Exhibit 99.1
PROGRAM AMENDMENT AGREEMENT
PROGRAM AMENDMENT AGREEMENT, dated as of December 16, 2004 (this
"Agreement"), among DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC, a Delaware
limited liability company ("DCWR"), DAIMLERCHRYSLER SERVICES NORTH AMERICA
LLC, a Michigan limited liability company ("DCS"), THE BANK OF NEW YORK, a New
York banking corporation, as trustee under the Pooling and Servicing Agreement
(in such capacity, as successor to Manufacturers and Traders Trust Company,
the "CARCO Trust Trustee"), and as indenture trustee under the Existing
Indenture (in such capacity, the "Indenture Trustee"), DAIMLERCHRYSLER MASTER
OWNER TRUST, a Delaware statutory trust (the "Issuer"), and CHASE MANHATTAN
BANK USA, NATIONAL ASSOCIATION, a national banking association, as trustee of
the Issuer (in such capacity, the "Owner Trustee").
WITNESSETH:
WHEREAS, DCS (as successor to CFC, which itself was the successor
to CFC Corp., which itself was the successor to CCC) and DCWR (as transferee
from US Auto, which itself was the transferee from CARCO) are parties to the
Amended and Restated Receivables Purchase Agreement, dated as of November 14,
2003 (the "Existing Receivables Purchase Agreement"), pursuant to which DCS
has sold and will sell to DCWR the Receivables arising from time to time in
the Accounts, together with all related Collateral Security;
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"), pursuant to which (i) DCWR has sold and will sell to
the CARCO Trust Trustee, on behalf of the CARCO Auto Loan Master Trust (the
"CARCO Trust"), the Receivables and related Collateral Security acquired from
DCS, (ii) DCS has agreed to service such Receivables and Collateral Security
and (iii) the CARCO Trust has issued to DCWR a certificate (the "CARCO
Certificate"), which is the sole Seller's Certificate (as defined in the
Pooling and Servicing Agreement) outstanding as of the date hereof;
WHEREAS, DCWR, DCS and the CARCO Trust Trustee are parties to the
Series 2002-CC Supplement, dated as of June 1, 2002 (the "Series 2002-CC
Supplement"), pursuant to which the CARCO Trust has issued the Auto Loan Asset
Backed Certificates, Series 2002-CC (the "Collateral Certificate"), which is
the sole series of Investor Certificates (as defined in the Pooling and
Servicing Agreement) outstanding as of the date hereof;
WHEREAS, DCWR and the Owner Trustee are parties to the Trust
Agreement, dated as of June 1, 2002 (the "Existing Trust Agreement"), pursuant
to which (i) the Issuer was formed and (ii) DCWR transferred the Collateral
Certificate to the Issuer;
WHEREAS, the Issuer and the Indenture Trustee are parties to the
Indenture, dated as of June 1, 2002 (the "Existing Indenture"), pursuant to
which the Issuer has granted a security interest in the Collateral Certificate
acquired from DCWR, together with all other
Collateral of the Issuer, to the Indenture Trustee in order to secure the
Notes from time to time issued by the Issuer under the Existing Indenture;
WHEREAS, the Issuer and the Indenture Trustee are parties to the
Series 2002-A Indenture Supplement, dated as of June 1, 2002 (the "Existing
Series 2002-A Indenture Supplement"), pursuant to which the Issuer has issued
the Floating Rate Auto Dealer Loan Asset Backed Notes, Series 2002-A (the
"Series 2002-A Notes");
WHEREAS, the Issuer and the Indenture Trustee are parties to the
Series 2002-B Indenture Supplement, dated as of November 1, 2002 (the
"Existing Series 2002-B Indenture Supplement"), pursuant to which the Issuer
has issued the Floating Rate Auto Dealer Loan Asset Backed Notes, Series
2002-B (the "Series 2002-B Notes");
WHEREAS, the Issuer and the Indenture Trustee are parties to the
Series 2003-A Indenture Supplement, dated as of March 1, 2003 (the "Existing
Series 2003-A Indenture Supplement"), pursuant to which the Issuer has issued
the Floating Rate Auto Dealer Loan Asset Backed Notes, Series 2003-A (the
"Series 2003-A Notes");
WHEREAS, the Issuer and the Indenture Trustee are parties to the
Series 2004-A Indenture Supplement, dated as of January 1, 2004 (the "Existing
Series 2004-A Indenture Supplement"), pursuant to which the Issuer has issued
the Floating Rate Auto Dealer Loan Asset Backed Notes, Series 2004-A (the
"Series 2004-A Notes");
WHEREAS, the Issuer and the Indenture Trustee are parties to the
Series 2004-B Indenture Supplement, dated as of August 1, 2004 (the "Existing
Series 2004-B Indenture Supplement"), pursuant to which the Issuer has issued
the Floating Rate Auto Dealer Loan Asset Backed Notes, Series 2004-B (the
"Series 2004-B Notes");
WHEREAS, the Issuer, DCS and the Indenture Trustee are parties to
the Administration Agreement, dated as of June 1, 2002 (the "Existing
Administration Agreement"), pursuant to which DCS has agreed to act as
administrator on behalf of the Issuer; and
WHEREAS, in accordance with the applicable amendment provisions of
the Existing Transaction Documents, including without limitation Section
1001(l) of the Existing Indenture, the parties hereto now desire by this
Agreement to provide for the dissolution of the CARCO Trust governed under the
Pooling and Servicing Agreement and the termination of the Pooling and
Servicing Agreement (and the Series 2002-CC Supplement) by effecting, among
other things, (i) the delivery of the Collateral Certificate by the Indenture
Trustee, on behalf of the Issuer 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 Issuer to DCWR pursuant to the Restated Trust Agreement, (iv) the
amendment and restatement of the Existing Transaction Documents to reflect,
among other things, the direct ownership of the Receivables and related
Collateral Security by the Issuer and the grant of a security interest in such
property by the Issuer to the Indenture Trustee and (v) the execution and
delivery by DCS, DCWR and the Issuer of the Sale and Servicing Agreement,
dated as of December 16, 2004 (the "Sale and Servicing Agreement"), which
shall
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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 premises and of the mutual
covenants herein contained, the parties hereby agree as follows:
SECTION 1. Definitions.
(a) Unless the context requires a different meaning, capitalized
terms are used in this Agreement as defined below:
"Effective Date" means the first date on which each of the
conditions specified in Section 12 hereof have been satisfied.
"Existing Transaction Documents" means, collectively, the
Existing Receivables Purchase Agreement, the Existing Trust Agreement,
the Existing Indenture, the Existing Series 2002-A Indenture Supplement,
the Existing Series 2002-B Indenture Supplement, the Existing Series
2003-A Indenture Supplement, the Existing Series 2004-A Indenture
Supplement, the Existing Series 2004-B Indenture Supplement and the
Existing Administration Agreement.
"Outstanding Notes" means, collectively, the Series 2002-A
Notes, the Series 2002-B Notes, the Series 2003-A Notes, the Series
2004-A Notes and the Series 2004-B Notes.
"Restated Transaction Documents" means, collectively, the
Restated Receivables Purchase Agreement, the Restated Trust Agreement,
the Restated Indenture, the Restated Series 2002-A Indenture Supplement,
the Restated Series 2002-B Indenture Supplement, the Restated Series
2003-A Indenture Supplement, the Restated Series 2004-A Indenture
Supplement, the Restated Series 2004-B Indenture Supplement and the
Restated Administration Agreement.
(b) Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the Sale and Servicing Agreement.
SECTION 2. Delivery and Cancellation of Collateral Certificate and
CARCO Certificate.
(a) Notwithstanding anything to the contrary in the Existing
Indenture (or in any indenture supplement), the Indenture Trustee, on behalf
of itself, the Noteholders and the other Secured Parties, is hereby directed
by the Issuer and DCWR to deliver on the Effective Date the Collateral
Certificate to the CARCO Trust Trustee for cancellation. Such delivery of the
Collateral Certificate by the Indenture Trustee shall be without recourse,
representation or warranty, except as expressly provided in Section 11 hereof.
Upon its receipt of the Collateral Certificate, the CARCO Trust Trustee shall,
notwithstanding anything to the contrary in the Pooling and Servicing
Agreement (or the Series 2002-CC Supplement), promptly cancel and destroy the
Collateral Certificate in accordance with its customary procedures; provided,
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however, that the CARCO Trust Trustee shall furnish DCWR with a copy of the
cancelled Collateral Certificate prior to its destruction.
(b) On or prior to the Effective Date, DCWR shall have delivered
the CARCO Certificate to the CARCO Trust Trustee for cancellation. On the
Effective Date or promptly thereafter, the CARCO Trust Trustee shall,
notwithstanding anything to the contrary in the Pooling and Servicing
Agreement, cancel and destroy the CARCO Certificate in accordance with the
CARCO Trust Trustee's customary procedures; provided, however, that the CARCO
Trust Trustee shall furnish DCWR with a copy of the cancelled CARCO
Certificate prior to its destruction.
SECTION 3. Issuance of DCMOT Certificate. In accordance with
Article X of the Restated Trust Agreement, the Owner Trustee is hereby
directed to execute the DCMOT Certificate on behalf of the Issuer, and to
authenticate and deliver such DCMOT Certificate to or upon the order of DCWR
on the Effective Date. The Bank of New York, in its capacity as Certificate
Registrar under the Restated Trust Agreement, shall register DCWR as the sole
holder of the DCMOT Certificate in the Certificate Register (as defined in the
Restated Trust Agreement) on the Effective Date.
SECTION 4. Termination of CARCO Trust and Pooling and Servicing
Agreement. Notwithstanding anything to the contrary in the Pooling and
Servicing Agreement (including, without limitation, Article XII thereof) or
the Series 2002-CC Supplement:
(i) the Invested Amount (as defined in the Pooling and
Servicing Agreement) of the Collateral Certificate shall be deemed to be
zero on the Effective Date and the final distribution in respect of the
Collateral Certificate shall be deemed to have been made on such date;
(ii) the Effective Date shall be deemed to be the Trust
Termination Date (as defined in the Pooling and Servicing Agreement) of
the CARCO Trust; and
(iii) the Pooling and Servicing Agreement and the Series
2002-CC Supplement shall each be deemed to be terminated in accordance
with its terms and of no further force and effect as of the Effective
Date; provided, however, that (x) the rights and remedies under the
indemnification and expense provisions of Sections 7.03, 8.04 and 11.05
of the Pooling and Servicing Agreement shall survive the termination of
the Pooling and Servicing Agreement and the Series 2002-CC Supplement
and (y) the security interest in the Receivables and related Collateral
Security (each, as defined in the Pooling and Servicing Agreement)
granted by DCWR to the CARCO Trustee on behalf of the CARCO Trust under
the Pooling and Servicing Agreement shall survive the termination of the
Pooling and Servicing Agreement and the Series 2002-CC Supplement and
such security interest shall be assigned to the Issuer pursuant to
Section 5(a) hereof.
SECTION 5. Conveyance of Receivables and Related Rights.
(a) By execution of this Agreement, the CARCO Trust Trustee, on
behalf of the CARCO Trust, does hereby sell, transfer, assign, set over and
otherwise convey, without recourse, representation or warranty (except as
expressly provided in Section 10 hereof), to the
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Issuer on the Effective Date (i) all right, title and interest in, to and
under all of the Receivables in each Account and all Collateral Security with
respect thereto owned by the CARCO Trust whether at the close of business on
the Initial Cut-Off Date or thereafter created, and all monies due or to
become due and all amounts received with respect thereto (including, without
limitation, all amounts in the CARCO Collection Account and the CARCO Excess
Funding Account) and all proceeds thereof, (ii) all rights, remedies, powers
and privileges of the CARCO Trust against DCWR with respect to such
Receivables and Collateral Security (including, without limitation, the
security interest in such Receivables and Collateral Security granted) under
the Pooling and Servicing Agreement and the Series 2002-CC Supplement and
(iii) all rights, remedies, powers and privileges of the CARCO Trust against
DCS with respect to such Receivables and Collateral Security under the
Existing Receivables Purchase Agreement.
(b) The CARCO Trust Trustee hereby agrees to execute and deliver
such instruments of transfer and assignment, in each case without recourse,
representation or warranty (except as expressly provided in Section 10
hereof), as shall be reasonably requested by DCWR to vest in the Issuer all
right, title and interest which the CARCO Trust had in all such property.
(c) The parties hereto acknowledge and agree that (i) the
conveyance pursuant to Section 5(a) above is being made by the CARCO Trust
Trustee to the Issuer, as the designee and assignee of DCWR, in accordance
with Section 12.03 of the Pooling and Servicing Agreement, (ii) such
conveyance shall be confirmed, ratified and adopted by DCWR pursuant to the
Sale and Servicing Agreement and (iii) a security interest in the property so
conveyed to the Issuer will be granted by the Issuer to the Indenture Trustee
for the benefit of the Secured Parties pursuant to the Restated Indenture.
SECTION 6. Transfer of Funds to Collection Account and Excess
Funding Account.
(a) 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 established and maintained in the name of the Indenture
Trustee pursuant to the Restated Indenture and (iii) shall terminate the CARCO
Collection Account.
(b) 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 established and maintained in the name of the
Indenture Trustee pursuant to the Restated Indenture and (iii) shall terminate
the CARCO Excess Funding Account.
(c) The CARCO Trust Trustee shall notify DCWR in writing of the
amounts, if any, transferred to the Collection Account and the Excess Funding
Account pursuant to Sections 6(a) and (b) above.
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SECTION 7. Execution of Sale and Servicing Agreement; Amendment
and Restatement of Existing Agreements.
(a) From and after the Effective Date, the sale and servicing
provisions of the Pooling and Servicing Agreement (and the Series 2002-CC
Supplement) shall, to the extent applicable, be contained in the Sale and
Servicing Agreement as set forth in Exhibit A hereto. The parties thereto
shall execute a copy of the Sale and Servicing Agreement in the form of such
exhibit.
(b) From and after the Effective Date, the Existing Receivables
Purchase Agreement shall be amended and restated as set forth in Exhibit B
hereto (as so amended and restated, the "Restated Receivables Purchase
Agreement"). The parties thereto shall execute a copy of the Restated
Receivables Purchase Agreement in the form of such exhibit in order to further
evidence such amendment and restatement.
(c) From and after the Effective Date, the Existing Trust
Agreement shall be amended and restated as set forth in Exhibit C hereto (as
so amended and restated, the "Restated Trust Agreement"). The parties thereto
shall execute a copy of the Restated Trust Agreement in the form of such
exhibit in order to further evidence such amendment and restatement.
(d) From and after the Effective Date, the Existing Indenture
shall be amended and restated as set forth in Exhibit D hereto (as so amended
and restated, the "Restated Indenture"). The parties thereto shall execute a
copy of the Restated Indenture in the form of such exhibit in order to further
evidence such amendment and restatement.
(e) From and after the Effective Date, the Existing Series 2002-A
Indenture Supplement shall be amended and restated as set forth in Exhibit E
hereto (as so amended and restated, the "Restated Series 2002-A Indenture
Supplement"). The parties thereto shall execute a copy of the Restated Series
2002-A Indenture Supplement in the form of such exhibit in order to further
evidence such amendment and restatement.
(f) From and after the Effective Date, the Existing Series 2002-B
Indenture Supplement shall be amended and restated as set forth in Exhibit F
hereto (as so amended and restated, the "Restated Series 2002-B Indenture
Supplement"). The parties thereto shall execute a copy of the Restated Series
2002-B Indenture Supplement in the form of such exhibit in order to further
evidence such amendment and restatement.
(g) From and after the Effective Date, the Existing Series 2003-A
Indenture Supplement shall be amended and restated as set forth in Exhibit G
hereto (as so amended and restated, the "Restated Series 2003-A Indenture
Supplement"). The parties thereto shall execute a copy of the Restated Series
2003-A Indenture Supplement in the form of such exhibit in order to further
evidence such amendment and restatement.
(h) From and after the Effective Date, the Existing Series 2004-A
Indenture Supplement shall be amended and restated as set forth in Exhibit H
hereto (as so amended and restated, the "Restated Series 2004-A Indenture
Supplement"). The parties thereto shall execute a copy of the Restated Series
2004-A Indenture Supplement in the form of such exhibit in order to further
evidence such amendment and restatement.
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(i) From and after the Effective Date, the Existing Series 2004-B
Indenture Supplement shall be amended and restated as set forth in Exhibit I
hereto (as so amended and restated, the "Restated Series 2004-B Indenture
Supplement"). The parties thereto shall execute a copy of the Restated Series
2004-B Indenture Supplement in the form of such exhibit in order to further
evidence such amendment and restatement.
(j) From and after the Effective Date, the Existing Administration
Agreement shall be amended and restated as set forth in Exhibit J hereto (as
so amended and restated, the "Restated Administration Agreement"). The parties
thereto shall execute a copy of the Restated Administration Agreement in the
form of such exhibit in order to further evidence such amendment and
restatement.
SECTION 8. Representations and Warranties of DCWR and DCS. Each of
DCWR and DCS hereby represents as to itself that:
(i) this Agreement has been duly authorized, executed and
delivered by such party, and constitutes a legal, valid, and binding
obligation of such party, enforceable against such party in accordance
with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable
principles relating to or limiting creditors' rights generally;
(ii) as of the Effective Date and after giving effect to
this Agreement, no Early Redemption Event or Event of Default (as
defined in the Restated Indenture) has occurred which is continuing and
no condition exists which, with the lapse of time or giving of notice or
both, will become an Early Redemption Event or Event of Default;
(iii) other than as contemplated in this Agreement, the
Pooling and Servicing Agreement, the Sale and Servicing Agreement, the
Existing Receivables Purchase Agreement and the Restated Receivables
Purchase Agreement, as applicable, such party has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the
Receivables or any other asset of the CARCO Trust;
(iv) such party has not authorized the filing of and is not
aware of any financing statement against such party that includes a
description of collateral covering the Receivables or any other asset of
the CARCO Trust, other than the financing statements that are
contemplated in this Agreement, the Pooling and Servicing Agreement, the
Sale and Servicing Agreement, the Existing Receivables Purchase
Agreement and the Restated Receivables Purchase Agreement, as
applicable, or that have been terminated;
(v) such party is not aware of any judgment or tax lien
filings against it; and
(vi) as of the Effective Date, no Supplemental Certificate
(as defined in the Pooling and Servicing Agreement) is outstanding.
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SECTION 9. Representations and Warranties of Issuer. The Issuer
hereby represents that:
(i) other than as contemplated in this Agreement and the
Existing Indenture, it has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed the Collateral Certificate
or any other asset of the Issuer;
(ii) the Issuer has not authorized the filing of and is not
aware of any financing statement against the Issuer that includes a
description of collateral covering the Collateral Certificate or any
other asset of the Issuer, other than the financing statements that are
contemplated in this Agreement and the Existing Indenture, or that have
been terminated; and
(iii) the Issuer is not aware of any judgment or tax lien
filings against it.
SECTION 10. Representations and Warranties of CARCO Trust Trustee.
The CARCO Trust Trustee hereby represents that:
(i) it has no actual knowledge of any Liens affecting the
Receivables or their proceeds, as such terms are defined and described
in the Pooling and Servicing Agreement, other than as contemplated in
this Agreement, the Pooling and Servicing Agreement, the Sale and
Servicing Agreement, the Existing Receivables Purchase Agreement and the
Restated Receivables Purchase Agreement; and
(ii) other than as contemplated in this Agreement, the
Pooling and Servicing Agreement and the Sale and Servicing Agreement,
the CARCO Trust Trustee has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the Receivables or
any other asset of the CARCO Trust.
The CARCO Trust Trustee agrees that it will, in its individual capacity and at
its own cost and expense, promptly take all action as may be necessary to
discharge any lien, pledge, security interest or other encumbrance on the
Receivables or any other asset of the CARCO Trust that results from actions by
or claims against the CARCO Trust Trustee not related to the CARCO Trust
Trustee's ownership of the Receivables or any other asset of the CARCO Trust
pursuant to the Pooling and Servicing Agreement.
SECTION 11. Representations and Warranties of Indenture Trustee.
The Indenture Trustee hereby represents that:
(i) it has no actual knowledge or notice of an "adverse
claim" (as used in Articles 8 and 9 of the UCC) on, or any Liens
affecting, the Collateral Certificate or its proceeds, as such terms are
defined in the Existing Indenture, other than as contemplated in the
Existing Indenture; and
(ii) since the issuance of the Collateral Certificate, the
Indenture Trustee has maintained continuous possession thereof in the
State of New York; and
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(iii) other than as contemplated in this Agreement and the
Existing Indenture, the Indenture Trustee has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed the
Collateral Certificate.
The Indenture Trustee agrees that it will, in its individual capacity and at
its own cost and expense, promptly take all action as may be necessary to
discharge any lien, pledge, security interest or other encumbrance on the
Collateral Certificate that results from actions by or claims against the
Indenture Trustee not related to the security interest granted to the
Indenture Trustee in the Collateral Certificate pursuant to the Existing
Indenture.
SECTION 12. Conditions Precedent. The effectiveness of this
Agreement, and the transactions contemplated hereby, shall be subject to the
satisfaction of each of the following conditions:
(i) the Indenture Trustee shall have received executed
counterparts of this Agreement, the Sale and Servicing Agreement and
each Restated Transaction Document, duly executed by the respective
parties thereto;
(ii) the representations and warranties of DCWR and DCS set
forth in Section 8 hereof are true and correct on the Effective Date;
(iii) the Indenture Trustee and the Owner Trustee shall have
received an Officer's Certificate (as defined in the Existing Indenture)
to the effect that the Issuer reasonably believes that the execution,
delivery and performance of this Agreement, the Sale and Servicing
Agreement and each Restated Transaction Document will not have an
Adverse Effect (as defined in the Existing Indenture), and is not
reasonably expected to have such an Adverse Effect at any time in the
future;
(iv) the Indenture Trustee shall have received copies, as
certified by an Assistant Secretary of a Member of DCWR, of (i) the
resolutions of the Members of DCWR authorizing the execution, delivery
and performance of this Agreement, the Sale and Servicing Agreement and
each Restated Transaction Document to which DCWR is a party, (ii) the
Certificate of Formation of DCWR, (iii) the Amended and Restated Limited
Liability Company Agreement of DCWR, (iv) a good standing certificate of
DCWR and (v) the specimen signatures of the authorized signatories of
DCWR;
(v) the Indenture Trustee shall have received copies, as
certified by an Assistant Secretary of DCS, of (i) the resolutions of
the Manager of DCS authorizing the execution, delivery and performance
of this Agreement, the Sale and Servicing Agreement and each Restated
Transaction Document to which DCS is a party, (ii) the Articles of
Organization of DCS, (iii) the Amended Operating Agreement of DCS and
(iv) a good standing certificate of DCS and (v) the specimen signatures
of the authorized signatories of DCS;
(vi) DCWR, DCS and the Indenture Trustee shall have received
written confirmation from Fitch, Inc. ("Fitch") that the execution and
delivery of this Agreement
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will not result in a suspension, reduction or withdrawal of the then
current ratings assigned by Fitch to any of the Outstanding Notes;
(vii) DCWR, DCS and the Indenture Trustee shall have
received written confirmation from Moody's Investors Service, Inc.
("Moody's") that the execution and delivery of this Agreement will not
result in a suspension, reduction or withdrawal of then current ratings
assigned by Moody's to any of the Outstanding Notes;
(viii) DCWR, DCS and the Indenture Trustee shall have
received written confirmation from Standard & Poor's Rating Services, a
division of The McGraw-Hill Companies, Inc. ("S&P") that the execution
and delivery of this Agreement will not result in a suspension,
reduction or withdrawal of then current ratings assigned by S&P to any
of the Outstanding Notes;
(ix) the Indenture Trustee shall have received an opinion of
internal counsel to DCWR and DCS, dated the date hereof, in form and
substance reasonably satisfactory to the Indenture Trustee, with respect
to this Agreement, the Sale and Servicing Agreement and the Restated
Transaction Documents;
(x) the Indenture Trustee shall have received an opinion of
special counsel to DCWR, dated the date hereof, in form and substance
reasonably satisfactory to the Indenture Trustee, with respect to
security interest matters under the New York UCC;
(xi) the Indenture Trustee shall have received an opinion of
special United States federal tax counsel to the Issuer, dated the date
hereof, in form and substance reasonably satisfactory to the Indenture
Trustee;
(xii) the Indenture Trustee shall have received an opinion
of Delaware counsel to the Issuer, dated the date hereof, in form and
substance reasonably satisfactory to the Indenture Trustee, with respect
to the Issuer and the DCMOT Certificate;
(xiii) the Indenture Trustee shall have received an opinion
of Delaware counsel to DCWR, dated the date hereof, in form and
substance reasonably satisfactory to the Indenture Trustee, with respect
to DCWR;
(xiv) the Indenture Trustee shall have received an opinion
of Delaware counsel to DCWR, dated the date hereof, in form and
substance reasonably satisfactory to the Indenture Trustee, with respect
to security interest matters under the Delaware UCC;
(xv) the Issuer shall have received an opinion of counsel to
the CARCO Trust Trustee, dated the date hereof, in form and substance
reasonably satisfactory to the Issuer, with respect to the CARCO
Trustee;
(xvi) the Issuer shall have received an opinion of counsel
to the Indenture Trustee, dated the date hereof, in form and substance
reasonably satisfactory to the Issuer, with respect to the Indenture
Trustee;
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(xvii) the Indenture Trustee shall have received an opinion
of counsel to the Owner Trustee, dated the date hereof, in form and
substance reasonably satisfactory to the Indenture Trustee, with respect
to the Owner Trustee;
(xviii) evidence that UCC financing statements, amendments
and/or assignments, as prepared by the Servicer, shall have been
delivered to the appropriate filing offices in the relevant
jurisdictions for filing; and
(xix) such other documents, opinions or certificates as may
be reasonably requested by the Indenture Trustee.
SECTION 13. Limitation on Liability of Trustees.
(a) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by The Bank of New York, not in its
individual capacity but solely as CARCO Trust Trustee and as Indenture
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
CARCO Trust or the Issuer 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 CARCO Trust and of the Issuer, as applicable.
(b) 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 Issuer, and in no event shall Chase Manhattan Bank USA,
National Association in its individual capacity or, except as expressly
provided in the Restated Trust Agreement, any beneficial owner of the Issuer
have any liability for the representations, warranties, covenants, agreements
or other obligations of the Issuer 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 Issuer. 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 Issuer 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 Restated Trust Agreement.
SECTION 14. Successors and Assigns. This Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns.
SECTION 15. Amendments. This Agreement may be modified or waived
only by an instrument or instruments in writing signed by all of the parties
hereto.
SECTION 16. 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.
11
SECTION 17. Severability. Any covenant, provision, agreement or
term of this Agreement that is prohibited or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof.
SECTION 18. Headings. The headings in this Agreement are for the
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
SECTION 19. Counterparts. This Agreement may be executed in
multiple counterparts, all of which shall together constitute but one and the
same instrument.
12
IN WITNESS WHEREOF, the parties hereto have caused this Program
Amendment Agreement to be duly executed by their respective officers as of the
day and year first above written.
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC
By: /s/ M. L. Davis
--------------------------------------
Name: M. L. Davis
Title: Assistant Controller, Chrysler
Auto Receivables Company, a
member of DaimlerChrysler
Wholesale Receivables LLC
DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC
By: /s/ M. L. Davis
--------------------------------------
Name: M. L. Davis
Title: Assistant Controller
THE BANK OF NEW YORK,
not in its individual capacity, but solely
as CARCO Trust Trustee and as Indenture
Trustee
By: /s/ Scott J. Tepper
--------------------------------------
Name: Scott J. Tepper
Title: Vice President
DAIMLERCHRYSLER MASTER OWNER TRUST
By: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner Trustee
By: /s/ John J. Cashin
--------------------------------------
Name: John J. Cashin
Title: Vice President
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Owner Trustee
13
By: /s/ John J. Cashin
--------------------------------------
Name: John J. Cashin
Title: Vice President
14
EXHIBIT A
SALE AND SERVICING AGREEMENT
[see Exhibit 99.2 to this Form 8-K]
A-1
EXHIBIT B
RESTATED
RECEIVABLES PURCHASE AGREEMENT
[see Exhibit 99.4 to this Form 8-K]
B-1
EXHIBIT C
RESTATED
TRUST AGREEMENT
[see Exhibit 4.1 to this Form 8-K]
C-1
EXHIBIT D
RESTATED
INDENTURE
[see Exhibit 4.2 to this Form 8-K]
D-1
EXHIBIT E
RESTATED
SERIES 2002-A INDENTURE SUPPLEMENT
[see Exhibit 4.3 to this Form 8-K]
E-1
EXHIBIT F
RESTATED
SERIES 2002-B INDENTURE SUPPLEMENT
[see Exhibit 4.4 to this Form 8-K]
F-1
EXHIBIT G
RESTATED
SERIES 2003-A INDENTURE SUPPLEMENT
[see Exhibit 4.5 to this Form 8-K]
G-1
EXHIBIT H
RESTATED
SERIES 2004-A INDENTURE SUPPLEMENT
[see Exhibit 4.6 to this Form 8-K]
H-1
EXHIBIT I
RESTATED
SERIES 2004-B INDENTURE SUPPLEMENT
[see Exhibit 4.7 to this Form 8-K]
I-1
EXHIBIT J
RESTATED
ADMINISTRATION AGREEMENT
[see Exhibit 99.3 to this Form 8-K]
J-1