding
Seller's Certificates.
SECTION 13.02 Protection of Right, Title and Interest to Trust.
(a) The Servicer shall cause this Agreement, all amendments hereto
and/or all financing statements and continuation statements and any other
necessary documents covering the Trust's right, title and interest in and to
the Receivables and the Collateral Security to be promptly recorded,
registered and filed, and at all times to be kept recorded, registered and
filed, all in such manner and in such places as may be required by law fully
to preserve and protect the right, title and interest of the Trust hereunder.
The Servicer shall deliver to the Trust and the Trustee file-stamped copies
of, or filing receipts for, any document recorded, registered or filed as
provided above, as soon as available following such recording, registration or
filing. The Seller shall cooperate fully with the Servicer in connection with
the obligations set forth above and will execute any and all documents
reasonably required to fulfill the intent of this Section 13.02(a).
(b) Within 30 days after the Seller or the Servicer makes any change
in its name, identity or corporate structure which would make any financing
statement or continuation
65
statement filed in accordance with Section 13.02(a) seriously misleading
within the meaning of Section 9-506 of the UCC (including as a result of a
Designated Affiliate Transfer), the Seller shall give the Trust, the Trustee
and any Agent notice of any such change and shall file such financing
statements or amendments as may be necessary to continue the perfection of the
Trust's security interest in the Receivables and the proceeds thereof.
(c) The Seller and the Servicer will give the Trust, the Trustee and
any Agent prompt written notice of any relocation of any office from which it
services Receivables or keeps records concerning the Receivables or of its
principal executive office and whether, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new
financing statement and shall file such financing statements or amendments as
may be necessary to perfect or to continue the perfection of the Trust's
security interest in the Receivables and the proceeds thereof. The Seller and
the Servicer will at all times maintain each office from which it services
Receivables and its principal executive officer within the United States of
America.
(d) The Servicer will deliver to the Trust, the Trustee, any Agent
and any Enhancement Provider: (i) upon the execution and delivery of each
amendment of this Agreement, an Opinion of Counsel to the effect specified in
Exhibit G-1; (ii) on each Addition Date on which any Additional Accounts are
to be included as the Accounts pursuant to Section 2.05(a) or (b), an Opinion
of Counsel substantially in the form of Exhibit G-2; and (iii) on or before
March 31 of each year, beginning with March 31, 2005, an Opinion of Counsel
substantially in the form of Exhibit G-2.
SECTION 13.03 No Petition.
(a) Each of DCS and the Trust, by entering into this Agreement,
hereby covenants and agrees that it will not at any time institute against
DCWR any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law.
(b) Each of DCS and DCWR, by entering into this Agreement, hereby
covenants and agrees that it will not at any time institute against the Trust
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law.
(c) Each of DCS, DCWR and the Trust, by entering into this
Agreement, hereby covenants and agrees that it will not at any time institute
against the CARCO Trust any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States Federal or state bankruptcy or similar law.
SECTION 13.04 GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE
66
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 13.05 Notices.
All demands, notices, instructions, directions and communications
(collectively, "Notices") under this Agreement shall be in writing and shall
be deemed to have been duly given if sent by (a) certified or registered mail,
return receipt requested, postage prepaid, (b) national prepaid overnight
delivery service, (c) telecopy, facsimile or other electronic transmission
capable of transmitting or creating a written record or (d) personal delivery,
with receipt acknowledged in writing, to (i) in the case of DCWR, ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Assistant
Secretary; facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇, (ii) in the case of DCS, ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Assistant
Secretary; facsimile no.: (248) (▇▇▇) ▇▇▇-▇▇▇▇, (iii) in the case of the Trust
or the Owner Trustee, Chase Manhattan Bank USA, National Association, c/o
JPMorgan Chase Bank, N.A., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. 3/OPS4, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department; facsimile no.: (302)
984-4903 and (iv) in the case of the Trustee, its Corporate Trust Office; or,
as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
SECTION 13.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall for any reason whatsoever be held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement.
SECTION 13.07 Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Section 8.02, this Agreement may not be assigned by the Servicer.
Each of the Seller and the Servicer hereby acknowledges and consents to any
mortgage, pledge, assignment and grant of a security interest by the Trust to
the Trustee pursuant to the Indenture for the benefit of the Noteholders and
the other Secured Parties of all right, title and interest of the Trust in, to
and under the Receivables and the related Collateral Security and/or the
assignment of any or all of the Trust's rights but none of its obligations
hereunder to the Trustee.
SECTION 13.08 Further Assurances.
The Seller and the Servicer agree to do and perform, from time to
time, any and all acts and to execute any and all further instruments required
or reasonably requested by the Trust, the Owner Trustee or the Trustee more
fully to effect the purposes of this Agreement, including the execution of any
financing statements or continuation statements relating to the Receivables
for filing under the provisions of the UCC of any applicable jurisdiction.
67
SECTION 13.09 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of
the Trust, the Owner Trustee or the Trustee, any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege under
this Agreement preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights, remedies, powers
and privileges provided under this Agreement are cumulative and not exhaustive
of any rights, remedies, powers and privileges provided by law.
SECTION 13.10 Counterparts.
This Agreement may be executed in two or more counterparts (and by
different parties on separate counterparts), each of which shall be an
original, but all of which together shall constitute one and the same
instrument.
SECTION 13.11 Third-Party Beneficiaries.
This Agreement will inure to the benefit of and be binding upon the
parties hereto, the Trustee, the Noteholders and the other Secured Parties and
their respective successors and permitted assigns. Except as otherwise
provided in this Agreement, no other Person will have any right or obligation
hereunder.
SECTION 13.12 Rule 144A Information.
For so long as any of the Notes of any Series or Class are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, each of the Seller and the Servicer agrees to cooperate with
each other and with the Trust to provide to any Noteholder of such Series or
Class and to any prospective purchaser of Notes designated by such Noteholder,
upon the request of such Noteholder or prospective purchaser, any information
required to be provided to such Holder or prospective purchaser to satisfy the
conditions set forth in Rule 144A(d)(4) under the Securities Act.
SECTION 13.13 Merger and Integration.
Except as specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived, or
supplemented except as provided herein.
SECTION 13.14 Headings.
The headings herein are for purposes of reference only and shall not
otherwise affect the meaning or interpretation or any provision hereof.
68
SECTION 13.15 Limitation on Liability of the Owner Trustee and
Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Chase Manhattan Bank USA, National
Association not in its individual capacity but solely in its capacity as Owner
Trustee of the Trust and in no event shall Chase Manhattan Bank USA, National
Association in its individual capacity or, except as expressly provided in the
Trust Agreement, any beneficial owner of the Trust have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Trust hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Trust. For all purposes of this Agreement, in the performance of its
duties or obligations hereunder or in the performance of any duties or
obligations of the Trust hereunder, the Owner Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of Articles V, VI and XI
of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by The Bank of New York, not in its individual
capacity but solely as Trustee and in no event shall The Bank of New York have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Trust hereunder or in any of the certificates,
notices or agreements delivered pursuant hereto, as to all of which recourse
shall be had solely to the Collateral of the Trust.
69
IN WITNESS WHEREOF, the Seller, the Servicer and the Trust have
caused this Sale and Servicing Agreement to be duly executed by their
respective officers as of the day and year first above written.
DAIMLERCHRYSLER WHOLESALE
RECEIVABLES LLC,
Seller
By: /s/ ▇. ▇. ▇▇▇▇▇
--------------------------
Name: ▇. ▇. ▇▇▇▇▇
Title: Assistant Controller,
Chrysler Auto Receivables Company,
a member of DaimlerChrysler
Wholesale Receivables LLC
DAIMLERCHRYSLER SERVICES NORTH
AMERICA LLC,
Servicer
By: /s/ ▇. ▇. ▇▇▇▇▇
--------------------------
Name: ▇. ▇. ▇▇▇▇▇
Title: Assistant Controller
DAIMLERCHRYSLER MASTER OWNER TRUST
By: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner
Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Acknowledged and agreed as of the day
and year first above written:
THE BANK OF NEW YORK,
not in its individual capacity, but
solely as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
2
EXHIBIT A
[INTENTIONALLY OMITTED]
A-1
EXHIBIT B
FORM OF
ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.05
of the Sale and Servicing Agreement)
ASSIGNMENT NO. ___ OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of
_______________, _____ (this "Assignment"), among DaimlerChrysler Wholesale
Receivables LLC, as seller (the "Seller"), DaimlerChrysler Services North
America LLC, as servicer (the "Servicer"), and DaimlerChrysler Master Owner
Trust (the "Trust"), pursuant to the Sale and Servicing Agreement referred to
below.
WITNESSETH:
WHEREAS the Seller, the Servicer and the Trust are parties to a Sale
and Servicing Agreement dated as of December 16, 2004 (as amended or
supplemented, the "Agreement");
WHEREAS, pursuant to the Agreement, the Seller wishes to designate
Additional Accounts to be included as Accounts and to convey the Receivables
and related Collateral Security of such Additional Accounts, whether now
existing or hereafter created, to the Trust which, in turn, shall grant a
security interest in all such conveyed property to the Trustee pursuant to the
Indenture (as each such term is defined in the Agreement); and
WHEREAS the Trust is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, the Seller, the Servicer and the Trust hereby agree
as follows:
1. Defined Terms. All capitalized terms used herein shall have the
meanings ascribed to them in the Agreement unless otherwise defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
designated hereby, _________________, _____.
"Additional Accounts" shall mean, the Additional Accounts, as
defined in the Agreement, that are designated hereby and listed on
Schedule 1 hereto.
"Additional Cut-Off Date" shall mean, with respect to the Additional
Accounts designated hereby, ___________, _____.
2. Designation of Additional Accounts. The Seller hereby delivers
herewith a computer file or microfiche or written list containing a true and
complete list of all such
B-1
Additional Accounts specifying for each such Account, as of the Additional
Cut-Off Date, its account number, the aggregate amount of Receivables
outstanding in such Account and the aggregate amount of Principal Receivables
in such Account. Such file, microfiche or list shall be marked as Schedule 1
to this Assignment and shall, as of the date of this Assignment, be
incorporated into and made a part of this Assignment and shall supplement
Schedule 1 to the Agreement.
3. Conveyance of Receivables. (a) The Seller does hereby sell,
transfer, assign, set over and otherwise convey, without recourse (except as
expressly provided in the Agreement), to the Trust, all of its right, title
and interest in, to and under the Receivables in such Additional Accounts and
all Collateral Security with respect thereto owned by the Seller and existing
at the close of business on the Additional Cut-Off Date and thereafter created
from time to time until the termination of the Trust, all monies due or to
become due and all amounts received with respect thereto and all proceeds
(including Recoveries) thereof. The foregoing sale, transfer, assignment,
set-over and conveyance does not constitute, and is not intended to result in
the creation or an assumption by the Trust, the Owner Trustee, the Trustee,
any Agent, any Noteholder or any Enhancement Provider of any obligation of the
Servicer, the Seller, DCS, DaimlerChrysler or any other Person in connection
with the Accounts, the Receivables or under any agreement or instrument
relating thereto, including any obligation to any Dealers.
(b) In connection with such sale, the Seller agrees to record and
file, at its own expense, a financing statement on form UCC-1 (and
continuation statements when applicable) with respect to the Receivables now
existing and hereafter created for the sale of "tangible chattel paper",
"accounts" or "payment intangibles" (each as defined in Section 9-102 of the
UCC as in effect in the relevant jurisdiction) meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect the sale and assignment of the Receivables and the Collateral
Security to the Trust, and to deliver a file-stamped copy of such financing
statements or other evidence of such filing to the Trustee on or prior to the
Addition Date. The Trustee shall be under no obligation whatsoever to file
such financing statement, or a continuation statement to such financing
statement, or to make any other filing under the UCC in connection with such
sales.
(c) In connection with such sale, the Seller further agrees, at its
own expense, on or prior to the Addition Date, to indicate in its computer
files that the Receivables created in connection with the Additional Accounts
designated hereby have been sold and the Collateral Security assigned to the
Trust pursuant to this Assignment, and pledged by the Trust to the Trustee for
the benefit of the Noteholders and the other Secured Parties pursuant to the
Indenture.
(d) The parties hereto intend that the transfers of Receivables and
related Collateral Security effected by this Assignment be sales.
Nevertheless, if such transfers are deemed to be transfers for security, then
this Assignment also shall be deemed to be and hereby is a security agreement
within the meaning of the UCC, and the conveyance by the Seller provided for
in this Assignment shall also be deemed to be and hereby is a grant by the
Seller to the Trust of a security interest in all of the Seller's right, title
and interest, whether now owned or hereafter acquired, in, to and under such
Receivables and related Collateral Security. For tax purposes, the parties
hereto intend that all transfers of Receivables and related Collateral
Security
B-2
under this Assignment constitute transfers of such Receivables and
related Collateral Security as security for a loan.
4. Acceptance by the Trust. Subject to the satisfaction of the
conditions set forth in Section 6 of this Assignment, the Trust hereby
acknowledges its acceptance of all right, title and interest previously held
by the Seller to the property, now existing and hereafter created, conveyed to
the Trust pursuant to Section 3(a) of this Assignment. The Trust further
acknowledges that, prior to or simultaneously with the execution and delivery
of this Assignment, the Seller delivered to the Trust and the Trustee the
computer file or microfiche or written list relating to the Additional
Accounts described in Section 2 of this Assignment. The Trustee shall be under
no obligation whatsoever to verify the accuracy or completeness of the
information contained in such file or list.
5. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Trust as of the date of this Assignment and as
of the Addition Date that:
(a) Legal, Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect affecting creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity);
(b) Eligible Accounts. Each Additional Account designated
hereby is an Eligible Account;
(c) Selection Procedures. No selection procedures believed by
the Seller to be adverse to the interests of the Trust, the
Noteholders or any Enhancement Providers were utilized in selecting
the Additional Accounts designated hereby;
(d) Insolvency. As of the Notice Date and the Addition Date,
the Seller is not insolvent nor, after giving effect to the
conveyance set forth in Section 3 of this Assignment, will the
Seller have been made insolvent, nor is the Seller aware of any
pending insolvency;
(e) Valid Transfer. This Assignment constitutes a valid sale,
transfer and assignment to the Trust of all right, title and
interest of the Seller in the Receivables and the Collateral
Security and the proceeds thereof and upon the filing of the
financing statements described in Section 3 of this Assignment with
the Secretary of State of the State of Delaware and other applicable
states and, in the case of the Receivables and the Collateral
Security hereafter created and the proceeds thereof, upon the
creation thereof, the Trust shall have a first priority perfected
ownership interest in such property, subject to the rights of the
Purchased Receivables Owners in any Collateral Security in respect
of the Partial Accounts (other than the Vehicles relating to
Principal Receivables arising in the Partial Accounts), except for
Liens permitted under the Receivables Purchase
B-3
Agreement. Except as otherwise provided in the Agreement and except for
Liens permitted under the Receivables Purchase Agreement or the other
Transaction Documents, neither the Seller nor any Person claiming through
or under the Seller has any claim to or interest in the Collateral of the
Trust;
(f) No Conflict. The execution and delivery of this Assignment,
the performance of the transactions contemplated by this Assignment
and the fulfillment of the terms hereof, will not conflict with,
result in any breach of any of the material terms and provisions of,
or constitute (with or without notice or lapse of time or both) a
material default under, any indenture, contract, agreement,
mortgage, deed of trust, or other instrument to which the Seller is
a party or by which it or its properties are bound;
(g) No Violation. The execution and delivery of this Assignment
by the Seller, the performance of the transactions contemplated by
this Assignment and the fulfillment of the terms hereof applicable
to the Seller will not conflict with or violate any material
Requirements of Law applicable to the Seller;
(h) No Proceedings. There are no proceedings or, to the best
knowledge of the Seller, investigations pending or threatened
against the Seller before any Governmental Authority (i) asserting
the invalidity of this Assignment, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this
Assignment, (iii) seeking any determination or ruling that, in the
reasonable judgment of the Seller, would materially and adversely
affect the performance by the Seller of its obligations under this
Assignment, (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of
this Assignment or (v) seeking to affect adversely the income tax
attributes of the Trust under the United States Federal or any State
income, single business or franchise tax systems;
(i) Record of Accounts. As of the Addition Date, Schedule 1 to
this Assignment is an accurate and complete listing in all material
respects of all the Additional Accounts as of the Additional Cut-Off
Date and the information contained therein with respect to the
identity of such Accounts and the Receivables existing thereunder is
true and correct in all material respects as of the Additional
Cut-Off Date;
(j) No Liens. Each Receivable and all Collateral Security
existing on the Addition Date has been conveyed to the Trust free
and clear of any Lien, subject to the rights of the Purchased
Receivables Owners in any Collateral Security in respect of the
Partial Accounts (other than the Vehicles relating to Principal
Receivables arising in the Partial Accounts) and except for Liens
permitted under the Receivables Purchase Agreement;
(k) All Consents Required. With respect to each Receivable and
all Collateral Security existing on the Addition Date, all consents,
licenses, approvals or authorizations of or registrations or
declarations with any Governmental Authority required to be
obtained, effected or given by the Seller in connection with the
conveyance of such Receivable or Collateral Security to the Trust,
the execution and delivery of this
B-4
Assignment and the performance of the transactions contemplated hereby
have been duly obtained, effected or given and are in full force and
effect; and
(l) Eligible Receivables. On the Additional Cut-Off Date each
Receivable conveyed to the Trust as of such date is an Eligible
Receivable or, if such Receivable is not an Eligible Receivable,
such Receivable is conveyed to the Trust in accordance with Section
2.09 of the Agreement.
6. Conditions Precedent. The acceptance of the Trustee set forth in
Section 5 of this Assignment is subject to the satisfaction, on or prior to
the Addition Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by the Seller in Section 5 of this Assignment
shall be true and correct as of the date of this Assignment and as
of the Addition Date;
(b) Agreement. Each of the conditions set forth in Section
2.05(d) of the Agreement applicable to the designation of the
Additional Accounts to be designated hereby shall have been
satisfied; and
(c) Officers' Certificate. The Seller shall have delivered to
the Trust and the Trustee an Officers' Certificate, dated the date
of this Assignment, in which an officer of the Seller shall state
that the representations and warranties of the Seller under Section
5 hereof are true and correct. The Trustee may conclusively rely on
such Officers' Certificate, shall have no duty to make inquiries
with regard to the matters set forth therein and shall incur no
liability in so relying.
7. Ratification of Agreement. As supplemented by this Assignment,
the Agreement is in all respects ratified and confirmed and the Agreement as
so supplemented by this Assignment shall be read, taken and construed as one
and the same instrument.
8. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties in separate counterparts), each of
which shall be an original but all of which together shall constitute one and
the same instrument.
9. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
10. Limitation on Liability of the Owner Trustee and Trustee. (a)
Notwithstanding anything contained herein to the contrary, this Assignment has
been countersigned by Chase Manhattan Bank USA, National Association not in
its individual capacity but solely in its capacity as Owner Trustee of the
Trust and in no event shall Chase Manhattan Bank USA, National Association in
its individual capacity or, except as expressly provided in the Trust
Agreement, any beneficial owner of the Trust have any liability for the
B-5
representations, warranties, covenants, agreements or other obligations of the
Trust hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Trust. For all purposes of this Assignment, in the performance of its
duties or obligations hereunder or in the performance of any duties or
obligations of the Trust hereunder, the Owner Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of Articles V, VI and XI
of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Assignment has been accepted by The Bank of New York, not in its individual
capacity but solely as Trustee and in no event shall The Bank of New York have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Trust hereunder or in any of the certificates,
notices or agreements delivered pursuant hereto, as to all of which recourse
shall be had solely to the Collateral of the Trust.
B-6
IN WITNESS WHEREOF, the Seller, the Servicer and the Trust have
caused this Assignment to be duly executed and delivered by their respective
duly authorized officers as of the day and the year first above written.
DAIMLERCHRYSLER WHOLESALE
RECEIVABLES LLC,
as Seller
By:
------------------------------------
Name:
Title:
DAIMLERCHRYSLER SERVICES
NORTH AMERICA LLC,
as Servicer
By:
------------------------------------
Name:
Title:
DAIMLERCHRYSLER MASTER
OWNER TRUST
By: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner
Trustee
By:
------------------------------------
Name:
Title:
Acknowledged and agreed as of the day
and year first above written:
THE BANK OF NEW YORK,
not in its individual capacity, but
solely as Trustee
By:
------------------------------------
Name:
Title:
B-7
EXHIBIT C
FORM OF
ANNUAL SERVICER'S CERTIFICATE
(As required to be delivered
pursuant to Section 3.05 of the Sale and Servicing Agreement)
DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC
----------------------------------------------
DAIMLERCHRYSLER MASTER OWNER TRUST
----------------------------------------------
The undersigned, duly authorized representatives of DaimlerChrysler
Services North America LLC ("DCS"), pursuant to the Sale and Servicing
Agreement, dated as of December 16, 2004 (as amended and supplemented, the
"Agreement"), among DaimlerChrysler Wholesale Receivables LLC, as seller (the
"Seller"), DCS, as servicer (the "Servicer"), and DaimlerChrysler Master Owner
Trust (the "Trust"), do hereby certify that:
1. DCS is, as of the date hereof, the Servicer under the Agreement.
2. The undersigned are Servicing Officers and are duly authorized
pursuant to the Agreement to execute and deliver this Certificate to the
Trustee, the Trust, any Agent and any Enhancement Providers.
3. A review of the activities of the Servicer during the calendar
year ended December 31, _______, and of its performance under the
Agreement was conducted under our supervision.
4. Based on such review, the Servicer has, to the best of our
knowledge, performed in all material respects all of its obligations
under the Agreement throughout such year and no default in the
performance of such obligations has occurred or is continuing except as
set forth in paragraph 5 below.
5. The following is a description of each default in the performance
of the Servicer's obligations under the provisions of the Agreement known
to us to have been made by the Servicer during the year ended December
31, _______, which sets forth in detail the (a) nature of each such
default, (b) the action taken by the Servicer, if any, to remedy each
such default and (c) the current status of each such default: [If
applicable, insert "None".]
Capitalized terms used but not defined herein are used as defined in
the Agreement.
C-1
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Certificate this _____ day of ________________, _______.
----------------------------------------
Name:
Title:
----------------------------------------
Name:
Title:
▇-▇
▇▇▇▇▇▇▇ ▇
[▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇]
▇-▇
EXHIBIT E
[INTENTIONALLY OMITTED]
E-1
EXHIBIT F
[INTENTIONALLY OMITTED]
F-1
EXHIBIT G-1
FORM OF
OPINION OF COUNSEL
Provisions to be Included in Opinion of Counsel to be
Delivered Pursuant to Section 13.02(d)(i)
(i) The Amendment to the Sale and Servicing Agreement, attached
hereto as Schedule 1 (the "Amendment"), has been duly authorized, executed and
delivered by the Seller and constitutes the legal, valid and binding agreement
of the Seller, enforceable in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally from time to time in effect. The enforceability of the Seller's
obligations is also subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
(ii) The Amendment has been entered into in accordance with the
terms and provisions of Section 13.01 of the Sale and Servicing Agreement.
(iii) The Amendment will not adversely affect in any material
respect the interests of the Noteholders. [Include this clause (iii) only in
the case of amendments effected pursuant to Section 13.01(a) of the Sale and
Servicing Agreement.]
G-1-1
EXHIBIT G-2
FORM OF
OPINION OF COUNSEL
Provisions to be Included in Opinion of Counsel to be
Delivered Pursuant to Section 13.02(d)(ii) and (iii)*
The opinions set forth below may be subject to all the
qualifications, assumptions, limitations and exceptions taken or made in the
opinion of counsel to DaimlerChrysler Wholesale Receivables LLC (the "Seller")
delivered on any Closing Date. Capitalized terms used but not defined herein
are used as defined in the Sale and Servicing Agreement, dated as of December
16, 2004 (as amended and supplemented, the "Sale and Servicing Agreement"),
among the Seller, as seller, DaimlerChrysler Services North America LLC, as
servicer (the "Servicer"), and DaimlerChrysler Master Owner Trust (the
"Trust").
[(a) The Assignment has been duly authorized, executed and delivered
by the Seller, and constitutes the valid and legally binding obligation of the
Seller, enforceable against the Seller in accordance with its terms.]
(b) Assuming the Receivables [in the Additional Accounts] are
created under, and are evidenced solely by, Floorplan Financing Agreements,
such Receivables will constitute "tangible chattel paper", "accounts" or
"payment intangibles" (each as defined under Section 9-102 of the UCC as in
effect in the relevant jurisdiction). We note that DaimlerChrysler Services
North America LLC has given us an Officers' Certificate to the effect that the
Receivables are created under Floorplan Financing Agreements.
(c) If the transfer of the Receivables [in the Additional Accounts]
and all [of the related] Collateral Security to the Trust pursuant to the Sale
and Servicing Agreement constitutes a true sale of such Receivables and
Collateral Security to the Trust:
(i) with respect to such Receivables and Collateral Security in
existence on the date hereof, such sale transfers all of the right,
title and interest of the Seller in and to such Receivables and
Collateral Security to the Trust, free and clear of any liens now
existing or hereafter created, but subject to the rights of the
Seller as holder of the DCMOT Certificate;
(ii) with respect to such Receivables and Collateral Security
which come into existence after the date hereof, upon the creation
of such Receivables and Collateral Security and the subsequent
transfer of such Receivables and Collateral Security to the Trust in
accordance with the Sale and Servicing
------------------
* Include bracketed language only in the case of additions of Accounts
effected pursuant to Section 2.05 of the Pooling and Servicing Agreement.
G-2-1
Agreement and receipt by the Seller of the consideration therefor
required pursuant to the Sale and Servicing Agreement, such sale will
transfer all of the right, title and interest of the Seller in and to
such Receivables and Collateral Security to the Trust free and clear of
any liens, but subject to the rights of the Seller as holder of the DCMOT
Certificate;
and, in either case, no further action will thereafter be required under
Michigan, Delaware or federal law to protect the Trust's ownership interest in
the Receivables and the Collateral Security against creditors of, or
subsequent purchasers from, the Seller.
(d) If the transfer of the Receivables and Collateral Security to
the Trust pursuant to the Sale and Servicing Agreement does not constitute a
true sale of the Receivables and the Collateral Security to the Trust, then
the Sale and Servicing Agreement as amended and supplemented by the Assignment
creates a valid security interest in favor of the Trust in the Seller's right,
title and interest in and to the Receivables and the Collateral Security and
the proceeds thereof securing the obligations of the Seller thereunder.
Financing statements on form UCC-1 having been filed in the offices of the
Secretaries of State of the States of Michigan and [other applicable states]
and accordingly, such security interest constitutes a perfected security
interest in such Receivables and Collateral Security and the proceeds thereof
subject to no prior liens, enforceable as such against creditors of, and
subsequent purchasers from, the Seller, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws relating to
or affecting creditors' rights generally and to general equity principles.
G-2-2
EXHIBIT H
FORM OF
REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
(As required by Section 2.07
of the Sale and Servicing Agreement)
REASSIGNMENT NO. ___ OF RECEIVABLES IN REMOVED ACCOUNTS dated as of
_______________, _____ (this "Reassignment"), by and between DaimlerChrysler
Wholesale Receivables LLC, , a Delaware limited liability company (the
"Seller"), and DaimlerChrysler Master Owner Trust, Delaware statutory trust
(the "Trust"), pursuant to the Sale and Servicing Agreement referred to below.
WITNESSETH:
WHEREAS the Seller, DaimlerChrysler Services North America LLC, as
servicer (the "Servicer"), and the Trust are parties to a Sale and Servicing
Agreement dated as of December 16, 2004 (as amended or supplemented, the
"Agreement");
WHEREAS, pursuant to the Agreement, the Seller wishes to remove all
Receivables from certain Removed Accounts (the "Removed Accounts") and the
Collateral Security thereof and to cause the Trust to reconvey the Receivables
of such Removed Accounts and such Collateral Security, whether now existing or
hereafter created, from the Trust to the Seller (as each such term is defined
in the Agreement); and
WHEREAS the Trust is willing to accept such designation and to
reconvey the Receivables in the Removed Accounts and such Collateral Security
subject to the terms and conditions hereof;
NOW, THEREFORE, the Seller and the Trust hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein
shall have such defined meanings when used herein, unless otherwise defined
herein.
"Removal Commencement Date" shall mean, with respect to the Removal
Accounts designated hereby, ---------------, -----.
"Removal Date" shall mean, with respect to the Removed Accounts
designated hereby, _________________, ______.
"Removed Accounts" shall mean, the Removed Accounts, as defined in
the Agreement, that are designated hereby and listed on Schedule 1
hereto.
2. Designation of Removed Accounts. The Seller shall deliver to the
Trust and the Trustee, any Enhancement Providers and the Rating Agencies a
computer file or
microfiche or written list containing a true and complete list of the Removed
Accounts, specifying for each such Account, as of the Removal Commencement
Date, its account number, the aggregate amount of Receivables outstanding in
such Accounts and the Designated Balance. Such list shall be marked as
Schedule 1 to this Reassignment and shall be incorporated into and made a part
of this Reassignment as of the Removal Date and shall amend Schedule 1 to the
Agreement.
3. Conveyance of Receivables and Accounts. (a) The Trust does hereby
transfer, assign, set over and otherwise convey to the Seller, without
recourse, representation or warranty on and after the Removal Date, all right,
title and interest of the Trust in, to and under all Receivables now existing
at the close of business on the Removal Date and thereafter created from time
to time until the termination of the Trust in Removed Accounts designated
hereby, all Collateral Security thereof, all monies due or to become due and
all amounts received with respect thereto (including all Non-Principal
Receivables) and all proceeds (including Recoveries) thereof.
(b) If requested by the Seller, in connection with such transfer,
the Trust agrees to execute and deliver, or cause to be executed and
delivered, to the Seller on or prior to the date of this Reassignment, a
termination statement with respect to the Receivables existing at the close of
business on the Removal Date and thereafter created from time to time and
Collateral Security thereof in the Removed Accounts reassigned hereby (which
may be a single termination statement with respect to all such Receivables and
Collateral Security) evidencing the release by the Trust or by the Trustee, as
applicable, of its lien on the Receivables in the Removed Accounts and the
Collateral Security, and meeting the requirements of applicable state law, in
such manner and such jurisdictions as are necessary to remove such lien.
4. Acceptance by the Trust. The Trust hereby acknowledges that,
prior to or simultaneously with the execution and delivery of this
Reassignment, the Seller delivered to the Trust and the Trustee the computer
file or such microfiche or written list described in Section 2 of this
Reassignment.
5. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Trust as of the date of this Reassignment and
as of the Removal Date:
(a) Legal, Valid and Binding Obligation. This Reassignment
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors' rights generally and
except as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity);
(b) No Early Redemption Event. The removal of the Accounts hereby
removed shall not, in the reasonable belief of the Seller, cause an Early
Redemption Event to occur or cause the Pool Balance to be less than the
Required Participation Amount;
H-2
(c) Selection Procedures. No selection procedures believed by the
Seller to be adverse to the interests of the Trust, the Noteholders or
any Enhancement Providers were utilized in selecting the Designated
Accounts [and the selection procedures were applied so as to randomly
select the Designated Account from the entire population of Accounts];
and
(d) True and Complete List. The list of Removed Accounts described
in Section 2 of this Reassignment is, as of the Removal Commencement
Date, true and complete in all material respects;
provided, however, that in the event that the removal on such Removal Date
relates solely to Ineligible Accounts, the Seller shall be deemed to make only
the representations and warranties contained in paragraph 5(a) above.
6. Conditions Precedent. In addition to the conditions precedent set
forth in Section 2.07 of the Agreement, the obligation of the Trust to execute
and deliver this Reassignment is subject to the satisfaction, on or prior to
the Removal Commencement Date, of the following additional condition
precedent:
Officers' Certificate. The Seller shall have delivered to the
Trust and the Trustee an Officers' Certificate certifying that (i) as of
the Removal Commencement Date, all requirements set forth in Section 2.07
of the Agreement for designating Removed Accounts and reconveying the
Receivables of such Removed Accounts and the Collateral Security, whether
existing at the close of business on the Removal Date or thereafter
created from time to time until the termination of the Trust, have been
satisfied, and (ii) each of the representations and warranties made by
the Seller in Section 5 hereof is true and correct as of the date of this
Reassignment and as of the Removal Commencement Date. The Trustee may
conclusively rely on such Officers' Certificate, shall have no duty to
make inquiries with regard to the matters set forth therein and shall
incur no liability in so relying.
7. Ratification of Agreement. As supplemented by this Reassignment,
the Agreement is in all respects ratified and confirmed and the Agreement as
so supplemented by this Reassignment shall be read, taken and construed as one
and the same instrument.
8. Counterparts. This Reassignment may be executed in two or
more counterparts, and by different parties on separate counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
10. Limitation on Liability of the Owner Trustee and Trustee. (a)
Notwithstanding anything contained herein to the contrary, this Reassignment
has been
H-3
countersigned by Chase Manhattan Bank USA, National Association not in its
individual capacity but solely in its capacity as Owner Trustee of the Trust
and in no event shall Chase Manhattan Bank USA, National Association in its
individual capacity or, except as expressly provided in the Trust Agreement,
any beneficial owner of the Trust have any liability for the representations,
warranties, covenants, agreements or other obligations of the Trust hereunder
or in any of the certificates, notices or agreements delivered pursuant
hereto, as to all of which recourse shall be had solely to the assets of the
Trust. For all purposes of this Reassignment, in the performance of its duties
or obligations hereunder or in the performance of any duties or obligations of
the Trust hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Articles V, VI and XI of the
Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Reassignment has been accepted by The Bank of New York, not in its individual
capacity but solely as Trustee and in no event shall The Bank of New York have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Trust hereunder or in any of the certificates,
notices or agreements delivered pursuant hereto, as to all of which recourse
shall be had solely to the Collateral of the Trust.
H-4
IN WITNESS WHEREOF, the undersigned have caused this Reassignment to
be duly executed and delivered by their respective duly authorized officers on
the day and year first above written.
DAIMLERCHRYSLER WHOLESALE
RECEIVABLES LLC,
Seller
By:
-----------------------------------
Name:
Title:
DAIMLERCHRYSLER MASTER
OWNER TRUST
By: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner
Trustee
By:
-----------------------------------
Name:
Title:
Acknowledged and agreed as of the day
and year first above written:
THE BANK OF NEW YORK,
not in its individual capacity, but
solely as Trustee
By:
----------------------------------
Name:
Title:
H-5
EXHIBIT I
[INTENTIONALLY OMITTED]
I-1
EXHIBIT J
FORM OF
SUBORDINATED NOTE
New York, New York
December 16, 2004
FOR VALUE RECEIVED, the undersigned, DaimlerChrysler Wholesale
Receivables LLC, a Delaware limited liability company (the "Company"), hereby
unconditionally promises to pay to the order of DaimlerChrysler Services North
America LLC, a Michigan limited liability company ("DCS"), in lawful money of
the United States of America in immediately available funds the principal
amount outstanding on December 16, 2024 (the "Maturity Date"), in respect of
monies borrowed by the Company from time to time to fund the purchase of
Receivables by the Company from DCS pursuant to the Second Amended and
Restated Receivables Purchase Agreement dated as of December 16, 2004 (as
amended or supplemented from time to time, the "Receivables Purchase
Agreement"), between the Company and DCS. The Company may, at its option,
prepay this Subordinated Note in whole or in part at any time and from time to
time from and after the date hereof; provided, however, that in no event shall
the holder hereof have any right to demand any payment of principal hereunder
prior to the Maturity Date.
Capitalized terms used herein and not otherwise defined have the
meanings assigned to them in the Sale and Servicing Agreement dated as of
December 16, 2004 (as amended or supplemented from time to time, the "Sale and
Servicing Agreement"), among the Company, as seller, DCS, as servicer, and
DaimlerChrysler Master Owner Trust (the "Issuer").
The undersigned further agrees to pay interest in like money on the
unpaid principal amount hereof from time to time from the date hereof at a
rate per annum equal to [___________________________]. Interest shall be
payable in arrears on each Payment Date commencing on the first such date to
occur after the date hereof and upon final payment of the unpaid principal
amount hereof.
This Subordinated Note is subordinate and junior in right and time
of payment to all "Senior Debt" of the Company, which is any Indebtedness of
the Company and all renewals, extensions, refinancings and refundings thereof,
except any such Indebtedness that expressly provides that it is not senior or
superior in right of payment hereto. "Indebtedness" is any indebtedness,
whether or not contingent, in respect of borrowed money or evidenced by bonds,
notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereto) whether any such indebtedness
would appear as a liability upon a balance sheet of the Company prepared on a
consolidated basis in accordance with generally accepted accounting
principles.
All scheduled payments of principal and interest in respect of
Senior Debt must be paid before this Subordinated Note shall be payable, and
all scheduled payments of principal and interest on this Subordinated Note
shall be payable only to the extent that the Company, after
J-1
paying all of its accounts payable and other current expenses, has the funds
to make such payments. The Company agrees, and the holder hereof by accepting
this Subordinated Note agrees, to the subordination provisions herein
contained. Notwithstanding any provisions herein to the contrary, the
obligations of the Company hereunder shall not be recourse to the Issuer or
any assets thereof pledged under the Amended and Restated Indenture dated as
of December 16, 2004, between the Issuer and The Bank of New York, as
indenture trustee.
The holder of this Subordinated Note, by its acceptance hereof,
hereby covenants and agrees that it will not at any time institute against the
Company or the Issuer any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings, or other proceedings under any United States
federal or state bankruptcy or similar law.
IN WITNESS WHEREOF, the Company has caused this Subordinated Note to
be duly executed as of the day and year first above written.
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC
By:
-----------------------------------
Name:
Title:
J-2
EXHIBIT K
FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") dated as of
_______________, _____ (the "Assumption Date"), by and among DAIMLERCHRYSLER
WHOLESALE RECEIVABLES LLC, a Delaware limited liability company headquartered
in Farmington Hills, Michigan ("DCWR"), [DESIGNATED AFFILIATE], a
[___________] [corporation] headquartered in [________________] (the
"Designated Affiliate"), and DAIMLERCHRYSLER MASTER OWNER TRUST, a Delaware
statutory trust (the "Trust"), pursuant to the Sale and Servicing Agreement
referred to below.
WHEREAS DCWR, the Trust and DaimlerChrysler Services North America
LLC, as servicer (the "Servicer"), are parties to the Sale and Servicing
Agreement dated as of December 16, 2004 (as amended or supplemented, the "Sale
and Servicing Agreement");
WHEREAS DCWR wishes to sell, transfer, assign and otherwise convey
all, but not less than all, of its right, title and interest in the Collateral
of the Trust, the Seller's Interest, the DCMOT Certificate, the Sale and
Servicing Agreement, the Related Documents and any other agreement, document
or instrument relating to the Sale and Servicing Agreement or the transactions
contemplated thereby (the "Trust Documents") and its obligations thereunder to
the Designated Affiliate pursuant to a Designated Affiliate Transfer as set
forth in Section 7.04 of the Sale and Servicing Agreement;
WHEREAS the Designated Affiliate agrees to assume the performance of
every covenant and obligation of DCWR under the Sale and Servicing Agreement,
the Related Documents and the Trust Documents; and
WHEREAS the Trust is willing to accept an assignment to and
assumption by the Designated Affiliate, subject to the terms and conditions
hereof and of the Sale and Servicing Agreement;
NOW, THEREFORE, DCWR, the Designated Affiliate and the Trust hereby
agree as follows:
1. Defined Terms. All terms defined in the Sale and Servicing
Agreement and used herein shall have such defined meanings when used herein,
unless otherwise defined herein.
2. Conveyance. By execution of this Agreement, DCWR does hereby
sell, transfer, assign and otherwise convey all, but not less than all, of its
right, title and interest in the Collateral of the Trust, the Seller's
Interest, the DCMOT Certificate, the Sale and Servicing Agreement, the Related
Documents and the Trust Documents, and its obligations, as Seller thereunder,
to the Designated Affiliate.
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3. Records. The Designated Affiliate agrees, at its own expense, on
or prior to the Assumption Date, to indicate in its computer files and to
cause DCWR and DCS to indicate in their computer files that the Receivables
created in connection with the Accounts (other than Removed Accounts) have
been sold, and the Collateral Security assigned, to the Designated Affiliate
in accordance with the Receivables Purchase Agreement, and sold to the Trust
pursuant to the Sale and Servicing Agreement, and pledged by the Trust to the
Trustee for the benefit of the Noteholders and the other Secured Parties
pursuant to the Indenture.
4. Assumption of Duties. (a) DCWR hereby agrees that prior to the
date of this Agreement it shall be bound by all the provisions and
requirements of and assume all of the responsibilities under the Sale and
Servicing Agreement, the Related Documents and the Trust Documents, applicable
to DCWR. The Designated Affiliate hereby agrees that on and after the date of
this Agreement it shall be bound by all the provisions and requirements of and
assume the performance of every covenant and obligation and all of the
responsibilities and duties under the Sale and Servicing Agreement, the
Related Documents and the Trust Documents applicable to DCWR.
(b) In connection with such assumption, the Designated Affiliate
agrees to record and file, at its own expense, a financing statement on form
UCC-1 (and continuation statements when applicable) with respect to (i) the
Receivables now existing and created on or after the Assumption Date in the
Accounts (which may be a single financing statement with respect to all such
Receivables) for the sale of "tangible chattel paper", "accounts" or "payment
intangibles" (each as defined in Section 9-102 of the UCC as in effect in the
relevant jurisdiction) and (ii) all other Collateral now existing and created
on or after the Assumption Date, meeting the requirements of applicable state
law in such manner and in such jurisdictions as are necessary to perfect the
sale, transfer and assignment of such Receivables and other Collateral to the
Trust, and to deliver a file-stamped copy of such financing statements or
other evidence of such filing (which may, for purposes of this Section 4,
consist of telephone confirmation of such filing, confirmed within 24 hours in
writing) to the Trustee on or prior to the Assumption Date.
5. Acceptance by the Trust. The Trust hereby acknowledges its
acceptance of such assignment and assumption. The foregoing assignment and
assumption does not constitute, and is not intended to result in the creation
or an assumption by the Trust, the Owner Trustee, the Trustee, any Agent, any
Noteholder or any Enhancement Provider of any obligation of the Servicer, DCS,
the Seller, DaimlerChrysler, the Designated Affiliate or any other Person in
connection with the Accounts, the Receivables or under any agreement or
instrument relating thereto, including any obligation to any Dealers.
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6. Representations and Warranties of the Designated Affiliate and
DCWR. In addition to the representations and warranties deemed to have been
made by the Designated Affiliate in respect of the Accounts and Receivables
thereunder pursuant to Section 7.04(c) of the Sale and Servicing Agreement,
the Designated Affiliate and DCWR hereby also represent and warrant to the
Trust as of the Assumption Date:
(a) Legal, Valid and Binding Obligation. This Agreement constitutes
a legal, valid and binding obligation of the Designated Affiliate and
DCWR, enforceable against the Designated Affiliate and DCWR in accordance
with its terms;
(b) Insolvency. Neither the Designated Affiliate nor DCWR is
insolvent; and, after giving effect to the transactions contemplated by
this Agreement, neither the Designated Affiliate nor DCWR will be
insolvent; and
(c) Interests in Collateral. The interests of the Trust and of the
Trustee in the Receivables and other Collateral continues to remain in
full force and effect and have not been interrupted or impaired by the
signing of this Agreement and such interests remain prior to all others
except as set forth in the Sale and Servicing Agreement.
7. Conditions Precedent. The acceptance of the Trust set forth in
Section 5 is subject to the satisfaction, on or prior to the Assumption Date,
of the conditions precedent referred to in Section 7.04(b) of the Sale and
Servicing Agreement and of the following additional conditions precedent:
(a) DCWR shall have transferred the DCMOT Certificate to the
Designated Affiliate as set forth in Section 7.04(c) of the Sale and
Servicing Agreement.
(b) The payment of any other consideration has been completed as
certified by the Designated Affiliate to the Trust.
(c) The Designated Affiliate shall have delivered to the Trust and
the Trustee an Officers' Certificate, dated the date of this Agreement,
in which an officer of the Designated Affiliate shall state that, to the
best of his knowledge after reasonable investigation, the representations
and warranties of the Designated Affiliate in its capacities as Seller
under Section 2.03 and Section 2.04 of the Sale and Servicing Agreement
are true and correct.
(d) DCWR shall have delivered to the Trust and the Trustee an
Opinion of Counsel dated the Assumption Date in the form attached hereto
as Exhibit A.
8. Sale and Servicing Agreement. The Designated Affiliate, DCWR and
the Trust hereby agree that from and after the Assumption Date, the terms
"Seller" and "DCWR" (other than "DCMOT Certificate") in the Sale and Servicing
Agreement, the Related Documents and the Trust Documents shall refer to the
Designated Affiliate. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Sale and
Servicing Agreement, the Related Documents and the Trust Documents applicable
to DCWR shall remain unamended and shall continue to be, and shall remain, in
full force and effect in accordance with their terms and, except as expressly
provided herein, the execution and delivery
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of this Agreement by the Trustee shall not constitute or be deemed to
constitute a waiver of compliance with or a consent to non-compliance with any
term or provision of the Sale and Servicing Agreement, the Related Documents
and the Trust Documents.
9. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
10. Counterparts. This Agreement may be executed in two or more
counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute but one
and the same instrument.
11. Limitation on Liability of the Owner Trustee and Trustee. (a)
Notwithstanding anything contained herein to the contrary, this Agreement has
been countersigned by Chase Manhattan Bank USA, National Association not in
its individual capacity but solely in its capacity as Owner Trustee of the
Trust and in no event shall Chase Manhattan Bank USA, National Association in
its individual capacity or, except as expressly provided in the Trust
Agreement, any beneficial owner of the Trust have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Trust hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Trust. For all purposes of this Agreement, in the performance of its
duties or obligations hereunder or in the performance of any duties or
obligations of the Trust hereunder, the Owner Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of Articles V, VI and XI
of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by The Bank of New York, not in its individual
capacity but solely as Trustee and in no event shall The Bank of New York have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Trust hereunder or in any of the certificates,
notices or agreements delivered pursuant hereto, as to all of which recourse
shall be had solely to the Collateral of the Trust.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed and delivered by their respective duly authorized officers on
the day and year first above written.
DAIMLERCHRYSLER WHOLESALE
RECEIVABLES LLC
By:
------------------------------------
Name:
Title:
[DESIGNATED AFFILIATE]
By:
------------------------------------
Name:
Title:
DAIMLERCHRYSLER MASTER
OWNER TRUST
By: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner
Trustee
By:
------------------------------------
Name:
Title:
Acknowledged and agreed as of the day
and year first above written:
THE BANK OF NEW YORK,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Name:
Title:
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Exhibit A to AAA
Form of Opinion of Counsel
DCWR has been duly formed and is validly existing as a limited
liability company in good standing under the laws of the State of Delaware,
with full power and authority (limited liability company and other) to own its
properties and conduct its business, as presently conducted by it, and to
enter into and perform its obligations under the Assignment and Assumption
Agreement.
The Designated Affiliate has been duly formed and is validly
existing as a [_______] in good standing under the laws of the State of
[__________], with full power and authority ([_______] and other) to own its
properties and conduct its business, as presently conducted by it and as
proposed to be conducted by it, and to enter into and perform its obligations
under the Assignment and Assumption Agreement and to assume and to perform the
obligations of DCWR under the Sale and Servicing Agreement, the Related
Documents and the Trust Documents.
The Designated Affiliate is duly qualified to do business and is in
good standing, and has obtained all necessary licenses and approvals, in each
jurisdiction in which the failure to qualify or to obtain such licenses or
approvals would render any Receivable unenforceable by the Designated
Affiliate, the Trust or the Trustee on behalf of any Noteholder or other
Secured Party.
The Assignment and Assumption Agreement has been duly authorized,
executed and delivered by DCWR, and is a legal, valid and binding obligation
of DCWR enforceable against DCWR in accordance with its terms, except (y) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in effect
relating to creditors' rights, and (z) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
The Assignment and Assumption Agreement has been duly authorized,
executed and delivered by the Designated Affiliate, and the Assignment and
Assumption Agreement, the Sale and Servicing Agreement, the Related Documents
and the Trust Documents are the legal, valid and binding obligations of the
Designated Affiliate. The Assignment and Assumption Agreement is enforceable
against the Designated Affiliate in accordance with its terms, except (y) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in effect
relating to creditors' rights, and (z) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
Neither the sale, transfer, assignment and conveyance by DCWR of
DCWR's right, title and interest in the Collateral, the Seller's Interest, the
DCMOT Certificate, the Sale and Servicing Agreement, the Related Documents and
the Trust Documents or its obligations as
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Seller thereunder to the Designated Affiliate, nor the consummation of any
other transaction contemplated in the Assignment and Assumption Agreement, nor
the execution and delivery of the Assignment and Assumption Agreement by DCWR,
will conflict with, or result in a breach, violation or acceleration of, or
constitute a default under, any term or provision of the limited liability
company agreement of DCWR or DCS, or of any indenture or other agreement or
instrument to which DCWR or DCS is a party or by which any of them is bound,
or result in a violation of, or contravene the terms of any statute, order or
regulation applicable to DCWR or DCS of any court, regulatory body,
administrative agency or governmental body having jurisdiction over any of
them.
Neither the execution and delivery of the Assignment and Assumption
Agreement by the Designated Affiliate, nor the assumption of the obligations
of DCWR as Seller under the Amended and Restated Pooling and Servicing
Agreement, the Related Documents or the Trust Documents, nor the consummation
of any other transaction contemplated in the Assignment and Assumption
Agreement, nor the fulfillment of the terms of the Amended and Restated
Pooling and Servicing Agreement, the Related Documents or the Trust Documents
by the Designated Affiliate, will conflict with, or result in a breach,
violation or acceleration of, or constitute a default under, any term or
provision of the [constituent documents] of the Designated Affiliate, or of
any indenture or other agreement or instrument to which the Designated
Affiliate is a party or by which it is bound, or result in a violation of, or
contravene the terms of any statute, order or regulation applicable to the
Designated Affiliate of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it.
There are no actions, proceedings or investigations pending or, to
the best of such counsel's knowledge after due inquiry, threatened before any
court, administrative agency, or other tribunal (1) asserting the invalidity
of the Assignment and Assumption Agreement, (2) seeking to prevent the
consummation of any of the transactions contemplated by the Assignment and
Assumption Agreement or the execution and delivery thereof, or (3) that might
materially and adversely affect the performance by DCWR or the Designated
Affiliate of its obligations under, or the validity or enforceability of, the
Assignment and Assumption Agreement, the Sale and Servicing Agreement, the
Related Documents or the Trust Documents.
No consent, approval, authorization or order of, or notice to or
filing with, any court or governmental agency or body is required for the
consummation of the transactions contemplated in the Assignment and Assumption
Agreement, except the filing of amendments to UCC financing statements to
reflect the change of the "Seller" described in such financing statements to
the Designated Affiliate.
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SCHEDULE 1
LIST OF ACCOUNTS
[On File with the Servicer]
[Deemed to be incorporated]
Sch-1