Exhibit 99
EXECUTION COPY
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DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC,
Buyer
and
DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC,
Seller
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
Dated as of November 14, 2003
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms..................................................................................... 1
SECTION 1.02. Other Definitional Provisions............................................................................. 2
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.01. Conveyance of Receivables................................................................................. 2
SECTION 2.02. Representations and Warranties of the Seller Relating to the Seller and the Agreement..................... 3
SECTION 2.03. Representations and Warranties of the Seller Relating to the Receivables.................................. 6
SECTION 2.04. Addition of Accounts...................................................................................... 7
SECTION 2.05. Covenants of the Seller................................................................................... 8
SECTION 2.06. Removal of Eligible Accounts.............................................................................. 9
SECTION 2.07. Removal of Ineligible Accounts............................................................................11
SECTION 2.08. Sale of Ineligible Receivables............................................................................12
SECTION 2.09. Common Collateral Security................................................................................12
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01. Acceptance of Appointment and Other Matters Relating to the Servicer......................................13
SECTION 3.02. Servicing Compensation....................................................................................13
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
SECTION 4.01. Allocations and Applications of Collections and Other Funds...............................................13
ARTICLE V
OTHER MATTERS RELATING TO THE SELLER
SECTION 5.01. Merger or Consolidation of, or Assumption, of the Obligations of the Seller...............................14
SECTION 5.02. Seller Indemnification of the Buyer.......................................................................14
ARTICLE VI
TERMINATION....................................................14
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ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01. Amendment.................................................................................................15
SECTION 7.02. Protection of Right, Title and Interest to Receivables....................................................16
SECTION 7.03. Limited Recourse..........................................................................................17
SECTION 7.04. No Petition...............................................................................................17
SECTION 7.05. GOVERNING LAW.............................................................................................17
SECTION 7.06. Notices...................................................................................................18
SECTION 7.07. Severability of Provisions................................................................................18
SECTION 7.08. Assignment................................................................................................18
SECTION 7.09. Further Assurances........................................................................................18
SECTION 7.10. No Waiver; Cumulative Remedies............................................................................18
SECTION 7.11. Counterparts..............................................................................................18
SECTION 7.12. Third-Party Beneficiaries.................................................................................19
SECTION 7.13. Merger and Integration....................................................................................19
SECTION 7.14. Headings..................................................................................................19
Exhibit A Form of Assignment
Exhibit B Form of Opinion of Counsel
Exhibit C Form of Opinion of Counsel
Exhibit D Form of Reassignment
Schedule 1 - List of Accounts
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AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated
as of November 14, 2003, between DAIMLERCHRYSLER WHOLESALE
RECEIVABLES LLC, a limited liability company organized under
the laws of the State of Delaware (together with its
successors, the "Buyer"), and DAIMLERCHRYSLER SERVICES NORTH
AMERICA LLC, a limited liability company organized under the
laws of the State of Michigan (together with its successors,
the "Seller").
W I T N E S S E T H :
WHEREAS the Seller (as successor to Chrysler Financial Company,
L.L.C., which itself was the successor to Chrysler Financial Corporation,
which itself was the successor to Chrysler Credit Corporation) in the ordinary
course of its business finances the purchase of floorplan inventory by
automotive dealers thereby generating certain payment obligations;
WHEREAS the Seller sells certain of such existing and future payment
obligations from time to time to the Buyer (as transferee from U.S. Auto
Receivables Company, which itself was the transferee from Chrysler Auto
Receivables Company), pursuant to a Receivables Purchase Agreement dated as of
May 31, 1991 (as amended and supplemented to the date hereof, the "Original
Agreement");
WHEREAS the Buyer sells such payment obligations to CARCO Auto Loan
Master Trust, pursuant to an 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 (together, as the same may from time to
time be amended, supplemented or otherwise modified, the "Pooling and
Servicing Agreement"), among the Buyer, as seller, the Seller, as servicer,
and The Bank of New York, as trustee (the "Trustee").
WHEREAS the parties hereto desire to reflect the current parties to
the Original Agreement, to adopt certain additional amendments to the Original
Agreement and to amend and restate the Original Agreement in its entirety.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms.
Capitalized terms used herein but not otherwise defined shall have
the meanings set forth in the Pooling and Servicing Agreement. In addition,
the term "Agreement" means this Amended and Restated Receivables Purchase
Agreement, as the same may from time to time be amended, supplemented or
otherwise modified and the term "Purchasers" has the meaning given to the term
"Purchased Receivables Owners" in the Pooling and Servicing Agreement.
SECTION 1.02. Other Definitional Provisions.
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, and Article, section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.01. Conveyance of Receivables.
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 Buyer on the first Closing Date, in the
case of Initial Accounts, and on the applicable Addition Date, in the case of
Additional Accounts, 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 Cut-Off Date, in the case
of the Initial 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 "proceeds"
as defined in Section 9-315 of the UCC as in effect in the State of Michigan
and Recoveries) thereof. Subject to Article VI, as of each Business Day prior
to the earlier of (x) the occurrence of an Early Amortization Event specified
in Section 9.01(b), (c), (d) or (e) of the Pooling and Servicing Agreement and
(y) 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 Buyer, 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 Security with respect thereto owned by the Seller at the
close of business on such Transfer Date and not theretofore conveyed to the
Buyer, all monies due or to become due and all amounts received with respect
thereto and all proceeds (including "proceeds" as defined in Section 9-315 of
the UCC as in effect in the State of Michigan and Recoveries) thereof. 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 Buyer of any obligation of the Servicer, the Seller, Chrysler Financial
Company L.L.C., Chrysler Financial Corporation, Chrysler Credit Corporation,
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.
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) naming the Seller as "seller" and the Buyer as
"buyer" thereon 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
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jurisdictions as are necessary to perfect the sale and assignment of the
Receivables and the Collateral Security to the Buyer, and to deliver a
file-stamped copy of such financing statements or other evidence of such
filing to the Buyer on or prior to the first Closing Date, in the case of
Initial Accounts, and (if any additional filing is so necessary) the
applicable Addition Date, in the case of Additional Accounts. In addition, the
Seller shall cause to be timely filed in the appropriate filing office any
UCC-1 financing statement and continuation statement necessary to perfect any
sale of Receivables to the Seller. The Buyer 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. The parties hereto intend that the transfers of
Receivables effected by this Agreement be sales.
In connection with such sales, the Seller further agrees, at its own
expense, on or prior to the first Closing Date, in the case of Initial
Accounts, the applicable Addition Date, in the case of Additional Accounts,
and the applicable Removal Commencement Date, in the case of Removed Accounts,
(a) to indicate in its 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 Buyer pursuant to this Agreement and
sold to the Trust pursuant to the Pooling and Servicing Agreement for the
benefit of the Certificateholders and the other Beneficiaries and (b) to
deliver to the Buyer 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 Cut-Off Date, in the case of
Initial 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 or list, as 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.
In consideration for the sale of Receivables, together with the
related Collateral Security, sold to the Buyer on the first Closing Date, the
Buyer shall pay to the Seller $495,855,802.38 in cash. Subject to Article VI,
the purchase price for the Receivables sold by the Seller to the Buyer on each
Addition Date and on each Transfer Date thereafter shall be a price agreed to
by the Buyer and the Seller at the time of acquisition by the Buyer, which
price shall not, in the opinion of the Buyer, be materially less favorable to
the Buyer than prices for transactions of a generally similar character at the
time of the acquisition taking into account the quality of such Receivables
and other pertinent factors; provided that such consideration shall in any
event not be less than reasonably equivalent value therefor.
SECTION 2.02. Representations and Warranties of the Seller Relating
to the Seller and the Agreement.
The Seller hereby represents and warrants to the Buyer as of each
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 Michigan and has, in all material
respects, full corporate power, authority and legal right to own its
properties and conduct its business as such properties are presently
owned and such business is presently
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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 corporation (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 consummation of the transactions provided for or contemplated by
this Agreement have been duly authorized by the Seller by all necessary
corporate action on the part of the Seller.
(d) No Conflict. The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement 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, the
performance of the transactions contemplated by this Agreement 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, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement, (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, (iv) seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Agreement 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.
(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, the performance of the transactions contemplated by
this Agreement, and the fulfillment of the terms hereof or thereof, have
been obtained.
(h) Enforceability. This Agreement constitutes a legal, valid and
binding obligation of the Seller enforceable against the Seller in
accordance with its terms, except
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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 first Closing Date, in the case of
Initial Accounts and, as of the applicable Addition Date, in the case of
the Additional Accounts, Schedule 1 to this Agreement is an accurate and
complete listing in all material respects of all the Accounts as of the
Cut-Off Date or the applicable Additional Cut-Off 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 Cut-Off Date or such applicable
Additional Cut-Off 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 Buyer of all right, title and interest of the Seller in
the Receivables and the Collateral Security and the proceeds thereof.
Upon the filing of the financing statements described in Section 2.01
with the Secretary of State of the State of Michigan and, in the case of
the Receivables hereafter created and the proceeds thereof, upon the
creation thereof, the Buyer shall have a first priority perfected
ownership interest in such property, subject to the rights of the
Purchasers 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 hereunder and under the
Pooling and Servicing Agreement, neither the Seller nor any Person
claiming through or under the Seller has any claim to or interest in the
Trust Assets.
The representations and warranties set forth in this Section 2.02
shall survive the transfer and assignment of the Receivables to the Buyer.
Upon discovery by the Seller or the Buyer of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other party.
In the event of any breach of any of the representations and
warranties set forth in this Section 2.02 and if, in connection therewith, the
Buyer shall be obligated to purchase the Certificateholders' Interest pursuant
to Section 2.03 of the Pooling and Servicing Agreement, the Seller shall
repurchase the Receivables and the Collateral Security and shall pay to the
Buyer on the Business Day preceding the Distribution Date on which such
purchase of the Certificateholders' Interest is to be made an amount equal to
the purchase price for the Certificateholders' Interest as specified in the
Pooling and Servicing Agreement. The obligation of the Seller to purchase the
Receivables pursuant to this Section 2.02 shall constitute the sole remedy
against the Seller respecting an event of the type specified in the first
sentence of this Section 2.02 available to the Buyer and to the Investor
Certificateholders (or the Trustee on behalf of the Investor
Certificateholders).
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SECTION 2.03. Representations and Warranties of the Seller Relating
to the Receivables.
(a) Representations and Warranties. The Seller hereby represents and
warrants to the Buyer that:
(i) Each Receivable and all Collateral Security existing on the
first Closing Date or, in the case of Additional Accounts, on the
applicable Addition Date, and on each Transfer Date, has been conveyed to
the Buyer free and clear of any Lien, subject to the rights of the
Purchasers in any Collateral Security in respect of the Partial Accounts
(other than the Vehicles relating to the Principal Receivables arising in
the Partial Accounts) and except for Liens permitted hereunder and under
the Pooling and Servicing Agreement.
(ii) With respect to each Receivable and all Collateral Security
existing on the first Closing 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 Buyer have been duly obtained,
effected or given and are in full force and effect.
(iii) On the Cut-off Date and each Closing Date, each Initial
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 first Closing Date, in the case of the Initial 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
Buyer on such date is an Eligible Receivable or, if such Receivable is
not an Eligible Receivable, such Receivable is conveyed to the Buyer in
accordance with Section 2.08.
(b) Notice of Breach. The representations and warranties set forth
in this Section 2.03 shall survive the transfer and assignment of the
Receivables to the Buyer. Upon discovery by the Seller or the Buyer of a
breach of any of the representations and warranties set forth in this Section
2.03, the party discovering such breach shall give prompt written notice to
the other party.
(c) Repurchase. In the event any representation or warranty under
Section 2.03(a) is not true and correct as of the date specified therein with
respect to any Receivable or Account and the Buyer is, in connection
therewith, required to purchase such Receivable or all Receivables in such
Account pursuant to Section 2.04(c) of the Pooling and Servicing Agreement,
then, within 30 days (or such longer period as may be agreed to by the Buyer)
of the earlier to occur of the discovery of any such event by the Seller or
the Buyer, or receipt by the Seller or the Buyer of written notice of any such
event given by the Trustee or any Enhancement Providers, the Seller shall
repurchase the Receivable or Receivables of which the Buyer is
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required to accept reassignment pursuant to the Pooling and Servicing
Agreement on the Business Day preceding the Distribution Date on which such
reassignment is to occur.
The Seller shall purchase each such Receivable by making a payment
to the Buyer in immediately available funds on the Business Day preceding the
Distribution Date on which such reassignment is to occur in an amount equal to
the Purchase Price for such Receivable. Upon payment of the Purchase Price,
the Buyer 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
Buyer in and to such Receivable, all Collateral Security and all monies due or
to become due with respect thereto and all proceeds thereof. The Buyer 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 repurchase any such Receivable shall constitute the sole remedy
respecting the event giving rise to such obligation available to the Buyer and
to the Certificateholders (or the Trustee on behalf of Certificateholders).
SECTION 2.04. Addition of Accounts.
(a) The Seller may from time to time offer to voluntarily designate
additional Eligible Accounts (including Partial Accounts) to be included as
Accounts, subject to the conditions specified in paragraph (b) below. If any
such offer is accepted by the Buyer, Receivables and Collateral Security from
such Additional Accounts shall be sold to the Buyer effective on a date (the
"Addition Date") specified in a written notice provided by the Seller (or the
Servicer on its behalf) to the Buyer and any Enhancement Providers specifying
the Additional Cut-Off Date and the Addition Date for such Additional Accounts
(the "Addition Notice") on or before the fifth Business Day but not more than
30th day prior to the related Addition Date (the "Notice Date"). The Addition
Notice shall also specify whether such Additional Accounts are Partial
Accounts.
(b) The Seller shall be permitted to convey to the Buyer the
Receivables and all Collateral Security related thereto in any Additional
Accounts designated by the Seller as such pursuant to Section 2.04(a) only
upon satisfaction of each of the following conditions on or prior to the
related Addition Date:
(i) The Seller shall provide the Buyer 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 Buyer a duly executed
written assignment (including an acceptance by the Buyer) in
substantially the form of Exhibit A (the "Assignment") and the computer
file microfiche or written list required to be delivered pursuant to
Section 2.01.
(iv) The Seller shall have delivered to the Buyer for deposit in the
Collection Account all Collections with respect to such Additional
Accounts since the Additional Cut-Off Date.
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(v) (A) No selection procedures believed by the Seller to be adverse
to the interests of the Buyer or the Beneficiaries 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, neither the Seller, the Buyer nor the
Servicer are insolvent nor will have been made insolvent by such transfer
nor are aware of any pending insolvency.
(vi) The Rating Agency Condition shall have been satisfied.
(vii) The addition of the Receivables arising in such Additional
Accounts shall not result in the occurrence of an Early Amortization
Event.
(viii) The Seller shall have delivered to the Buyer and any
Enhancement Providers a certificate of a Vice President or more senior
officer confirming the items set forth in paragraphs (ii) through (vii)
above.
(ix) On or before each Addition Date, the Seller shall deliver to
the Buyer and any Enhancement Providers an opinion of counsel with
respect to the Receivables in the Additional Accounts substantially in
the form of Exhibit B.
(c) The Seller hereby represents and warrants as of the applicable
Addition Date as to the matters set forth in Section 2.04(b)(v). The
representations and warranties set forth in Section 2.04(b)(v) shall survive
the sale and assignment of the respective Receivables and Collateral Security
to the Buyer. Upon discovery by the Seller or the Buyer of a breach of any of
the foregoing representations and warranties, the party discovering the breach
shall give prompt written notice to the other party and to any Enhancement
Providers.
(d) At least 20 days prior to each Addition Date in respect of the
designation of any Additional Accounts pursuant to this Section 2.04, the
Seller shall have given written notice of such designation to the Rating
Agencies.
The Seller hereby ratifies, confirms and adopts each Assignment that
was executed and delivered under the Original Agreement.
SECTION 2.05. Covenants of the Seller.
The Seller hereby covenants that:
(a) No Liens. Except for the conveyances hereunder, the Seller will
not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or (subject to the rights of the Purchasers 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 Section
2.09 hereof and under the Pooling and Servicing Agreement) suffer to exist any
Lien on, any Receivable or any Collateral Security, whether now existing or
hereafter created, or any interest therein, and the Seller shall defend the
right, title and interest of the Buyer and the Trust in, to and under the
Receivables and the Collateral Security, whether now existing or hereafter
created, against all claims of third parties claiming through or under the
Seller.
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(b) Floorplan Financing Agreements and Guidelines. The Seller 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 or any of the Beneficiaries. Subject to compliance with
all Requirements of Law, the Seller may change the terms and provisions of the
Floorplan Financing Agreement 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 such change would
be permitted pursuant to Section 3.01(d) of the Pooling and Servicing
Agreement.
(c) Account Allocations. In the event that the Seller is unable for
any reason to transfer Receivables to the Buyer 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 the Pooling and Servicing
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 Buyer and by the Buyer to the Trust shall
continue to be a part of the Trust notwithstanding any cessation of the
transfer of additional Principal Receivables to the Buyer and Collections with
respect thereto shall continue to be allocated and paid in accordance with
Article IV of the Pooling and Servicing Agreement.
(d) Delivery of Collections. In the event that the Seller receives
Collections, the Seller agrees to pay the Servicer or any Successor Servicer
all payments received by the Seller in respect of the Receivables as soon as
practicable after receipt thereof by the Seller, but in no event later than
two days after the receipt by the Seller thereof.
(e) Notice of Liens. The Seller shall notify the Buyer and the
Trustee promptly after becoming aware of any Lien on any Receivable other than
the conveyances hereunder or under the Pooling and Servicing Agreement.
(f) Compliance with Law. The Seller hereby agrees to comply in all
material respects with all Requirements of Law applicable to the Seller.
SECTION 2.06. Removal of Eligible Accounts.
(a) On each Determination Date on which Accounts are removed from
the Trust pursuant to Section 2.07 of the Pooling and Servicing Agreement, the
Buyer shall be deemed to have offered to the Seller automatically and without
notice to or action by or on behalf of the Buyer, the right to remove Eligible
Accounts from the operation of this Agreement in the manner prescribed in
Section 2.06(b).
(b) To accept such offer and remove Accounts, the Seller (or the
Servicer on its behalf) shall take the following actions and make the
following determinations:
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(i) not less than five Business Days prior to the Removal
Commencement Date, furnish to the Buyer, the Trustee, 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 and retransferred (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 Buyer 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 Buyer 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 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 Buyer
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
Buyer 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;
(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 Amortization 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 Beneficiaries were
utilized in selecting the Designated 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;
and
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(ix) on or before the related Removal Commencement Date, deliver to
Buyer, the Trustee and any Enhancement Providers an Officers' Certificate
confirming the items set forth in clauses (vi) and (viii) above and
confirming that the Seller reasonably believes that the removal of the
Removed Accounts will not result in the occurrence of an Early
Amortization Event; the Buyer 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.
(c) Subject to Section 2.06(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 2.06(b) and such Designated
Account shall be deemed removed by operation of this Agreement for all
purposes (a "Removed Account"). After the Removal Date and upon the written
request of the Servicer, the Buyer shall deliver to the Seller a reassignment
in substantially the form of Exhibit D (the "Reassignment").
SECTION 2.07. Removal of Ineligible Accounts.
(a) On any date on which an Account becomes an Ineligible Account
(which shall be deemed the Removal Commencement Date with respect to such
Account), the Seller shall commence removal of the Receivables of such
Ineligible Account in the manner prescribed in Section 2.07(b).
(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 Buyer, the Trustee and any Enhancement Providers
a Removal Notice specifying a 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 Buyer 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 Buyer 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 Buyer
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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
Buyer 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) On the Removal Date with respect to any such Designated Account,
the Seller shall cease to allocate any Collections therefor in accordance
herewith and such Designated Account shall be deemed a Removed Account. After
the Removal Date and upon the written request of the Servicer, the Buyer shall
deliver to the Seller a Reassignment.
SECTION 2.08. Sale of Ineligible Receivables.
The Seller shall sell to the Buyer on each Transfer Date any and all
Receivables arising in any Eligible Accounts that are Ineligible Receivables,
provided that on the 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.
SECTION 2.09. Common Collateral Security.
(a) With respect to a Dealer that is the obligor under Receivables
that have been or will be sold to the Buyer hereunder, the Seller may be or
become a lender to such Dealer under an agreement or arrangement other than a
Floorplan Financing Agreement (a "Nonfloorplan Agreement") pursuant to which
the Seller (either directly, or as assignee of the originator of the Account)
has been granted a security interest in the same Collateral Security (the
"Common Collateral Security") in which the Floorplan Financing Agreement for
such Dealer creates a security interest. For the avoidance of doubt, (i) a
Nonfloorplan Agreement and a Floorplan Financing Agreement entered into by a
Dealer and the Seller may be evidenced by a single master financing agreement
between such parties and (ii) reference in this Section 2.09 to the Common
Collateral Security includes the collateral in which the Dealer has granted a
security interest pursuant to the Nonfloorplan Agreement.
(b) The Seller agrees that with respect to each Receivable of each
such Dealer (i) the security interest in such Common Collateral Security
granted to the Seller pursuant to any Nonfloorplan Agreement is junior and
subordinate to the security interest in such Common Collateral Security
created by the related Floorplan Financing Agreement, (ii) the Seller has no
legal right to realize upon such Common Collateral Security or exercise its
rights under the Nonfloorplan Agreement in any manner that is materially
adverse to the Buyer, the Trust, the Certificateholders or the other
Beneficiaries in respect of the Common Collateral Security until all required
payments in respect of such Receivable under the Floorplan Financing Agreement
have been paid, (iii) in realizing upon such Common Collateral Security,
neither the Buyer nor the Trust will have any obligation to protect or
preserve the rights of the Seller in such Common Collateral Security and (iv)
in the event that the Seller receives any proceeds in respect of such Common
Collateral Security prior to the payment in full of such Receivable under the
Floorplan Financing Agreement, the Seller shall hold such proceeds in trust
for the benefit of the Buyer, the
12
Trust, the Certificateholders and/or the other Beneficiaries and shall pay
over and deliver forthwith such proceeds to the Trustee. The Seller and the
Buyer each hereby convenants and agrees that the foregoing agreement in this
paragraph constitutes a subordination agreement for purposes of Section 510(a)
of Title 11 of the United States Code, as amended.
(c) If the Seller in any manner assigns or transfers any rights
under, or any obligation evidenced or secured by, a Nonfloorplan Agreement,
the Seller will make such assignment or transfer subject to the provisions of
this Section 2.09 and require such assignee or transferee to acknowledge that
it takes such assignment or transfer subject to the provisions of this Section
2.09 and to agree that it will require the same acknowledgment from any
subsequent assignee or transferee.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01. Acceptance of Appointment and Other Matters Relating
to the Servicer.
(a) The Seller agrees to act as the Servicer under this Agreement
and the Pooling and Servicing Agreement, and the Buyer consents to the Seller
acting as Servicer. The Seller will have ultimate responsibility for
servicing, managing and making collections on the Receivables and will have
the authority to make any management decisions relating to such Receivables,
to the extent such authority is granted to the Servicer under this Agreement
and the Pooling and Servicing Agreement.
(b) The Servicer shall service and administer the Receivables in
accordance with the provisions of the Pooling and Servicing Agreement.
SECTION 3.02. Servicing Compensation.
As full compensation for its servicing activities hereunder and
under the Pooling and Servicing Agreement, the Servicer shall be entitled to
receive the Servicing Fee on each Distribution Date. The Servicing Fee shall
be paid in accordance with the terms of the Pooling and Servicing Agreement.
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
SECTION 4.01. Allocations and Applications of Collections and Other
Funds.
The Servicer will apply all Collections with respect to the
Receivables and all funds on deposit in the Collection Account as described in
Article IV of the Pooling and Servicing Agreement.
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ARTICLE V
OTHER MATTERS RELATING TO THE SELLER
SECTION 5.01. Merger or Consolidation of, or Assumption, of the
Obligations of the Seller.
The Seller 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 Seller
is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Seller 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 Seller 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 Seller hereunder; and
(b) the Seller has delivered to the Buyer and the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer comply with this Section 5.01
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 5.02. Seller Indemnification of the Buyer.
The Seller shall indemnify and hold harmless the Buyer, from and
against any loss, liability, expense, claim, damage or injury suffered or
sustained by reason of any acts, omissions or alleged acts or omissions
arising out of activities of the Seller pursuant to this Agreement arising out
of or based on the arrangement created by this Agreement and the activities of
the Seller taken pursuant thereto, 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 Buyer if such acts,
omissions or alleged acts or omissions constitute fraud, gross negligence or
wilful misconduct by the Buyer; and provided further, that the Seller shall
not indemnify the Buyer for any liabilities, cost or expense of the Buyer with
respect to any Federal, state or local income or franchise taxes or the
Michigan Single Business tax (or any interest or penalties with respect
thereto) required to be paid by the Buyer in connection herewith to any taxing
authority. Any indemnification under this Article V shall survive the
termination of the Agreement.
ARTICLE VI
TERMINATION
This Agreement will terminate immediately after the Trust terminates
pursuant to the Pooling and Servicing Agreement. In addition, the Buyer shall
not purchase Receivables nor shall the Seller designate Additional Accounts if
the Seller shall become an involuntary party to (or be made the subject of)
any proceeding provided for by any insolvency, readjustment of debt,
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marshalling of assets and liabilities or similar proceedings of or relating to
the Seller or relating to all or substantially all of its property (an
"Involuntary Case") and such Involuntary Case shall have continued for a
period of ten Business Days from and including the day of receipt by the
Seller at its principal corporate office of notice of such Involuntary Case;
provided, that during such ten Business Day period, the Buyer shall suspend
its purchase of Receivables and shall hold all Collections of Principal
Receivables that would have been available to purchase Receivables in the
Collection Account and (a) if by the first Business Day after such ten
Business Day period, the Buyer has not obtained an order from the court having
jurisdiction of such case or filing which order approves the continuation of
the sale of Receivables by the Seller to the Buyer and which provided that the
Buyer and any of its transferees (including the Trustee) may rely on such
order for the validity and nonavoidance of such transfer (the "Order"), the
Buyer shall hold such Collections in the Collection Account until such time as
they may be paid as elsewhere provided herein and shall not purchase
Receivables thereafter or designate Additional Accounts for transfer to the
Buyer, or (b) if by such first Business Day, the Buyer has obtained such
Order, the Seller may continue selling Receivables, and the Buyer may continue
purchasing Receivables, pursuant to the terms hereof, as modified by the
immediately succeeding sentence. During the period after the ten Business Day
period described above and before the 60-day period before filing described
below, the purchase price of the Receivables transferred during such period,
notwithstanding anything in this Agreement to the contrary, shall be paid to
the Seller by the Buyer in cash not later than the same Business Day of any
sale of Receivables. During such period, Receivables will be considered
transferred to the Buyer only to the extent that the purchase price therefor
has been paid in cash on the same Business Day. If an order is obtained but
subsequently is reversed or rescinded or expires, the Seller shall immediately
cease selling Receivables to the Buyer and the Buyer shall immediately cease
buying Receivables. If by the first Business Day after the 60-day period after
such involuntary filing, such Involuntary Case has not been dismissed, the
Buyer shall not purchase thereafter Receivables or designated Additional
Accounts for transfer to the Issuer.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01. Amendment.
(a) This Agreement may be amended from time to time by the Seller
and the Buyer; provided, however, that such action shall not, as evidenced by
an Opinion of Counsel for the Seller addressed and delivered to the Trustee,
adversely affect in any material respect the interests of any Investor
Certificateholder.
(b) This Agreement may also be amended from time to time by the
Buyer and Seller with the consent of the Holders of Investor Certificates
evidencing not less than 66-2/3% of the aggregate unpaid principal amount of
the Investor Certificates of all adversely affected Series, 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
Seller; 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
Investor Certificateholders or deposits of amounts to be so distributed with
the amount available under any Enhancement without the
15
consent of each affected Investor Certificateholder, (ii) change the
definition of or the manner of calculating the interest of any Investor
Certificateholders without the consent of each affected Certificateholder,
(iii) reduce the aforesaid percentage required to consent to any such
amendment without the consent of each Certificateholder or (iv) adversely
affect the rating of any Series or Class by each Rating Agency without the
consent of the Holders of Investor Certificates of such Series or Class
evidencing not less than 66-2/3% of the aggregate unpaid principal amount of
the Investor Certificates of such Series or Class. Any amendment to be
effected pursuant to this paragraph shall be deemed to adversely affect all
outstanding Series, other than any series with respect to which such action
shall not, as evidenced by an Opinion of Counsel for the Seller, addressed and
delivered to the Trustee, adversely affect in any material respect the
interests of any Investor Certificateholder of such Series. The Trustee may,
but shall not be obligated to, enter into any such amendment which affects the
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 Seller shall furnish
notification of the substance of such amendment to each Investor
Certificateholder Enhancement Providers and to each Rating Agency.
(d) It shall not be necessary for the consent of Investor
Certificateholders under this Section 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 Investor Certificateholders
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.
SECTION 7.02. Protection of Right, Title and Interest to
Receivables.
(a) The Seller shall cause this Agreement, all amendments hereto
and/or all financing statements and continuation statements and any other
necessary documents covering the Buyer's right, title and interest to the
Receivables and Collateral Security relating thereto 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 Buyer hereunder.
The Seller shall deliver to the Buyer 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 Buyer
shall cooperate fully with the Seller in connection with the obligations set
forth above and will execute any and all documents reasonably required to
fulfill the intent of this Section 7.02(a).
(b) Within 30 days after the Seller makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with Section 7.02(a) seriously
misleading within the meaning of Section 9-506 of the UCC as in effect in the
State of Michigan, the Seller shall give the Buyer notice of any such
16
change and shall file such financing statements or amendments as may be
necessary to continue the perfection of the Buyer's security interest in the
Receivables and the proceeds thereof.
(c) The Seller will give the Buyer prompt written notice of any
relocation of any office at which it keeps records concerning the Receivables
or of its jurisdiction of organization 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
Buyer's security interest in the Receivables and the proceeds thereof. The
Seller will at all times maintain its jurisdiction of organization within the
United States of America.
(d) The Seller will deliver to the Buyer: (i) upon the execution and
delivery of each amendment of this Agreement, an Opinion of Counsel to the
effect specified in Exhibit B; (ii) on each Addition Date on which any
Additional Accounts are to be included as the Accounts pursuant to Section
2.04 hereof, an Opinion of Counsel substantially in the form of Exhibit C; and
(iii) on or before March 31 of each year, beginning with March 31, 1992, an
Opinion of Counsel dated as of a date during such 90-day period, substantially
in the form of Exhibit C.
SECTION 7.03. Limited Recourse.
Notwithstanding anything to the contrary contained herein, the
obligations of the Buyer hereunder shall not be recourse to the Buyer (or any
person or organization acting on behalf of the Buyer or any affiliate, officer
or director of the Buyer), other than to (a) the portion of the Seller's
Interest on any date of determination which is in excess of the Required
Participation Amount and (b) any other assets of the Buyer not pledged to
third parties or otherwise encumbered in a manner permitted by the Seller's
organizational documents; provided, however, that any payment by the Seller
made in accordance with this Section 7.03 shall be made only after payment in
full of any amounts that the Seller is obligated to deposit in the Collection
Account pursuant to this Agreement; provided further that the Investor
Certificateholders shall be entitled to the benefits of the subordination of
the Collections allocable to the Seller's Interest to the extent provided in
the Supplements.
SECTION 7.04. No Petition.
The Seller hereby covenants and agrees that it will not at any time
institute against the Buyer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States Federal or state bankruptcy or similar law.
SECTION 7.05. 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, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
17
SECTION 7.06. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by registered mail, return receipt requested, to the parties at such
addresses specified in the Pooling and Servicing Agreement.
SECTION 7.07. 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 and of the Certificates or rights of the Certificateholders.
SECTION 7.08. Assignment.
Notwithstanding anything to the contrary contained herein, this
Agreement may not be assigned by the seller without the prior consent of the
Buyer and the Trustee. The Buyer may assign its rights, remedies, powers and
privileges under this Agreement to the Trust pursuant to the Pooling and
Servicing Agreement. In addition, the Buyer may assign its rights and
obligations under this Agreement to a Designated Affiliate pursuant to Section
7.04 of the Pooling and Servicing Agreement.
SECTION 7.09. Further Assurances.
The Seller agrees 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 Buyer 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.
SECTION 7.10. No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of
the Buyer, 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 herein provided are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
SECTION 7.11. 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.
18
SECTION 7.12. Third-Party Beneficiaries.
This Agreement will inure to the benefit of and be binding upon the
parties hereto, the Certificateholders and the other Beneficiaries 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 7.13. 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 7.14. Headings.
The headings herein are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.
19
IN WITNESS WHEREOF, the Seller and the Buyer have caused this
Receivables Purchase Agreement to be duly executed by their respective
officers as of the day and year first above written.
DAIMLERCHRYSLER WHOLESALE
RECEIVABLES LLC,
Buyer,
By: /s/ M.L. Davis
-----------------------------------
Name: M.L. Davis
Title: Assistant Controller
DAIMLERCHRYSLER SERVICES NORTH
AMERICA LLC,
Seller,
By: /s/ M.L. Davis
-----------------------------------
Name: M.L. Davis
Title: Assistant Controller
20
EXHIBIT A
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.04 of
the Receivables Purchase Agreement)
ASSIGNMENT NO. __ OF RECEIVABLES IN ADDITIONAL ACCOUNTS,
dated as of ___________, _____, between DaimlerChrysler
Wholesale Receivables LLC, as buyer (the "Buyer") and
DaimlerChrysler Services North America LLC, as seller (the
"Seller"), pursuant to the Receivables Purchase Agreement
referred to below.
W I T N E S S E T H :
WHEREAS, the Seller and the Buyer are parties to an Amended and
Restated Receivables Purchase Agreement, dated as of November 14, 2003 (as
amended or supplemented, the "Receivables Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, the Seller
wishes to designate Additional Accounts to be included as Accounts and to
convey the Receivables of such Additional Accounts, whether now existing or
thereafter created, to the Buyer (as each such term is defined in the
Receivables Purchase Agreement); and
WHEREAS, the Buyer is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, the Seller and the Buyer hereby agree as follows:
1. Defined Terms. Capitalized terms used herein shall have the
meanings ascribed to them in the Receivables Purchase Agreement unless
otherwise defined herein.
"Addition 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 identifying all such 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 or
list shall, as of the date of this Assignment supplement Schedule 1, to
the Agreement.
A-1
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 Receivables Purchase Agreement), to the Buyer, on the Addition
Date 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 all monies due or to
become due and all amounts received with respect thereto and all
proceeds (including "proceeds" as defined in Section 9-315 of the
UCC as in effect in the State of Michigan and 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 Buyer of any obligation of the Servicer, the
Seller, Chrysler Financial Company L.L.C., Chrysler Financial
Corporation, Chrysler Credit Corporation, 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 Buyer, and to deliver a file-stamped copy of such
financing statements or other evidence of such filing to the Buyer
on or prior to the Addition Date. In addition, the Seller shall
cause to be timely filed in the appropriate filing office any UCC-1
financing statement and continuation statement necessary to perfect
any sale of Receivables to the Seller. The Buyer 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 sale. The parties
hereto intend that the transfers of Receivables effected by this
Assignment be 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 Buyer pursuant to this
Assignment and sold to the Trust pursuant to the Pooling and
Servicing Agreement for the benefit of the Certificateholders and
the other Beneficiaries.
4. Acceptance by the Buyer. Subject to the satisfaction of the
conditions set forth in Section 6 of this Assignment, the Buyer hereby
acknowledges its acceptance of all right, title and interest to the
property, now existing and hereafter created, conveyed to the Buyer
pursuant to Section 3(a) of this Assignment. The Buyer further
acknowledges
A-2
that, prior to or simultaneously with the execution and delivery of this
Assignment, the Seller delivered to the Buyer the computer file or
microfiche or written list described in Section 2 of this Assignment.
5. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Buyer 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 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
equity).
(b) 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 Michigan and has, in all
material respects, full corporate 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 Assignment.
(c) Due Qualification. The Seller is duly qualified to do
business and, where necessary, is in good standing as a foreign
corporation (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.
(d) Eligible Accounts. Each Additional Account designated
hereby is an Eligible Account.
(e) Selection Procedures. No selection procedures believed by
the Seller to be adverse to the interests of the Buyer or the
Beneficiaries were used in selecting the Additional Accounts
designated hereby.
(f) Insolvency. As of the Notice Date and the Addition Date,
neither the Seller, the Buyer nor the Servicer are insolvent nor
will any of them have been made insolvent after giving effect to the
conveyance set forth in Section 3 of this Assignment, nor are any of
them aware of any pending insolvency.
(g) Valid Transfer. This Assignment constitutes a valid sale,
transfer and assignment to the Buyer of all right, title and
interest of the Seller in the Receivables and the Collateral
Security thereof. Upon the filing of the financing statements
described in Section 3 of this Assignment with the Secretary of
State of the State of Michigan [and other applicable states] and, in
the case of the Receivables hereafter created and the proceeds
thereof, upon the creation thereof,
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the Buyer shall have a first priority perfected ownership interest
in such property, subject to the rights of the Purchasers in any
Collateral Security in respect of the Partial Accounts (other than
vehicles relating to Principal Receivables arising in the Partial
Accounts). Except for Liens permitted under the Receivables Purchase
Agreement and under the Pooling and Servicing Agreement, neither the
Seller nor any Person claiming through or under the Seller has any
claim to or interest in the Trust Assets.
(h) Due Authorization. The execution and delivery of this
Assignment and the consummation of the transactions provided for or
contemplated by this Assignment have been duly authorized by the
Seller by all necessary corporate action on the part of the Seller.
(i) 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 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
such Seller is a party or by which it or its properties are bound.
(j) 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 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.
(k) 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, (v) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of
this Agreement or the Certificates or (vi) 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.
(l) 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
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Receivables existing thereunder is true and correct in all material
respects as of the Additional Cut-Off Date.
(m) No Liens. Each Receivable and all Collateral Security
existing on the Addition Date has been conveyed to the Buyer free
and clear of any Lien, subject to the rights of the Purchasers in
any Collateral Security in respect of the Partial Accounts (other
than the vehicles relating to the Principal Receivables arising in
the Partial Accounts) and except for Liens permitted under the
Receivables Purchase Agreement and under the Pooling and Servicing
Agreement.
(n) All Consents Required. With respect to each Receivable and
all Collateral Security existing on the Addition Date, 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
Assignment and the Certificates, the conveyance of each Receivable
and Collateral Security, the performance of the transactions
contemplated by this Assignment, and the fulfillment of the terms
hereof or thereof, have been obtained, effected or given and are in
full force and effect.
(o) Eligible Receivables. On the Additional Cut-Off Date, each
Receivable conveyed to the Buyer as of such date is an Eligible
Receivable or, if such Receivable is not an Eligible Receivable,
such Receivable is conveyed to the Buyer in accordance with Section
2.08 of the Receivables Purchase Agreement.
6. Conditions Precedent. The acceptance of the Buyer set forth in
Section 4 of this Assignment are 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
2.04(b) of the Receivables Purchase Agreement applicable to the
designation of the Additional Accounts to be designated hereby shall
have been satisfied; and
(c) Additional Information. The Seller shall have delivered to
the Buyer such information as was reasonably requested by the Buyer
to satisfy itself as to the accuracy of the representation and
warranty set forth in Section 5(d) of this Assignment.
7. Ratification of Agreement. As supplemented by this Assignment,
the Receivables Purchase Agreement is in all respects ratified and
confirmed and the Receivables Purchase Agreement as so supplemented by
this Assignment shall be read, taken and construed as one and the same
instrument.
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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, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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IN WITNESS WHEREOF, the Seller and the Buyer 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,
Buyer,
By:
----------------------------------
Name:
Title:
DAIMLERCHRYSLER SERVICES NORTH
AMERICA LLC,
Seller,
By:
-----------------------------------
Name:
Title:
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EXHIBIT B
FORM OF OPINION OF COUNSEL
(As required by Section 7.02(d) of
the Receivables Purchase Agreement)
(a) The Amendment to the Receivables Purchase 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).
(b) The Amendment has been entered into in accordance with the terms
and provisions of Section 7.01 of the Receivables Purchase Agreement.
(c) The Amendment will not adversely affect in any material respect
the interests of the Investor Certificateholders. [Include this clause (c)
only in the case of amendments effected pursuant to Section 7.01(a) of the
Receivables Purchase Agreement.]
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EXHIBIT C
FORM OF OPINION OF COUNSEL
Provisions to Be Included in Opinion of
Counsel Delivered Pursuant to Section 7.02(d)
of the Receivables Purchase Agreement*
The opinions set forth below may be subject to all the applicable
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 Amended and Restated Receivables
Purchase Agreement dated as of November 14, 2003 (the "Receivables Purchase
Agreement") between DaimlerChrysler Services North America LLC, as buyer (the
"Buyer") and the Seller.
[(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 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).
(c) With respect to Receivables [in the Additional Accounts] in
existence on the date hereof with respect to Receivables [in the Additional
Accounts] that come into existence after the date hereof, upon the creation of
such Receivables and the subsequent transfer of such Receivables to the Buyer
free and clear of any Liens in accordance with the Receivables Purchase
Agreement and receipt by the Seller of the consideration therefor required
pursuant to the Receivables Purchase Agreement, a bankruptcy court having
jurisdiction over the Seller (i) would not be entitled to compel the turnover
of such Receivables or the proceeds thereof to the Seller under Section 542 of
the Bankruptcy Code and (ii) would not be entitled to treat such Receivables
or the proceeds thereof as assets included in the estate of the Seller
pursuant to Section 541 of the Bankruptcy Code or subject to the automatic
stay provision of Section 362(a) of the Bankruptcy Code.
- --------------
* Include bracketed language only in the case of additions of Accounts
effected pursuant to Section 2.04 of the Receivables Purchase Agreement.
C-1
EXHIBIT D
FORM OF REASSIGNMENT OF RECEIVABLES
(As required by Section 2.06 of
the Receivables Purchase Agreement referred to below)
REASSIGNMENT NO. __ OF RECEIVABLES dated as of
___________, _____ by and between DaimlerChrysler Wholesale
Receivables LLC, as buyer (the "Buyer"), and DaimlerChrysler
Services North America LLC, as seller (the "Seller"), pursuant
to the Receivables Purchase Agreement referred to below.
W I T N E S S E T H :
WHEREAS the Seller and the Buyer are parties to the Amended and
Restated Receivables Purchase Agreement, dated as of November 14, 2003 (as
amended or supplemented, the "Receivables Purchase Agreement");
WHEREAS pursuant to the Receivables Purchase Agreement, the Seller
wishes to remove all Receivables from certain designated Accounts and the
Collateral Security thereof (the "Removed Accounts") and to cause the Buyer to
reconvey such Removed Accounts and such Collateral Security, whether now
existing or hereafter created, from the Buyer to the Seller (as each such term
is defined in the Receivables Purchase Agreement); and
WHEREAS, the Buyer 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 Buyer hereby agree as follows:
(i) 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, ___________, _____.
(ii) Designation of Accounts to be Removed. The Seller shall deliver
to the Buyer, 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
D-1
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
Receivables Purchase Agreement.
(iii) Conveyance of Receivables and Accounts.
(1) The Buyer 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), all proceeds (as
defined in Section 9-315 of the UCC as in effect in the State of
Michigan and Recoveries) thereof relating thereto.
(2) If requested by the Buyer, in connection with such
transfer, the Buyer agrees to execute and deliver 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 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.
(iv) Acceptance by Buyer. The Buyer hereby acknowledges that, prior
to or simultaneously with the execution and delivery of this
Reassignment, the Seller delivered to the Buyer the computer file or
microfiche or written list described in paragraph (ii) of this
Reassignment.
(v) Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Buyer as of the Removal Date:
(1) 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);
(2) No Early Amortization Event. The removal of any such
Eligible Account hereby removed shall not, in the reasonable belief
of the Seller, cause an Early Amortization Event to occur or cause
the Pool Balance to be less than the Required Participation Amount;
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(3) Selection Procedures. No selection procedures believed by
the Seller to be adverse to the interests of the Beneficiaries were
utilized in selecting the Designated Accounts; and
(4) The list of Removed Accounts delivered pursuant to Section
2 of this Reassignment, as of the removal Commencement Date, is 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 (v)(1)
above.
(vi) Conditions Precedent. The ratification of the Receivables
Purchase Agreement set forth in paragraph (vii) hereof is subject to the
satisfaction, on or prior to the Removal Date, of the following condition
precedent:
Officers' Certificate. The Seller shall have delivered to the
Buyer, the Trustee and the Enhancement Providers an Officers'
Certificate certifying that each of the representations and
warranties made by the Seller in paragraph (v) hereof is true and
correct as of the Removal Date and that the Seller reasonably
believes that the removal of the Removed Accounts will not result in
the occurrence of an Early Amortization Event. The Buyer 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.
(vii) Ratification of Receivables Purchase Agreement. As
supplemented by this Reassignment, the Receivables Purchase Agreement is
in all respects ratified and confirmed and the Receivables Purchase
Agreement as so supplemented by this Reassignment shall be read, taken
and construed as one and the same instrument.
(viii) 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.
(ix) 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, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
D-3
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,
Buyer,
By:
-----------------------------------
Name:
Title:
DAIMLERCHRYSLER SERVICES NORTH
AMERICA LLC,
Seller,
By:
-----------------------------------
Name:
Title:
D-4
SCHEDULE 1
LIST OF ACCOUNTS
[Deemed to be incorporated.]
Sch-1