Exhibit 99.2
This AMENDED AND RESTATED ADMINISTRATION AGREEMENT dated as of December
16, 2004 (this "Agreement"), among DAIMLERCHRYSLER MASTER OWNER TRUST, a
Delaware statutory trust (the "Issuer"), DAIMLERCHRYSLER SERVICES NORTH
AMERICA LLC, a Michigan limited liability company, as administrator (the
"Administrator"), and THE BANK OF NEW YORK, a New York banking corporation,
not in its individual capacity but solely as Indenture Trustee (the "Indenture
Trustee").
WITNESSETH:
WHEREAS, the parties hereto have entered into an Administration
Agreement, dated as of June 1, 2002 (the "Existing Agreement"), pursuant to
which the Administrator has agreed to perform certain of the duties of the
Issuer and Chase Manhattan Bank USA, National Association (the "Owner
Trustee") under certain agreements relating to the Issuer and its issuance
from time to time of Auto Dealer Loan Asset Backed Notes in one or more series
or classes (collectively, the "Notes");
WHEREAS, certain of these agreements are being amended and restated as
of the date hereof by the parties thereto and a Sale and Servicing Agreement,
dated as of December 16, 2004 (as amended and supplemented from time to time,
the "Sale and Servicing Agreement"), is being entered into by DaimlerChrysler
Wholesale Receivables LLC ("DCWR"), as Seller, DaimlerChrysler Services North
America LLC, as Servicer, and the Issuer, in order to provide for, among other
things, the direct ownership of dealer wholesale receivables by the Issuer;
and
WHEREAS, the Issuer and the Owner Trustee wish to continue the
appointment of the Administrator, and the Administrator agrees to continue to
act in such capacity, on the terms set forth herein with respect to the
following: (i) the Sale and Servicing Agreement, (ii) the Amended and Restated
Indenture, dated as of December 16, 2004 (as amended and supplemented from
time to time, the "Indenture"), between the Issuer and the Indenture Trustee
(capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Indenture), (iii) each Indenture
Supplement (as amended and supplemented from time to time, an "Indenture
Supplement"), from time to time entered into by the Issuer and the Indenture
Trustee providing for the terms of a series or class of Notes; (iv) the
Amended and Restated Trust Agreement, dated as of December 16, 2004 (as
amended and supplemented from time to time, the "Trust Agreement"), between
DCWR, as beneficiary (in such capacity, the "Beneficiary"), and the Owner
Trustee; (v) each Letter of Representations (as amended and supplemented from
time to time, a "Note Depository Agreement"), from time to time entered into
by the Issuer, the Indenture Trustee, the Administrator and The Depository
Trust Company relating to a series or class of Notes; and (vi) such other
agreements, instruments and documents (as amended and supplemented from time
to time, the "Other Transaction Documents") from time to time entered into by
the Issuer pursuant to Section 2.03 of the Trust Agreement and the terms of
the Indenture and the related Indenture Supplements.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree to amend and restate the
Existing Agreement in its entirety as follows:
1. Duties of the Administrator.
(a) Duties with Respect to the Related Agreements.
(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee under
each Note Depository Agreement. In addition, the Administrator shall
consult with the Owner Trustee regarding the duties of the Issuer or the
Owner Trustee under the Sale and Servicing Agreement, the Indenture, the
Indenture Supplements, the Note Depository Agreements and the Other
Transaction Documents (collectively, the "Related Agreements"). The
Administrator shall monitor the performance of the Issuer and shall
advise the Owner Trustee when action is necessary to comply with the
Issuer's or the Owner Trustee's duties under any of the Related
Agreements. The Administrator shall prepare for execution by the Issuer,
or shall cause the preparation by other appropriate persons of, all such
documents, reports, filings, instruments, certificates and opinions that
it shall be the duty of the Issuer or the Owner Trustee to prepare, file
or deliver pursuant to any of the Related Agreements. In furtherance of
the foregoing, the Administrator shall take all appropriate action that
is the duty of the Issuer or the Owner Trustee to take pursuant to the
Indenture including, without limitation, such of the foregoing as are
required with respect to the following matters under the Indenture or an
Indenture Supplement:
(A) the delivery of an Officer's Certificate or an
Opinion of Counsel as to compliance with the Indenture (Indenture
Section 102);
(B) the delivery to the Indenture Trustee of the
Issuer Certificate relating to the form of Notes (Indenture Section
202);
(C) the preparation of or obtaining of the documents
and instruments required for authentication of the Notes and delivery of
the same to the Indenture Trustee (Indenture Sections 204 and 205);
(D) the duty to cause the Note Register to be kept and
to give the Indenture Trustee notice of any appointment of a new Note
Registrar and the location, or change in location, of the Note Register
(Indenture Section 305);
(E) the delivery to the Indenture Trustee and the Note
Rating Agencies of an Issuer Tax Opinion, and certain other documents
related to a new issuance of Notes (Indenture Section 310);
(F) the receipt of a confirmation from the Note Rating
Agencies and the delivery to the Indenture Trustee and the Note Rating
Agencies of an Issuer Tax Opinion in regard to a change in the Required
Subordinated Amount or the Overcollateralization Amount for any class or
series of Notes (Indenture Section 311);
(G) the duty to cause to be established and maintained
the Collection Account and the Excess Funding Account (Indenture Section
402);
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(H) the giving of written directions to the Indenture
Trustee regarding investment of funds on deposit in the Accounts
(Indenture Section 403);
(I) the giving of demand to the Indenture Trustee to
execute proper instruments acknowledging satisfaction and discharge of
the Indenture, and delivery to the Indenture Trustee of an Officer's
Certificate and an Opinion of Counsel regarding the satisfaction and
discharge of the Indenture (Indenture Section 601);
(J) the giving of notice to the Indenture Trustee in
connection with the cancellation of a Note (Indenture Section 603);
(K) the giving of written notice of each resignation
and each removal of the Indenture Trustee and each appointment of a
successor Indenture Trustee to each Noteholder and Note Rating Agency
(Indenture Section 810(f));
(L) the preparation of any instruments required in
connection with the resignation or removal of any Indenture Trustee,
including any instruments required to confirm more fully the rights,
power and trusts of any successor Indenture Trustee (Indenture Section
811);
(M) the giving of written notice of any merger,
conversion, consolidation or succession of the Indenture Trustee to the
Note Rating Agencies (Indenture Section 812);
(N) the approval of the appointment of an
Authenticating Agent (Indenture Section 814);
(O) the preparation of required tax information and
delivery thereof to the Indenture Trustee (Indenture Section 815);
(P) the furnishing of the Indenture Trustee with the
names and addresses of Noteholders during any period when the Indenture
Trustee is not the Note Registrar (Indenture Section 901);
(Q) the giving of notice to the Indenture Trustee when
the Notes are admitted to trading on any stock exchange (Indenture
Section 903(d));
(R) the preparation and, after execution by the
Issuer, the filing with the Commission, any applicable state agencies
and the Indenture Trustee of documents required to be filed on a
periodic basis with, and summaries thereof as may be required by rules
and regulations prescribed by, the Commission and any applicable state
agencies and the transmission of such summaries, as necessary, to the
Noteholders (Indenture Section 905);
(S) the completion and delivery to the Indenture
Trustee and the Note Rating Agencies of the Monthly Noteholder's
Statement (Indenture Section 907);
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(T) the completion of the Payment Instruction and
delivery of a copy thereof to the Indenture Trustee (Indenture Section
908);
(U) the giving of notice to the Servicer of the
Aggregate Series Nominal Liquidation Amount (including the component
amounts thereof) and such other information as may be necessary for the
Servicer to calculate certain of the amounts and percentages to be
included in the Monthly Noteholders' Statements and the Payment
Instructions (Indenture Section 909);
(V) the delivery of an Issuer Tax Opinion and an
Officer's Certificate in connection with the amendment of the Indenture
or Indenture Supplement or entering into a supplemental indenture
(Indenture Sections 1001 and 1002);
(W) the delivery to the Indenture Trustee of an
Opinion of Counsel in connection with the amendment of the Indenture or
Indenture Supplement or entering into a supplemental indenture
(Indenture Section 1003);
(X) the determinations in connection with the exchange
of Notes modified to conform to any amendment of the Indenture or
Indenture Supplement or to any supplemental indenture for Outstanding
Notes (Indenture Section 1006);
(Y) the duty to maintain an office, agency or Paying
Agent in each Place of Payment where Notes may be presented or
surrendered for payment, transfer or exchange and where notices or
demands to or on the Issuer may be served, including the duty to give
the Indenture Trustee notice of any change with respect thereto
(Indenture Section 1102);
(Z) the duty to cause each Paying Agent (other than
the Indenture Trustee) to deliver to the Indenture Trustee the
instrument specified in the Indenture regarding funds held in trust
(Indenture Section 1103);
(AA) the delivery of an annual compliance statement as
specified in the Indenture (Indenture Section 1104);
(BB) the doing or causing to be done of all things
necessary to preserve and keep in full force and effect the Issuer's
legal existence (Indenture Section 1105);
(CC) at the request of the Indenture Trustee, to
execute and deliver such further instruments and do such further acts as
may be reasonably necessary or proper to carry out more effectively the
purpose of the Indenture (Indenture Section 1106);
(DD) the giving of written notice to the Indenture
Trustee and the Note Rating Agencies of each Event of Default and each
default on the part of the Issuer or the Seller of its respective
obligations under the Sale and Servicing Agreement and any default of an
Enhancement Provider (Indenture Section 1108);
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(EE) the provision of any information to satisfy the
conditions set forth in Rule 144A(d)(4) under the Securities Act
(Indenture Section 1112);
(FF) the delivery to the Indenture Trustee of an
Officer's Certificate and Opinion of Counsel in connection with the
consolidation or merger of the Issuer, or conveyance or transfer of any
of its properties substantially as an entirety to any Person (Indenture
Section 1114);
(GG) the preparation and delivery of the written
notices required to be given by the Issuer in connection with a
redemption of Notes (Indenture Section 1203);
(HH) the taking of all actions necessary to obtain and
maintain a perfected lien on and security interest in the Collateral in
favor of the Indenture Trustee, and all related actions listed in
Section 1301 of the Indenture (Indenture Section 1301);
(II) the recording of the Indenture, if applicable
(Indenture Section 1301);
(JJ) delivery of an Officer's Certificate in
connection with the release of the Collateral (Indenture Section 1307);
(KK) delivery of Opinions of Counsel regarding the
Collateral (Indenture Section 1309);
(LL) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the Issuer has contracted to
perform its duties under the Indenture (Indenture Section 1310);
(MM) the delivery to the Indenture Trustee of a copy
of each agreement with a Noteholder to provide for a method of payment
or notices different from that provided for in the Indenture (Indenture
Section 1406);
(NN) the deposit of Receivables Sales Proceeds, if
any, for any series of Notes into the applicable Interest Funding
Account (Indenture Supplement);
(OO) the calculation of the Nominal Liquidation Amount
of the Notes of each series and the Overcollateralization Amount, if
any, for such series (Indenture Supplement);
(PP) the appointment of the Calculation Agent for any
series of Notes (Indenture Supplement); and
(QQ) with respect to any series of Notes, the election
to delay the commencement of the related Accumulation Period and extend
the length of the related Revolving Period (Indenture Supplement).
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(ii) The Administrator will:
(A) pay the Indenture Trustee from time to time
reasonable compensation for all services rendered by the Indenture
Trustee under the Indenture (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust);
(B) except as otherwise expressly provided in the
Indenture, reimburse the Indenture Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Indenture Trustee in accordance with any provision of the Indenture
(including the reasonable compensation, expenses and disbursements of
its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee, and hold it
harmless against, any losses, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the transactions contemplated
by the Indenture, including the costs and expenses of defending
themselves against any claim or liability (whether asserted by the
Issuer, the Servicer, any Holder or any other Person) in connection with
the exercise or performance of any of its powers or duties under the
Indenture; and
(D) indemnify the Owner Trustee and its agents for,
and hold them harmless against, any losses, liability or expense
incurred without negligence or bad faith on their part, arising out of
or in connection with the acceptance or administration of the
transactions contemplated by the Trust Agreement and the Related
Agreements, including the reasonable costs and expenses of defending
themselves against any claim or liability in connection with the
exercise or performance of any of their powers or duties under the Trust
Agreement or any Related Agreement.
The provisions of paragraphs (A) through (C) above will survive the
termination of this Agreement, the Indenture and the resignation or
removal of the Indenture Trustee under Section 810 of the Indenture, and
the provisions of paragraph (D) above will survive the termination of
this Agreement, the Trust Agreement and the resignation or removal of
the Owner Trustee under Section 8.01 of the Trust Agreement. If the
Administrator has made any payments pursuant to this Section 1(a)(ii)
and the Person to or on behalf of whom such payments are made thereafter
collects any such amount from others, such Person will promptly repay
such amounts to the Administrator.
(b) Additional Duties.
(i) In addition to the duties of the Administrator set forth
above, the Administrator shall perform such calculations and shall
prepare or shall cause the preparation by other appropriate persons of,
and shall execute on behalf of the Issuer or the Owner Trustee, all such
documents, reports, filings, instruments, certificates and opinions that
it shall be the duty of the Issuer or the Owner Trustee to prepare, file
or deliver pursuant to the Related Agreements, and at the request of the
Owner Trustee shall
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take all appropriate action that it is the duty of the Issuer or the
Owner Trustee to take pursuant to the Related Agreements. In furtherance
thereof, the Owner Trustee shall, on behalf of itself and of the Issuer,
execute and deliver to the Administrator and to each successor
Administrator appointed pursuant to the terms hereof, one or more powers
of attorney substantially in the form of Exhibit A hereto, appointing
the Administrator the attorney-in-fact of the Owner Trustee and the
Issuer for the purpose of executing on behalf of the Owner Trustee and
the Issuer all such documents, reports, filings, instruments,
certificates and opinions. Subject to Section 5 of this Agreement, and
in accordance with the directions of the Owner Trustee, the
Administrator shall administer, perform or supervise the performance of
such other activities in connection with the Collateral (including the
Related Agreements) as are not covered by any of the foregoing
provisions and as are expressly requested by the Owner Trustee and are
reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be
responsible for promptly notifying the Owner Trustee and the Certificate
Paying Agent (as defined in the Trust Agreement) in the event that any
withholding tax is imposed on the Issuer's payments (or allocations of
income) to the Beneficiary or any other holder of a Seller's Certificate
as contemplated in Section 4.01(b) of the Trust Agreement. Any such
notice shall specify the amount of any withholding tax required to be
withheld by the Certificate Paying Agent pursuant to such provision. The
Administrator shall perform all other duties expressly required to be
performed by the Administrator under the Trust Agreement.
(iii) In carrying out the foregoing duties or any of its
other obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its affiliates; provided,
however, that the terms of any such transactions or dealings shall be in
accordance with any directions received from the Issuer and shall be, in
the Administrator's opinion, no less favorable to the Issuer than would
be available from unaffiliated parties.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment
of the Administrator are non-ministerial, the Administrator shall not
take any action unless within a reasonable time before the taking of
such action, the Administrator shall have notified the Owner Trustee of
the proposed action and the Owner Trustee shall not have withheld
consent or provided an alternative direction. For the purpose of the
preceding sentence, "non-ministerial matters" shall include, without
limitation:
(A) the amendment of or any supplement to the
Indenture;
(B) the initiation of any claim or lawsuit by the
Issuer and the compromise of any action, claim or lawsuit brought by or
against the Issuer (other than in connection with the collection of the
Receivables);
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(C) the amendment, change or modification of the
Related Agreements;
(D) the appointment of successor Note Registrars,
successor Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Administrators or Successor
Servicers, or the consent to the assignment by the Note Registrar,
Paying Agent or Indenture Trustee of its obligations under the
Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not,
(x) make any payments to the Noteholders under the Related Agreements,
(y) sell the Collateral pursuant to the Indenture or (z) take any other
action that the Issuer directs the Administrator not to take on its
behalf.
2. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer, the
Owner Trustee and the Beneficiary at any time during normal business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to $200 per
month which shall be solely an obligation of the Beneficiary.
4. Additional Information to Be Furnished to Issuer. The Administrator
shall furnish to the Issuer from time to time such additional information
regarding the Collateral as the Issuer shall reasonably request.
5. Independence of Administrator. For all purposes of this Agreement,
the Administrator shall be an independent contractor and shall not be subject
to the supervision of the Issuer or the Owner Trustee with respect to the
manner in which it accomplishes the performance of its obligations hereunder.
Unless expressly authorized by the Issuer, the Administrator shall have no
authority to act for or represent the Issuer or the Owner Trustee in any way
and shall not otherwise be deemed an agent of the Issuer or the Owner Trustee.
6. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
7. Other Activities of Administrator. Nothing herein shall prevent the
Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such
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person or entity may engage in business activities similar to those of the
Issuer, the Owner Trustee or the Indenture Trustee.
8. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the dissolution
of the Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 8(e), the Administrator may resign its
duties hereunder by providing the Issuer with at least 60 days' prior written
notice.
(c) Subject to Section 8(e), the Issuer may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice.
(d) Subject to Section 8(e), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of termination
from the Issuer to the Administrator if any of the following events shall
occur:
(i) the Administrator shall default in the performance of
any of its duties under this Agreement and, after notice of such
default, shall not cure such default within ten days (or, if such
default cannot be cured in such time, shall not give within ten days
such assurance of cure as shall be reasonably satisfactory to the
Issuer);
(ii) a court having jurisdiction in the premises shall enter
a decree or order for relief, and such decree or order shall not have
been vacated within 60 days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, shall consent to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official for the Administrator or any
substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its property,
shall make any general assignment for the benefit of creditors or shall
fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section shall occur, it shall give written notice
thereof to the Issuer and the Indenture Trustee within seven days after the
happening of such event.
(e) No resignation or removal of the Administrator pursuant to
this Section shall be effective until (i) a successor Administrator shall have
been appointed by the Issuer and (ii) such successor Administrator shall have
agreed in writing to be bound by the terms of this Agreement in the same
manner as the Administrator is bound hereunder.
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(f) The appointment of any successor Administrator shall be
effective only after each Note Rating Agency confirms in writing that such
proposed appointment will not cause a Ratings Effect.
(g) Subject to Sections 8(e) and 8(f), the Administrator
acknowledges that upon the appointment of a Successor Servicer pursuant to the
Sale and Servicing Agreement, the Administrator shall immediately resign and
such Successor Servicer shall automatically become the Administrator under
this Agreement.
9. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a) or
the resignation or removal of the Administrator pursuant to Section 8(b) or
(c), respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such
termination pursuant to Section 8(a) deliver to the Issuer all property and
documents of or relating to the Collateral then in the custody of the
Administrator. In the event of the resignation or removal of the Administrator
pursuant to Section 8(b) or (c), respectively, the Administrator shall
cooperate with the Issuer and take all reasonable steps requested to assist
the Issuer in making an orderly transfer of the duties of the Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to:
DaimlerChrysler Master Owner Trust
c/o Chase Manhattan Bank USA, National Association
500 Stanton Christiana Road
Newark, Delaware 19713
Attention: Corporate Trustee Administration Department
(b) if to the Administrator, to:
DaimlerChrysler Services North America LLC
27777 Inkster Road
Farmington Hills, Michigan 48334
Attention: Assistant Secretary
(c) if to the Indenture Trustee, to:
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Administration--ABS Unit
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed
given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided above.
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11. Amendments. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the Administrator
and the Indenture Trustee, with the written consent of the Owner Trustee, but
without the consent of the Noteholders or the holders of the Seller's
Certificates, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying
in any manner the rights of the Noteholders or the holders of the Seller's
Certificates; provided that such amendment will not, in an Opinion of Counsel
delivered to the Indenture Trustee, materially and adversely affect the
interest of any Noteholder or holder of a Seller's Certificate. This Agreement
may also be amended by the Issuer, the Administrator and the Indenture Trustee
with the written consent of the Owner Trustee, the holders of Notes evidencing
at least a majority of the Outstanding Dollar Principal Amount of the Notes
affected by such amendment and the holders of Seller's Certificates evidencing
at least a majority of the Percentage Interests (as defined in the Trust
Agreement) of the outstanding Seller's Certificates affected by such
amendment, 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 Noteholders or holders of the Seller's
Certificates; provided, however, that no such amendment may (i) increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that are required to
be made for the benefit of the Noteholders or the holders of the Seller's
Certificates or (ii) reduce the aforesaid percentage of the holders of Notes
or Seller's Certificates which are required to consent to any such amendment,
without the consent of the holders of all the outstanding Notes or Seller's
Certificates, as the case may be. Notwithstanding anything to the contrary in
the immediately preceding sentence, any amendment to be effected pursuant to
such sentence without the consent of each adversely affected Noteholder shall
be subject to the Indenture Trustee's receipt of written confirmation from
each applicable Note Rating Agency that such amendment will not have a Ratings
Effect with respect to the adversely affected Notes. Notwithstanding the
foregoing, the Administrator may not amend this Agreement without the written
consent of the Beneficiary, which consent shall not be unreasonably withheld.
12. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Owner Trustee and subject to receipt of a confirmation from
each Note Rating Agency that such assignment will not cause a reduction,
qualification or withdrawal of any then current rating of any Notes. An
assignment with such consent and confirmation, if accepted by the assignee,
shall bind the assignee hereunder in the same manner as the Administrator is
bound hereunder. Notwithstanding the foregoing, this Agreement may be assigned
by the Administrator without the consent of the Issuer or the Owner Trustee to
a corporation or other organization that is a successor (by merger,
consolidation or purchase of assets) to the Administrator; provided that such
successor organization executes and delivers to the Issuer, the Owner Trustee
and the Indenture Trustee an agreement in which such corporation or other
organization agrees to be bound hereunder by the terms of said assignment in
the same manner as the Administrator is bound hereunder. Subject to the
foregoing, this Agreement shall bind any successors or assigns of the parties
hereto.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT
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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.
14. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts, each
of which when so executed shall be an original, but all of which together
shall constitute but one and the same agreement.
16. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
17. Not Applicable to DaimlerChrysler Services North America LLC in
Other Capacities. Nothing in this Agreement shall affect any obligation
DaimlerChrysler Services North America LLC may have in any other capacity.
18. Limitation of Liability of Owner Trustee and Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary,
this instrument 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
Trust Agreement, any beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder, 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 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 Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by Indenture Trustee not in its
individual capacity but solely as Indenture Trustee and in no event shall
Indenture Trustee 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.
19. Third-Party Beneficiary. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
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20. No Petition. The Administrator hereby covenants and agrees that it
will not at any time institute against the Issuer or DCWR any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar
law.
* * * * * * *
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IN WITNESS WHEREOF, the parties have caused this Amended and
Restated Administration Agreement to be duly executed and delivered as of the
day and year first above written.
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
THE BANK OF NEW YORK,
not in its individual capacity but solely
as Indenture Trustee
By: /s/ Scott J. Tepper
--------------------------------
Name: Scott J. Tepper
Title: Vice President
DAIMLERCHRYSLER SERVICES
NORTH AMERICA LLC,
as Administrator
By: /s/ M. L. Davis
--------------------------------
Name: M. L. Davis
Title: Assistant Controller
EXHIBIT A
POWER OF ATTORNEY
STATE OF NEW YORK }
}
COUNTY OF NEW YORK }
KNOW ALL MEN BY THESE PRESENTS, that Chase Manhattan Bank USA, National
Association, a national banking association, not in its individual capacity
but solely as owner trustee (the "Owner Trustee") for DaimlerChrysler Master
Owner Trust (the "Trust"), does hereby make, constitute and appoint
DaimlerChrysler Services North America LLC, as administrator under the Amended
and Restated Administration Agreement dated as of December 16, 2004 (as
amended and supplemented from time to time, the "Administration Agreement"),
among the Trust, DaimlerChrysler Services North America LLC and The Bank of
New York, as Indenture Trustee, as the same may be amended from time to time,
and its agents and attorneys, as Attorneys-in-Fact to execute on behalf of the
Owner Trustee or the Trust any and all such documents, reports, filings,
instruments, certificates and opinions as it should be the duty of the Owner
Trustee or the Trust to prepare, file or deliver pursuant to the Related
Agreements, or pursuant to the Trust Agreement, including, without limitation,
to appear for and represent the Owner Trustee and the Trust in connection with
the preparation, filing and audit of federal, state and local tax returns
pertaining to the Trust, if any, and with full power to perform any and all
acts associated with such returns and audits, if any, that the Owner Trustee
could perform, including, without limitation, the right to distribute and
receive confidential information, defend and assert positions in response to
audits, initiate and defend litigation, and to execute waivers of restrictions
on assessments of deficiencies, consents to the extension of any statutory or
regulatory time limit, and settlements.
All powers of attorney for this purpose heretofore filed or executed by
the Owner Trustee are hereby revoked.
Capitalized terms that are used and not otherwise defined herein shall
have the meanings ascribed thereto in the Administration Agreement.
EXECUTED this ___ of _____________, 200_.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Owner Trustee
A-1
______________________________________
Name:
Title:
A-2
STATE OF ______________}
}
COUNTY OF _____________}
Before me, the undersigned authority, on this day personally appeared
________________________________________,known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that
he/she signed the same for the purposes and considerations therein expressed.
Sworn to before me this ___
day of _______, 200__.
_______________________________________
Notary Public - State of ______________
A-3